Court Holds That A Wife Devised Her Property In Fee Simple Determinable To Her Husband With An Executory Interest To Her Son; So, After The Husband Died, If He Still Owned The Property, It Went To The Son

by Winstead PC

In In re Estate of Hernandez, the issue in the case was whether clauses in a will conveyed a life estate to the decedent’s husband. No. 05-16-01350-CV, 2018 Tex. App. LEXIS 755 (Tex. App.—Dallas January 24, 2018, no pet. history). The will stated:

The rest and residue of my estate, both real, personal and mixed property of every kind and character whatsoever I may own or have any interest in at my death, is hereby bequeathed to my husband, ARTURO HERNANDEZ, to do with as he desires. Upon the death of my husband, ARTURO HERNANDEZ, I give, devise and bequeath any of the rest and residue of my estate both real, personal and mixed property of every kind whatsoever that he may own or have any interest in to my son, ERIC H. FARLEY.

Id. The court of appeals noted as follows regarding fee simple absolute:

“An estate in land that is conveyed or devised is a fee simple unless the estate is limited by express words or unless a lesser estate is conveyed or devised by construction or operation of law.” Generally, the greatest estate will be conferred on a devisee that the terms of the devise permit. “[W]hen an estate is given in one part of a will, in clear and decisive terms, it cannot be cut down or taken away by any subsequent words that are not equally clear and decisive.” A lesser estate must be created by express words or operation of law. Otherwise, a devise is read to be in fee simple absolute. A “fee simple absolute” is an estate over which the owner has unlimited power of disposition in perpetuity without condition or limitation. A fee simple absolute is an estate in fee simple that is not subject to a special limitation, a condition subsequent, or an executory limitation. A fee simple estate subject to an “executory limitation” is called a “determinable fee simple estate” or a “fee simple determinable.” An “executory limitation” is an event which, if it occurs, automatically divests one of the devised property. A “fee simple determinable” is an estate that automatically expires on the happening of a named event. This is a fee simple interest in every respect, except that it passes to another if the contingency occurs. Until the occurrence of the contingency, the recipient has an “executory interest.” While no specific words are needed to create a fee simple determinable, certain words generally indicate an intent to create one. The terms “while,” “during,” “until,” or “so long as” are examples of words used to establish an intent to create a fee simple determinable. Typical language establishing a fee simple determinable includes: “When I die, my property goes to A (in fee), and when A dies, any property remaining goes to B.” The first taker of a fee simple determinable has complete power of control and disposition of the property during his lifetime. In a fee simple determinable, the first taker is entitled to the proceeds of the property disposed of by him. The first taker may devise the proceeds, and the executory interest holder has no right to trace and recover those proceeds.

Id. (internal citations omitted). The court then described life estates:

A will creates a “life estate” if the language of the will manifests an intention on the testator’s part to pass to the first taker a right to possess, use, or enjoy the property during his life. A testator may give the power of disposition with the life estate. No particular language is required to make a life estate. A “life estate” is created by words showing intent to give the right to possess, use, and enjoy the property during life. There can be no life estate in property, real or personal, without a remainder. Dispositions of life estate property by the life tenant must be within the authority of the will. If the life tenant is given the power to sell and reinvest any life tenancy property, the life tenant is subject, with respect to the sale and reinvestment of the property, to all of the fiduciary duties of a trustee imposed by the Texas Trust Code or the common law. Because a life estate terminates upon the death of the life tenant, the power to dispose of the property does not empower a life tenant to devise any of the property that remains at his death. Proceeds of the sale made by the life tenant, undisposed of at the time of his death, as well as the unsold part of the very property devised, pass to the remainderman. If a life estate holder has the right of full disposition and the right to use the proceeds without accounting to anyone, then the remainderman is entitled to trace the proceeds of the sale.

Id. (internal citations omitted).

Under this precedent, the court analyzed whether the spouse had a life estate or fee simple determinable in the property:

The part of the residuary clause devising the estate to Arturo Hernandez is not limited to his right to possess, use or enjoy the property during his life. Instead, the will states that Arturo Hernandez has the right “to do with [the property] as he desires.” Although there is no specific formula of words required to create a life estate, Patricia Hernandez’s will must have clearly and unequivocally provided for a life estate to overcome the presumption that she intended to give Arturo Hernandez an estate greater than a life estate. Here, the clause does not explicitly grant Arturo Hernandez the property for his life using a phrase such as “during his life” or “as long as he lives.” Further, the will states the “rest and residue” of the estate passes to Eric Farley. In accordance with the applicable rules of interpretation, we conclude the language in Paragraph IV of the will unambiguously, as a matter of law, conveyed the property of Patricia Hernandez to Arturo Hernandez in fee simple determinable. The first sentence in Paragraph IV, “my estate . . . is hereby [devised] to my husband, ARTURO HERNANDEZ, to do with as he desires,” definitively conveys a fee simple in Arturo Hernandez. However, the second sentence in Paragraph IV limits that fee simple interest by expressly stating, “[u]pon the death of my husband, ARTURO HERNANDEZ, I give, devise and bequeath any of the rest and residue of my estate . . . that he may own or have any interest in to my son, ERIC H. FARLEY,” devised to Eric Farley whatever interest Arturo Hernandez, upon his death, still held in the property. The occurrence of the “executory limitation,” i.e., Arturo Hernandez’s death, automatically divested his estate of the remaining devised property operating as a fee simple determinable causing that property to pass to Eric Farley in fee simple absolute. Our conclusion is consistent with standard words and phrases that indicate an intent to create a fee simple determinable.

Id. The court held that the will conveyed the property in fee simple determinable to Arturo Hernandez with an executory interest to Eric Farley in fee simple absolute.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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