Guilliams v. Koonsman
57 A.L.R. 2d 97, 279 S.W.2d 579, 154 Tex. 401 (1955)
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Rule of Law:
A devise to a person 'and to his child or children if any survive him,' followed by a gift over if that person dies without issue, creates a life estate in the initial person and a contingent remainder in fee to their surviving children, not a defeasible fee.
Facts:
- J. J. Koonsman executed a will containing several dispositive paragraphs.
- Paragraph four devised real property to his son, Alvin Koonsman, 'and to his child or children if any survive him,' with a gift over to J. J. Koonsman's other children, Jesse J. Koonsman and Mrs. Cora Quilliams, if Alvin died 'without issue surviving him.'
- Paragraphs five and six of the same will used different language, devising other properties to his children with a gift over if they died 'without issue surviving,' which is language that typically creates a defeasible fee estate.
- J. J. Koonsman died on March 6, 1942, at which time the will became effective.
- At the time of J. J. Koonsman's death, his son Alvin had one child, John Billy Koonsman, who had been conceived but was not yet born (in esse).
Procedural Posture:
- A lawsuit was filed in a Texas trial court seeking a declaratory judgment to construe the fourth paragraph of J. J. Koonsman's will.
- The trial court held that the paragraph created a 'defeasible fee' estate in Alvin Koonsman.
- The judgment of the trial court was appealed to the Texas Court of Civil Appeals.
- The Court of Civil Appeals affirmed the trial court's ruling.
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Issue:
Does a devise to a person 'and to his child or children if any survive him,' followed by a gift over upon his death without issue, create a defeasible fee estate in that person?
Opinions:
Majority - Justice Calvert
No. This language creates a life estate in Alvin Koonsman, with a contingent remainder in fee to his surviving children, and an alternative contingent remainder to the other named relatives. The cardinal rule of will construction is to enforce the testator's intent, which is found by looking at the will as a whole. The testator used different language in paragraph four than in paragraphs five and six, where he clearly created defeasible fee estates. This difference in language cannot be ignored and signifies a different intent. The specific phrase 'if any survive him' makes survival a condition precedent to the children taking the property. This has two effects: first, it limits Alvin's interest to a life estate because his children are intended to take the property after him, not jointly with him. Second, it makes the children's remainder interest contingent upon them outliving Alvin. Consequently, the gift over to Jesse and Cora is an alternative contingent remainder, which will only vest if Alvin dies without any surviving children.
Analysis:
This decision provides a crucial illustration of how specific, conditional phrasing in a will can fundamentally alter the nature of a property interest. By distinguishing the phrase 'and to his child or children if any survive him' from more standard language creating a defeasible fee, the court reinforces the principle that every word in a will must be given meaning. The case clarifies the distinction between a contingent remainder and a vested remainder subject to divestment, emphasizing that when survivorship is a condition precedent integrated into the gift itself, the remainder is contingent. This holding guides future will interpretation by showing that even subtle variations in language between different clauses of the same document can indicate a deliberate difference in the testator's intent.
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