In Knopf v. Gray, a decedent died in 1993, and her will was admitted to probate the same year. No. 10-15-00273-CV, 2017 Tex. App. LEXIS 191 (Tex. App.—Waco January 11, 2017, no pet. history). Her will provided that “I give all my estate to my son Bobby Gray” and named him as her executor. It later provided: “Now Bobby I leave the rest to you, everything, certificates of deposit, land, cattle and machinery. Understand the land is not to be sold but passed on down to your children, Annette Knopf, Allison Kilway, and Stanley Gray, take care of it and try to be happy.” Bobby Gray later transferred portions of the land referenced in the will to a third party, and Annette Knopf and Stanley Gray filed suit seeking a declaratory judgment that Bobby Gray only held a life estate in the property and could not convey a fee simple interest. The third party and Knopf and Gray filed motions for summary judgment, and the trial court granted the third party’s motion and entered a final judgment. Knopf and Gray appealed and argued that the clause “understand the land is not to be sold but passed on down to your children” creates a life estate in the land for Bobby with the remainder interest going to the children.
The court of appeals affirmed the trial court’s judgment. The court held that “[a]n 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.” With respect to the creation of a life estate, the court held that no particular words are needed to create a life estate, but the words used must clearly express the testator’s intent to create a life estate. The court held that the language did not create a life estate:
Mrs. Allen states in her will “I leave the rest to you, everything …” Mrs. Allen does not reference the life or death of Bobby. In a paragraph following the contested provision, Mrs. Allen leaves her niece a property and also “the right to stay at the Camp House anytime she wishes to. This is a lifetime privilege to her.” Mrs. Allen specifically limited that bequest to the lifetime of her niece. She makes no such reference in the grant to Bobby to limit the bequest to his lifetime. Mrs. Allen does not clearly express an intent to give Bobby a life estate in the property, and upon his death devise the property to her grandchildren. The language “Understand the land is not to be sold but passed on down to your children” is not a devise to the children from Mrs. Allen, but rather an instruction to Bobby to pass the land down to his children.
Rather, the court held that the language was simply a void attempt to have a restraint on alienation:
A general restraint on the power of alienation, when incorporated in a deed or will otherwise conveying a fee simple right to the property, is void. The contested provision grants Bobby a fee simple in the property, but restricts Bobby from selling the property, and instructs him to pass the property on to his children. Therefore, the contested provision is void as a disabling restraint. Appellants argue that even if the language “understand the land is not to be sold” is void as a disabling restraint, the phrase “but passed on down to your children” creates a remainder interest in the children. There is nothing in the language used to clearly express that Mrs. Allen was making a gift to the children. The language used instructs Bobby to pass the land to the children. We find that the trial court did not err in finding that the Allen Will devised real property in fee simple to Bobby Gray and that Appellants hold no remainder interest. We overrule the sole issue.
Accordingly, the court affirmed the judgment for the third party and the executor. There was a dissenting justice who would have held that there was a fact question on the decedent’s intent regarding a life estate and would not have found the will’s language to be a restraint on alienation.