Ford v. Allen
526 S.W.2d 643, 1975 Tex. App. LEXIS 2935 (1975)
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Rule of Law:
A will provision that purports to restrain the alienation of real property by restricting its sale or mortgage is void as repugnant to the grant when the will otherwise clearly devises a fee simple estate to the beneficiary. Such a restraint does not reduce the fee simple estate to a lesser interest, such as a life estate.
Facts:
- Chester Melvin Ford and Lola Mae Ford were a married couple with one son together, Clyde M. Ford.
- Lola Mae Ford also had three grandsons from a previous marriage: Ronald, James, and Claude Allen.
- In April 1960, Chester and Lola Mae each executed identical holographic wills.
- Each will devised all property to the surviving spouse 'to do with as she [or he] see fit.'
- Each will also contained a clause stating the surviving spouse was not to 'Sell, Morage [sic], or Lease any of our real Estate for more than Three (3) years without the written agreement of our son Clyde Melvin Ford.'
- Chester Ford died on November 25, 1972, and his entire estate passed to his wife, Lola Mae.
- Lola Mae Ford died less than a month later, on December 18, 1972, without having created a new will to name a devisee in place of her deceased husband.
Procedural Posture:
- Clyde M. Ford sued his mother's three grandsons in a Texas trial court, seeking a judicial construction of his parents' wills.
- The case was tried before the court without a jury (a bench trial).
- The trial court entered judgment in favor of the defendants (the Allen grandsons), ruling that the wills were not ambiguous and that Lola Mae Ford died intestate after receiving fee simple title to all property from her husband's will.
- The trial court found the restrictive language to be a void restraint on alienation.
- Clyde M. Ford, as appellant, appealed the trial court's judgment to the Texas Court of Civil Appeals.
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Issue:
Does a provision in a will that restricts a devisee from selling, mortgaging, or leasing real property without the consent of a third party convert what would otherwise be a fee simple devise into a lesser estate, such as a life estate or a trust?
Opinions:
Majority - O’Quinn, Justice
No, such a provision does not convert a fee simple devise into a lesser estate. The language in the wills clearly and unambiguously devising all property to the surviving spouse 'to do with as she see fit' created a fee simple estate. The subsequent language attempting to restrict the sale, mortgage, or lease of the property is a restraint on alienation, which is repugnant to a fee simple devise and is therefore legally void. Courts cannot use extrinsic evidence of intent to rewrite the plain language of a will, and because there was no other language in the wills 'clearly showing a lesser estate than the fee was intended to be devised,' the initial grant of a fee simple stands.
Analysis:
This decision reaffirms the strong common law and statutory preference for construing devises as fee simple absolute and the corresponding hostility toward restraints on alienation. It clarifies that a mere restriction on the power to sell, without further language creating a different type of estate, is insufficient to overcome the presumption of a fee simple grant. The case serves as a critical reminder to estate planners that creating a life estate or trust requires explicit, unambiguous language; attempting to control a beneficiary's use of property after granting them full ownership is legally ineffective. This precedent reinforces the principle that courts will not rewrite an unambiguous will based on extrinsic evidence of what the testator may have intended.
