White v. Brown

Supreme Court of Tennessee · 1977 · Property

Propertyestatesfee simplelife estateambiguous willconstructionwill constructionfee simple

Facts

Jessie Lide died in 1973 leaving a holographic will stating, in relevant part, "I wish Evelyn White to have my home to live in and not to be sold" and later repeating, "My house is not to be sold." White had lived with Lide as a family member for many years and continued to live with her until Lide's death. White and Sandra White Perry, the executrix, filed suit seeking a declaration that White took the home in fee simple, while the defendants, nieces and nephews who were heirs at law, argued that White received only a life estate and the remainder passed by intestacy.

Issue

When a will devises a house to a named beneficiary "to live in" and adds that the house is "not to be sold," does the will convey only a life estate, or does it convey a fee simple subject to an invalid restraint on alienation? More broadly, did the words and context of this will clearly show an intent to pass less than the testatrix's entire estate in the property?

Rule

Under Tennessee law, every devise of real estate passes all the estate or interest of the devisor unless an intent to pass a lesser estate appears by express terms or is necessarily implied from the words and context of the will. If the expression in the will is doubtful, the doubt is resolved against the limitation and in favor of the absolute estate, and courts prefer a reasonable construction that avoids partial intestacy. If a fee simple is devised, an attempted restraint on alienation is void as inconsistent with the nature of the estate and public policy.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Nashville, Dana Mercer executed a handwritten will stating: "I want my cottage on Elm Street to go to Lila Chen to live there. It must never be sold." The will gave Dana's jewelry to her nephew but said nothing else about the cottage.

Under the majority rule, what estate does Lila most likely take in the cottage?

Explanation. A devise of real property passes the testator's full estate unless a lesser estate appears by express terms or necessary implication from the words and context. Here, the language about living there and not selling is ambiguous, and there is no gift over or remainder provision. The majority rule resolves doubt against limitation and in favor of a fee simple, while avoiding partial intestacy. The direct restraint on alienation is therefore void.