In re Estate of Hernandez, No. 05-16-01350-CV, 2018 WL 525762 (Tex. App.—Dallas Jan. 24, 2018, no pet.).
The key issue in the this case what interest
Testatrix devised in her will when she said:
The rest and residue of my estate * * * to my
husband * * * to do with as he desires. Upon the death of my husband
* * *, I give * * * any of the rest and residue of my estate* * *
that he may own or have any interest in to my son * * *.”
After the husband died, a dispute arose over the
ownership of the property. The son asserted the husband received a life
estate and that he (the son) was the remainder beneficiary and thus he
is now the fee owner of the property. On the other hand, the executor of
the husband’s estate claimed that the husband received a fee simple
absolute in the property. The trial court held that this provision was
ambiguous and that the husband received a life estate with the remainder
to the son.
The appellate court determined that the provision
is unambiguous. The court explained that merely because litigants have
different opinions on the meaning of the provision does not make it
ambiguous. The court then determined that the trial court was incorrect
in finding that the husband received a life estate. The court pointed
out that the devise did not use any term traditionally associated with a
life estate such as “for life.” Thus, the husband received a fee simple
but one that was subject to defeasance, that is, any property remaining
after he dies, passes to the son. Accordingly, the court held that the
husband received a fee simple determinable and the son an executory
interest so that son now owns the remaining property in fee simple
absolute.
Moral: The court did not correctly identify
the interest husband received. After the condition is violated in a fee
simple determinable, the property returns to the grantor or, if the
grantor is deceased, to the grantor’s successors in interest. The
grantor retains a possibility of reverter. What the testatrix actually
created was a fee simple subject to an executory limitation because upon
breach of the condition, the property would divest a prior vested
interest and pass to another grantee, that is, the son who holds the
executory interest.