Prather v. Callon Petroleum Operating Co., Inc , No. 11-20-00189-CV, 2022 WL 1498099 (Tex. App.—Eastland May 12, 2022, no pet. h.).


"Survivor(s) thereof"

The testatrix devised property to her two children but if a child predeceased the testatrix, the property would pass “to the survivor(s) thereof.” One child predeceased the testator. The litigants advanced two interpretations of this language. First, that the surviving child was the sole beneficiary of the devised property being the survivor of the two beneficiaries. Second, that the successors in interest to the predeceased child’s estate owned the share that would have passed to the predeceased child because they were the survivors (children) of the deceased beneficiary.

Both the trial and appellate courts agreed the surviving child was the sole beneficiary of the property because the surviving child was the survivor of the two named beneficiaries. The appellate court began its analysis by holding the will was unambiguous and thus is construed as a matter of law. Then, the court determined that the phrase “to the survivor(s) thereof” constitutes words of survivorship and does not mean heirs of a predeceased beneficiary. “Common sense dictates that a ‘survivor’ is one who remains alive or survives an event; we cannot conceive of a contrary interpretation.” Id. at *6.

Moral:  The phrase “survivor(s) thereof” will typically refer to people in a designated group who outlive the testator and not the heirs of a deceased group member.