Ola Kathleen Parker, Independent of the Estate of J. Loyd Parker, III v. Michelle Elise Parker Jordan and Allison Renee Parker ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
OLA KATHLEEN PARKER, Independent §
Executor of the Estate of J. LOYD No. 08-19-00121-CV
PARKER, III, Deceased, §
Appeal from
Appellant, §
the 143rd Judicial District Court
v. §
of Reeves County, Texas
MICHELLE ELISE PARKER JORDAN §
AND ALLISON RENEE PARKER, (TC#16-03-21432-CVR)
Appellees.
OPINION
This is a trespass-to-try-title and declaratory judgment action brought by Ola Kathleen
Parker (“Kathy”) against her daughters Michelle Elise Parker Jordan (“Elise”) and Allison Renee
Parker (“Allison”) to resolve a dispute concerning the breadth of a conveyance in a 1998 Gift
Deed, executed by J. Loyd Parker, III (“Loyd III”) (Kathy’s husband and father to Elise and
Allison), prior to his 2014 death.
In four issues, Kathy contends the trial court erred in granting summary judgment in favor
of Elise and denying Kathy’s motion for summary judgment because: (1) the gift deed does not
clearly and expressly convey the remainder interest at issue and the evidence conclusively
established that Loyd III’s intent was not to convey that interest in the gift deed; (2) alternatively,
even if the remainder interest was mistakenly conveyed in the gift deed, Kathy is entitled to reform
the language in the gift deed to reflect Loyd III’s true intent, and Elise failed to establish as a matter
of law that limitations barred Kathy’s right to reformation; (3) Kathy raised a fact issue as to
whether Elise was estopped from claiming the remainder interest because for 18 years Elise agreed
that no such conveyance occurred; and (4) the trial court erred in overruling Kathy’s objection to
Elise’s declaration.
FACTUAL BACKGROUND
A. The Original Cottonwood Interest
The Cottonwood Ranch (“Cottonwood”) is located in Reeves and Culberson Counties,
Texas. J.B. Young and Loyd Jinkens owned Cottonwood in equal, undivided 1/2 interests. When
Young died in 1956, his daughter Ruthie Young Parker (“Ruthie”) inherited an undivided 1/6
interest in Cottonwood in trust as her separate property. In 1957, Ruthie and her husband, J. Loyd
Parker, Jr. (“Loyd Jr.”), purchased Jinkens’ undivided ½ interest. Ruthie and Loyd Jr. then
collectively owned an undivided 2/3 interest in Cottonwood as follows:
Owner Nature of Interest Percentage
Ruthie Separate-acquired in 1956 16.66% (1/6)
(Held in Trust)
Loyd Jr. and Ruthie Community-acquired in 1957 50.00% (1/2)
Total 66.66% (2/3)
B. The 1985 Life Estate
When Loyd Jr. died in 1985, his will devised “all of [his] estate, both real and personal,
and both community and separate, to [his] wife [Ruthie] in a life estate with remainder to [his]
children, J. Loyd Parker, III and Pamela Parker Clifton, equally, or to their issue, per stirpes.” The
will further expressly reserved “broad” and “unfettered” powers to Ruthie as the life tenant to:
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[B]uy, sell, mortgage, lease for any term both surface and minerals, even though it
extends beyond her life tenancy . . . and may otherwise deal with, manage, and
control the assets as if she owned them in fee simple and without joinder by any
remaindermen and without consultation with any remaindermen, nevertheless
preserving the corpus for the remainder. . . directing only that interest in the corpus
and proceeds from sale or mortgage of the life tenancy be preserved for the
remaindermen . . . .
In case of doubt over authority to act, the doubt shall be resolved in favor
of my spouse having full authority without joinder by the remaindermen.
After Loyd Jr.’s death, Cottonwood was owned by Ruthie as follows:
Owner Nature of Interest Percentage
Ruthie Separate – acquired in 1956 16.666% (1/6)
(Held in Trust)
Ruthie Separate—acquired in 1957 25.00% (1/4)
(Ruthie’s 1/2 of former community interest)
Ruthie Life Estate —acquired in 1985 25.00% (1/4)
(remainder to Loyd III and Pamela)
Total 66.666% (2/3)
C. Ruthie Conveys Her Separate ¼ Interest Acquired in 1957 to Loyd III and
Pamela in a 1990 Warranty Deed and 1993 Correction Deed
In 1990, Ruthie deeded her undivided ¼ interest, acquired in 1957, to Loyd III and Pamela
in equal shares (the “1990 Deed”). In 1993, Ruthie signed a Correction Deed to correct the
description of the property and to clarify that the 1990 Deed conveyed only Ruthie’s undivided ¼
interest acquired in 1957, not the ¼ Life Estate interest she acquired under Loyd Jr.’s will in 1985.
After delivery of the 1990 Deed, the Parker Interest in Cottonwood was owned as follows:
Owner Nature of Interest Percentage
Ruthie Separate –acquired in 1956 16.666% (1/6)
(Held in Trust)
Ruthie Life Estate-acquired in 1985 25.00% (1/4)
(remainder to Loyd III and Pamela)
Loyd III Separate--acquired in 1990 12.50% (1/8)
Pamela Separate--acquired in 1990 12.50% (1/8)
Total 66.666% (2/3)
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D. The 1998 Gift Deed
In 1998, according to Lois Kapp, the Parker family’s long-time accountant, Kapp suggested
to Loyd III that he gift to his daughters, Elise and Allison, the undivided 1/8 interest Loyd III
received from Ruthie in the 1990 Deed and referenced in the 1993 Correction Deed. On June 5,
1998, Loyd III signed a warranty deed conveying by gift to Elise and Allison “all of [his] right,
title and interest in and to” the described Cottonwood tracts of land and described the consideration
therefor as “love and affection which Grantor bears toward the Grantee herein” (“1998 Gift
Deed”). The language in the deed did not expressly reference either the 1/8 interest Loyd III
acquired from Ruthie in 1990 or Loyd III’s 1/8 remainder interest.
After the 1998 conveyance, Loyd III filed a gift tax return, in which he described the gift
as follows: “The property given to the two donees represents one sixteenth of the entire land in the
tract for each of the donees.” The gift tax return did not include any reference to the 1/8 remainder
interest. Kapp testified that if Loyd III had also gifted his remainder interest, it was required to be
listed and valued in the gift tax return.
Moreover, after the 1998 conveyance, Loyd III, Elise, and Allison signed three oil and gas
leases with Clay Johnson. Loyd III signed these leases as “Remainderman of Ruthie’s Young
Parker life estate.” Likewise, the division order issued in 1999 listed Loyd III as remainderman
and Elise and Allison as owners of only 1/16 each.
According to Kathy, after the 1998 conveyance, the Parker Interest in Cottonwood was
owned as follows:
Owner Nature of Interest Percentage
Ruthie Separate- Held in Trust 16.666% (1/6)
acquired in 1956
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Ruthie Life Estate-acquired in 1985 25.00% (1/4)
(remainder to Loyd III and Pamela)
Pamela Separate-acquired in 1990 12.50% (1/8)
Allison Separate-acquired in 1998 6.25% (1/16)
Elise Separate-acquired in 1998 6.25% (1/16)
Total 66.666% (2/3)
E. Loyd III and Pamela Inherit Their Reminder Interests In Cottonwood Upon
the Expiration of Ruthie’s Life Estate in 2006.
Ruthie’s death in 2006 extinguished her life estate, which permitted Loyd III and Pamela
to inherit their remainder interest in Cottonwood. According to Kathy, upon Ruthie’s death, the
Parker Interest in Cottonwood was owned as follows:
Owner Nature of Interest Percentage
Pamela Separate- 33.333% (1/3)
acquired in 1990 and 2006
Loyd III Separate-acquired in 2006 20.833% (5/24)
Allison Separate-acquired in 1998 6.25% (1/16)
Elise Separate-acquired in 1998 6.25% (1/16)
Total 66.666% (2/3)
From 2006 to December 2015, Elise paid property taxes on Cottonwood based on a 1/16
ownership interest; received and accepted payments from Cottonwood’s grass tenant based on her
1/16 ownership interest; and participated in the purchase of approximately 2,000 adjacent acres in
proportion to her 1/16 ownership interest. In 2010, a title opinion was issued opining Elise and
Allison each owned an undivided 1/16 interest. Based on this ownership, the parties executed three
oil and gas leases and accepted bonus payments in accordance with this division.
In approximately 2013, however, after another entity succeeded to the existing leases, it
issued a division order crediting Elise with ownership of a 1/8 interest, rather than 1/16. Elise’s
husband, Tommy Jordan, emailed the entity questioning its calculations, writing, “[I]n your email
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you state that your records indicate Elise owns 1/8 of the minerals in the tract. Our records (see
attached) indicate she actually owns 1/16.” Tommy then emailed Bob McCamey, the family
member who historically managed Cottonwood, writing, “As for our interest, it should be what
Loyd [III] deeded to [E]lise- 1/16 (.0625).” McCamey asked the new entity for clarification of its
calculations. Thereafter, an “option division agreement” was issued that was consistent with the
family’s long-held beliefs as to their ownership interests, i.e., Elise owned 1/16 and Loyd III owned
5/24.
On August 20, 2013, after receiving the corrected option division agreement, Patrick
Clifton sent an email to Cottonwood owners asking them to verify their “decimal interest” by
signing and scanning back the option division agreement to Brenda Guzman. Loyd III forwarded
Patrick’s email to Kapp, noting, “These % look correct and add up to me. Thought I would send it
on to you to verify.” The attachment to Loyd III’s email listed him as owning 0.2083334 (5/24),
and Elise and Allison were listed as owning 0.0625 (1/16) each. After Kapp confirmed the
percentages were correct, Loyd III signed the option division agreement. Elise and Allison also
signed, acknowledging their ownership of 1/16 each. Payments were subsequently issued based
on Elise’s 1/16 ownership interest. Elise received the same bonus payment as in 2010.
F. Loyd III Dies in 2014 and Kathy Inherits Loyd III’s Property Interests.
Loyd III died in 2014. The probate court admitted his will to probate and appointed Kathy
executor of the estate. Kathy was bequeathed Loyd III’s real and personal property, including his
5/24 undivided interest in Cottonwood, as trustee under Loyd III’s will. Following Loyd III’s
death, according to Kathy, the Parker Interest in Cottonwood is:
Owner Nature of Interest Percentage
Pamela Separate- 33.333% (1/3)
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acquired in 1990 and 2006
Kathy Separate-acquired in 2014 20.833% (5/24)
Allison Separate-acquired in 1998 6.25% (1/16)
Elise Separate-acquired in 1998 6.25% (1/16)
Total 66.666% (2/3)
G. After Loyd III’s death in 2014, Elise acknowledges her 1/16 ownership until
February 2016.
Following Loyd III’s death in 2014 until December 2015, Elise continued to acknowledge
her 1/16 ownership interest by accepting lease related payments in proportion to only her 1/16
interest. And when the Young & Parker Partnership was terminated in December of 2015, Elise
accepted that her interest therein was limited to 1/16.
In 2016, however, after Endurance Resources leased Cottonwood and issued division
orders to the owners, they credited Elise with the 1/8 remainder interest. Elise’s husband Tommy
Jordan once again questioned Bob McCamey about the calculation. Jordan then responded to
Endurance and pointed out its error in calculating Elise’s ownership, stating that Elise only owned
an undivided 1/16 interest. Endurance responded that Elise, Allison, and Kathy could stipulate as
to the correct allocation of their interests, but instead of doing so, on or about February 11, 2016,
Elise signed the division order based on the higher interest percentage.
On March 2, 2016, Kathy filed this trespass to try title and declaratory judgment action.
Unlike Elise, Allison does not assert a claim to the remainder interest. Allison agrees with Kathy
that she and Elise own only an undivided 1/16 interest each in Cottonwood.
STANDARD OF REVIEW
We construe a deed as a matter of law only if it is unambiguous. ConocoPhillips Co. v.
Koopmann, 547 S.W.3d 858, 874 (Tex. 2018). If a deed is subject to two or more reasonable
interpretations, it is ambiguous. URI, Inc. v. Kleberg County, 543 S.W.3d 755, 765 (Tex. 2018);
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BNSF Railway Co. v. Chevron Midcontinent, LP., 528 S.W.2d 124, 128 (Tex.App.—El Paso 2017,
no pet.). An ambiguity does not arise simply because the parties interpret the deed differently.
Piranha Partners v. Neuhoff, 596 S.W.3d 740, 743-44 (Tex. 2020). A deed is not ambiguous if it
can be given a definite or certain meaning as a matter of law. URI, 543 S.W.3d at 765. “When
construing an unambiguous deed, our primary duty is to ascertain the intent of the parties from all
of the language within the four corners of the [instrument].” Wenske v. Ealy, 521 S.W.3d 791, 794
(Tex. 2017). The courts will enforce an unambiguous instrument as written; and, in the ordinary
case, the writing alone will be deemed to express the intention of the parties. Sun Oil Co.
(Delaware) v. Madeley, 626 S.W.2d 726, 728 (Tex. 1981). Further, “we consider the words used
in light of the facts and circumstances surrounding the instrument's execution.” U.S. Shale Energy
II, LLC v. Laborde Properties, L.P., 551 S.W.3d 148, 151 (Tex. 2018). [Internal quotations marks
and brackets omitted]. “We may consider such circumstances to the extent they inform, rather than
vary from or contradict, the instrument's text.” Id. (citing URI, 543 S.W.3d at 767) [Internal
quotations marks omitted].
We conduct a de novo review of the trial court’s rulings on summary judgment.
Koopmann, 547 S.W.3d at 865. “When reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor.” Id. “On cross motions for summary judgment, each party bears
the burden of establishing that it is entitled to judgment as a matter of law. Id. “When the trial court
grants one motion and denies the other, the reviewing court should determine all questions
presented and render the judgment that the trial court should have rendered.” Id.
To grant summary judgment in favor of Elise the trial court had to find that: (1) the 1998
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Gift Deed conveyed to Elise and Allison, Loyd III’s remainder interest in Ruthie’s Life Estate; and
(2) Kathy’s suit for reformation was barred by the statute of limitations; and (3) Elise was not
estopped from claiming Loyd III’s remainder interest.
DISCUSSION
It is undisputed Loyd III intended to gift to his daughters his 1/8 ownership interest in
Cottonwood, acquired from Ruthie in 1990. It is also undisputed that the gift deed omits any clear
or express reference to Loyd III’s remainder interest in Ruthies’ Life Estate or his desire to convey
it at that time. The parties dispute only the legal effect such an omission has on the breadth of the
1998 conveyance.
In Texas, deeds are construed to confer upon the grantee the greatest estate that the terms
of the instrument will allow. Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963). A deed will pass
whatever interest the grantor has in the land, unless it contains language showing the intention to
grant a lesser estate. Sharp v. Fowler, 252 S.W.2d 153, 154 (Tex. 1952). However, when
conveying a future or expectancy interest in property, “an instrument is not given effect as an
assignment of an expectancy or future interest unless it clearly manifests the intention of the
prospective heir to sell, assign or convey his expectancy or future interest.” Clark v. Gauntt, 161
S.W.2d 270, 273 (Tex. 1942); see also McConnell v. Corgey, 262 S.W.2d 944, 947 (Tex.
1953)(same); see also Cavazos v. Cavazos, 246 S.W.3d 175, 180 (Tex.App.—San Antonio 2007,
pet. denied)(“There is no dispute that a prospective heir may convey an estate that commences in
the future, in the same manner as by a will. . . . . But, such an instrument must clearly manifest the
intention of the prospective heir to sell, assign or convey his expectancy or future interest.”).
In her first issue, Kathy contends in 1998 Lloyd III’s remainder interest was still only a
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future ownership interest because Ruthie’s Life Estate had yet to expire. As such, Kathy argues,
for the deed to convey that future ownership interest it must contain clear and express language
manifesting Lloyd III’s intent to do so. And because the 1998 Gift Deed lacked such language,
Elise’s claim to the remainder is without merit.
Relying primarily on mineral interest cases, Elise responds that the gift deed required no
special language to effectuate conveyance of the remainder interest, but to the contrary, required
special language in the deed expressly reserving the remainder interest to the grantor. See e.g.
Eastin v. Dial, 288 S.W.3d 491, 500 (Tex.App.—San Antonio 2009, pet. denied)(“A warranty
deed will pass all of the estate owned by the grantor at the time of the conveyance, unless there are
reservations or exceptions that reduce the estate conveyed. . . . Reservations of minerals are
effective only if made in clear language.”).
We believe the cases cited by Kathy are controlling here. We therefore hold that in 1998
Loyd III’s remainder interest was only a future ownership interest that required clear and express
language manifesting an intent to convey it. Because the 1998 Gift Deed lacks such language it
did not operate to convey the remainder interest to Elise or Allison. We find the cases cited by
Elise distinguishable. Before discussing those cases, however, it is necessary to address Elise’s
claim that Kathy’s suit is barred by the four-year statute of limitations.
I. The Statute of Limitations Does Not Bar Kathy’s Suit.
Kathy contends she brought an action for trespass-to-title and, alternatively, a claim for
deed reformation. Kathy’s live petition alleged both causes of action and they each rely on a
different line of facts and seek different remedies. The trespass-to-title claim seeks to enforce
Kathy’s superior right over Elise’s claim to Loyd III’s remainder interest, which Kathy alleges
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Loyd III acquired at the end of Ruthie’s Life Estate in 2006 and which she inherited through Loyd
III’s will after his death in 2014. The trespass-to-title claim is necessarily grounded in the factual
allegation that Loyd III did not convey to Elise his remainder interest in 1998. Under these facts,
Kathy’s standing to enforce her right to the remainder interest did not arise until she inherited it
upon Loyd III’s death in 2014. Accordingly, Kathy’s trespass-to-title claim could not have arisen
sooner than 2014.
Kathy’s claim for deed reformation, which was pled in the alternative, alleged if the
language in the 1998 gift deed is interpreted to convey to Elise Loyd III’s remainder interest then
it was mistakenly conveyed and Kathy sought to correct that language to reflect Loyd III’s true
intent. Elise focuses only on Kathy’s alternative claim for deed reformation and contends any claim
that seeks reformation is barred by the four-year statute of limitations because the limitations
period runs from the execution of the gift deed in 1998 and Kathy’s suit filed in 2016 was filed
outside the applicable limitations period. See Cosgrove v. Cade, 468 S.W.3d 32, 37 (Tex.
2015)(holding that discovery rule does not apply “[i]n plain-omission cases . . . [and] Parties are
charged as a matter of law with knowledge of an unambiguous deed’s material omissions from the
date of its execution, and the statute of limitations runs from that date.”)
However, we believe Elise’s reliance on Cosgrove is misplaced. In Cosgrove, the parties
entered into a purchase contract that expressly specified the “sellers [would] retain all mineral
rights.” Cosgrove, 468 S.W.3d at 35. The deed, however, omitted this reservation, which went
undiscovered by the sellers for over four years. The court was unwilling to apply the discovery
rule to those facts because when a reservation of rights has been obviously negotiated by the parties
and expressly included in the contract, but is nevertheless completely omitted from a deed, “the
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presumption of knowledge becomes irrebuttable.” Id. at 37.
Here, the instrument at issue resulted from a gift not a purchase contract. Consequently,
there were no negotiations in which the parties engaged, nor was there written confirmation of an
“agreement” in which the reservation was clearly discussed or agreed upon by the parties that
would make knowledge of an omission of such a reservation in the deed “irrebuttable.” These facts
place this case outside of the “plain omission” category of cases to which Cosgrove applies.
Moreover, Cosgrove acknowledges a distinction between “plain omission” cases and those
cases involving “mistakes about the legal effect of a deed’s terms” to which the discovery rule
remains available. See id. at 37 (“we [have] distinguished mistakes about the legal effect of a
deed’s terms from instances where mineral rights had been entirely omitted from the deeds, a fact
plainly evident”)(citing McClung v. Lawrence, 430 S.W.2d 179, 181-82 (Tex. 1968)(holding in
cases where parties may have been “mutually mistaken as to the legal effect of the deed in
question,” limitations runs from “when the mistake was, or in the exercise of reasonable diligence
should have been discovered”). Here, the parties dispute the legal effect of the language used in
the deed. Consequently, even if Kathy’s suit was only a suit for reformation, which it is not, we
do not believe it would be barred by the four-year statute of limitations. The facts in this case are
more akin to those in McClung, which does not prohibit application of the discovery rule, than
Cosgrove, and Kathy did not or could not have discovered the alleged mistake until Elise claimed
an interest to the remainder in 2016.
In any event, in light of our determination that Loyd III did not convey his remainder
interest to Elise or Allison in 1998, and it is undisputed Kathy could not have acquired the
remainder interest until Loyd III’s death in 2014, and Elise did not manifest her belief she acquired
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the remainder interest via the gift deed until 2016, Kathy’s suit is not barred by the four-year statute
of limitations. See TEX.CIV.PRAC.&REM.CODE ANN. § 16.051 (“Every action for which there is
no express limitations period, except an action for the recovery of real property, must be brought
not later than four years after the day the cause of action accrues.”)[Emphasis added]; McClung,
430 S.W.2d at 181-82.
II. Vested Remainder Interests Are Future Interests Requiring Express
Language To Be Legally Conveyed.
On the merits, Elise argues that in 1998, Loyd III’s remainder interest was actually a
“present vested interest” that required “no special conveyance language.” While we believe Loyd
III’s remainder interest in 1998 was indeed “vested,” and therefore transferrable, it was a future
interest nonetheless, and as such required clear language manifesting an intent to convey it. Clark,
161 S.W.2d at 273; McConnell, 262 S.W.2d at 947; Cavazos, 246 S.W.3d at 180. At oral argument,
Elise’s counsel maintained whether the remainder interest is a future interest is irrelevant to our
inquiry because, according to Appellee, it is clear vested remainders are capable of being conveyed
in the same way as any other present ownership interest. We disagree. Future interests have been
treated differently since the common law. See Glenn v. Holt, 229 S.W. 684, 687 (Tex.
1921)(discussing statute now codified in TEX.PROP.CODE ANN. § 5.041, which was enacted to
abrogate the common-law rule that a freehold to commence in future could not be conveyed). As
discussed below, while a vested remainderman has a present right to transfer his future interest,
he must manifest his intent to do so in clear and express language.
A. Present Interest vs. Future Interest
“A present interest is an ownership interest in property that entitles the owner to possession
or enjoyment of the property.” RESTATEMENT (THIRD) OF PROPERTY (WILLS & DON. TRANS.)
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§ 24.1 (2011). A future interest in property, on the other hand, “is an ownership interest . . . that
does not currently entitle the owner to possession or enjoyment of the property.” Id. at § 25.1. In
other words, a present interest in property means an owner can currently exercise his ownership
rights to possess and enjoy the property, while a future interest recognizes that “[t]he owner’s right
to possession or enjoyment is postponed until some time in the future[.]” Id. at §§ 25.1, 25.3. A
future interest is an ownership interest that can only be exercised upon the happening of a future
event, after which the interest becomes a present interest. Id.
B. Contingent Future Interest vs. Vested Future Interest.
Future interests are either “contingent” or “vested.” RESTATEMENT (THIRD) OF PROPERTY
(WILLS & DON. TRANS.) § 25.3 (2011). A “contingent” interest is a future interest where the future
event is uncertain to occur and which therefore may not result in the owner taking possession or
enjoyment. Id.; see also Davis v. Vidal, 151 S.W. 290, 293 (Tex. 1912)(“The very definition of a
contingent estate as distinguished from a vested estate is that the right to its enjoyment is to accrue
on an event which is dubious and uncertain.”)[Internal quotations marks and emphasis omitted].
A “vested” interest, on the other hand, is a future interest where the future event is certain to occur,
such as the death of a testator. See Bufford v. Holliman, 10 Tex. 560, 572 (1853)(“the
remaindermen took a vested interest at the death of the testator.”).
C. Remainder Interests are Future Interests.
A “remainder” is a future ownership interest that another holds (either contingent or vested)
after the termination of a prior interest, for example, after a life estate. See RESTATEMENT (FIRST)
OF PROPERTY § 156 (1936)(“a remainder is any future interest limited in favor of a transferee in
such manner that it can become a present interest upon the expiration of all prior interest
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simultaneously created . . .”). A “vested” remainder is “a present right of future enjoyment, a fixed
interest, with only the right of possession postponed until the ending of a particular estate.” Caples
v. Ward, 179 S.W. 856, 858 (Tex. 1915)[Emphasis added]; see also Moody v. Pitts, 708 S.W.2d
930, 934 (Tex.App.—Corpus Christi 1986, no writ)(where life estate terminates upon death with
remaining corpus to be distributed to the remaindermen (the four children), “the children’s future
interests . . . are vested remainders.”)[Emphasis added]; see also Caples, 179 S.W. at 858 (an
uncertainty in the amount of the future estate remaining “undisposed of at the expiration” of the
intermediate estate does not render the remainder contingent).
Despite these cases clearly characterizing a “remainder interest” as a future interest, Elise
argues the remainder interest in this case was nevertheless “a vested, present interest capable of
conveyance” without “special conveyance language.” While we agree a vested remainder interest
is capable of conveyance, our review of the cases cited by Elise does not lead us to conclude that
the remainder interest in this case is a present ownership interest requiring no express language of
the grantor’s intent to convey it.
In support of her contention that no special language is required to convey a vested
remainder interest, Elise cites to Jinkins v. Jinkins, 522 S.W.3d 771 (Tex.App.—Houston [1st
Dist.] 2017, no pet.), but Jinkins does not hold special language is unnecessary to convey vested
remainder interests. Jinkins merely holds a vested remainder interest is transferrable. See id. at 780(“A vested remainder may be transferred.”). Elise also relies on Caples for the proposition “courts
hold a remainder interest as vested rather than contingent, when it can reasonably be construed as
vested.” Caples, 179 S.W. at 858. Once again, we do not doubt this principle, but Caples does not
advance Appellee’s argument because Caples does not hold remainder interests are present
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ownership interests that can be conveyed without express language.
In Caples, the question was whether a remainderman’s interest in property was subject to
execution to collect a debt, even though the life estate had not yet expired and the extent of the
remainderman’s interest was undetermined because the will gave the life tenant the power to sell
the property before the life estate’s expiration. Caples, 179 S.W. at 857. In holding the remainder
interest was vested, not contingent, and therefore subject to execution against the remainderman,
the court observed the will “invests [the remainderman] with a present interest and right to its
future enjoyment . . . [and that a power of sale by the life tenant] does not raise the [life] estate to
a fee [simple].” Id. at 858. We interpret this language in the court’s opinion to say remaindermen
have a present right to transfer a vested remainder interest even when the life tenant has the power
to sell the property prior to the expiration of the life estate because the power of sale does not
change the fact the will created only a life estate, and did not convey to the life tenant title to the
property in fee simple. We do not understand Caples to say a remainder interest is a present
ownership interest in the property that would permit conveyance absent express language
manifesting an intent to do so.
Elise also cites to Medlin v. Medlin, 203 S.W.2d 635, 641 (Tex.App.—Amarillo 1947, writ
ref’d) for the assertion a vested remainder interest is a present ownership interest in the property.
In Medlin, the court was asked to resolve a dispute between family members over the construction
of a will that established a life tenancy for the testator’s wife and left a remainder interest to the
testator’s children. One of the questions in Medlin was whether the will extinguished the
remaindermen’s present vested interest in the estate property by giving the life tenant the power to
sell the property before the life estate expired. Medlin, 203 S.W.2d at 641. The court held that it
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did not. Id. Medlin, then, stands only for the proposition a life tenant’s ability to sell or otherwise
dispose of the estate during the life estate does not divest the remaindermen of their “vested” future
interest in the property or prevent the remaindermen from transferring that interest. See id. (“[I]n
our opinion, the trial court erred in holding that the remaindermen’s interest of the appellants in
the property is not a vested interest.”). Medlin is silent, however, as to how that interest is legally
conveyed.
Likewise, Gibbs v. Barkley, 242 S.W. 462, 465 (Tex. Comm’n App. 1922), observed that
the remainder interest in that case was a “vested” and “fixed interest” which would “take effect in
possession after the termination of the estate of the life tenant.” Id.; see also RESTATEMENT (THIRD)
OF PROPERTY (WILLS & DON. TRANS.) at § 25.1 (2011)(“A future interest is an ownership interest
in property. . . [where] [t]he owner’s right to possession or enjoyment is postponed until some time
in the future . . .”); see also id. at § 25.3 (“A future interest is vested if it is certain to take effect in
possession or enjoyment.”). Gibbs then stands only for the proposition that a remainder interest is
a vested future interest and can be conveyed.
Here, as previously stated, we do not doubt Loyd III’s remainder interest was vested or he
possessed a present right in 1998 to transfer his future ownership interest if he so desired. The
question here is whether he did so. We believe the answer is no. Even though Loyd III’s remainder
interest was “vested” by virtue of Loyd Jr’s (testator) death in 1985 and was therefore capable of
being transferred in 1998, because Ruthie’s Life Estate had yet to expire, the remainder interest
was still only a future ownership interest, which would not ripen into a present ownership interest
until Ruthie’s death. When an instrument purports to transfer a vested remainder interest under
these circumstances, it must contain clear and express language demonstrating the grantor’s intent
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to do so. Clark, 161 S.W.2d at 273; McConnell, 262 S.W.2d at 947; Cavazos, 246 S.W.3d at 180.
Because the 1998 gift deed lacked such language, we believe it unambiguously transferred
to Loyd III’s daughters only his 1/8 present ownership interest in Cottonwood, received from
Ruthie in 1990, and it did not operate to transfer his 1/8 remainder interest in Cottonwood, which
Loyd III did not acquire until the expiration of Ruthie’s Life Estate in 2006. Our holding is further
supported by circumstances surrounding the instrument's execution, which make clear Loyd III
did not intent to convey to his daughters his remainder interest via the 1998 gift deed.
We therefore sustain Kathy’s first issue, reverse the trial court’s order granting summary
judgment to Elise, and render judgment in Kathy’s favor. Because the first issue is dispositive of
the case, we need not address her remaining issues. TEX.R.APP.P. 47.1.
January 21, 2021
YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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