                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00273-CV

ANNETTE KNOPF AND STANLEY GRAY,
                                                           Appellants
v.

WILLIAM R. GRAY, KAREN A. GRAY
AND POLASEK FARMS, LLC,
                                                           Appellees



                          From the 82nd District Court
                            Robertson County, Texas
                         Trial Court No. 14-09-19619-CV


                          MEMORANDUM OPINION


      Annette Knopf and Stanley Gray filed suit against William Robert (Bobby) Gray,

Karen Gray, and Polasek Farms, L.L.C. for declaratory judgment relating to the parties’

interest in real property devised pursuant to the will of Vada Allen. Appellants’ also

alleged Bobby Gray, as executor of the Allen will, breached his fiduciary duties owed to

them as beneficiaries under the will. The trial court granted Polasek Farms’ motion for
summary judgment. The trial court entered final judgment in favor of Polasek Farms and

Bobby and Karen Gray. We affirm.

                                      Background Facts

          Vada Wallace died on June 8, 1993, and her will was admitted to probate on

November 9, 1993. The beginning of the will had four numbered paragraphs. The third

paragraph stated, “I give all my estate to my son BOBBY GRAY.” The fourth paragraph

designated Bobby Gray as executor of the will. The will then contained three additional

numbered paragraphs making specific bequests to her grandchildren Annette Knopf,

Allison Kilway1, and Stanley Gray. The will then had the following provision that is the

basis of the dispute:

                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, individually and as Independent Executor of the Allen Will, and

Karen Gray, transferred portions of the land referenced in the will to Polasek Farms by

multiple deeds.         Appellants Annette Knopf and Stanley Gray filed suit seeking a

declaratory judgment that Bobby Gray held a life estate in the property and could not

convey a fee simple interest to Polasek Farms. Polasek Farms filed a motion for summary

judgment, and Appellants filed a cross-motion for summary judgment. The trial court


1   Allison Kilway died in 2013.

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granted Polasek Farms’ motion for summary judgment and entered a final judgment. In

the final judgment, the trial court found:

   1. The Contested Provision of Mrs. Allen’s will contains a disabling restraint.
   2. The disabling restraint is void as a matter of law.
   3. Defendant William Robert Gray was vested with a fee simple interest in the
      real property devised by the Contested Provision.
   4. Plaintiffs received no remainder interest in the real property devised by the
      Contested Provision.
   5. In as much as Plaintiffs’ claim for Breach of Fiduciary Duty is dependent on
      this Court’s holding that Plaintiffs were vested with a remainder interest,
      Defendant William Robert Gray did not breach a fiduciary duty.

       The Court denies all relief not expressly granted in this judgment. This
       judgment finally disposes of all parties and claims and is appealable.

                                         Jurisdiction

       We note that Bobby and Karen Gray did not file a motion for summary judgment,

and the trial court’s order granting Polasek Farms’ motion for summary judgment does

not reference Bobby and Karen Gray. The general rule, with a few exceptions, mostly

statutory, is that an appeal may be taken only from a final judgment. Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it

disposes of all pending parties and claims in the record, except as necessary to carry out

the decree. Id. When there has not been a conventional trial on the merits, an order or

judgment is not final for purposes of appeal unless it actually disposes of every pending

claim and party or unless it clearly and unequivocally states that it finally disposes of all

claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d at 205.



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       The trial court’s final judgment clearly and unequivocally states that it finally

disposes of all claims and parties. Therefore, the judgment is a final, appealable order,

and this Court has jurisdiction to consider the appeal.

                                          Argument

       In the sole issue on appeal, Appellants argues that the trial court erred in finding

that the Allen Will devised real property in fee simple to Bobby Gray and that Appellants

hold no remainder interest. The Allen will states, “I leave the rest to you, everything,

certificates of deposit, land, cattle and machinery.”     Appellants argue 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.

       An 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. TEX. PROP. CODE ANN. § 5.001 (a) (West 2014). The primary object of

inquiry in interpreting a will is determining the intent of the testator. Gee v. Read, 606

S.W.2d 677, 680 (Tex.1980); In re Estate of Craigen, 305 S.W.3d 825, 827 (Tex.App.-

Beaumont 2010, no pet.). The testator's intent must be drawn from the will, not the will

from the intent. Gee v. Read, 606 S.W.2d at 680; In re Estate of Craigen, 305 S.W.3d at 827.

       With respect to the creation of a life estate, 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. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 582 (1955); In re Estate of


Knopf and Gray v. Gray and Polasek Farms, LLC                                           Page 4
Craigen, 305 S.W.3d at 827. 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.

       The Texas Supreme Court has used the definitions from the First Restatement of

Property to identify whether an instrument contains a restraint on alienation. See Sonny

Arnold, Inc. v. Sentry Sav. Ass'n, 633 S.W.2d 811, 813-15, n.1,2 (Tex.1982). The First

Restatement of Property defines a restraint on alienation as:

       (1) A restraint on alienation, as that phrase is used in this Restatement, is an
       attempt by an otherwise effective conveyance or contract to cause a later
       conveyance

       (a) to be void; or
       (b) to impose contractual liability on the one who makes the later
       conveyance when such liability results from a breach of an agreement not
       to convey; or
       (c) to terminate or subject to termination all or part of the property interest
       conveyed.
Knopf and Gray v. Gray and Polasek Farms, LLC                                             Page 5
       (2) If a restraint on alienation is of the type described in Subsection (1),
       Clause (a), it is a disabling restraint.

       (3) If a restraint on alienation is of the type described in Subsection (1),
       Clause (b), it is a promissory restraint.

       (4) If a restraint on alienation is of the type described in Subsection (1),
       Clause (c), it is a forfeiture restraint.

The trial court found that the contested provision of the Allen Will contained a disabling

restraint.

       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. Williams v. Williams, 73

S.W.3d 376, 380 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Diamond v. Rotan, 58

Tex.Civ.App. 263, 124 S.W. 196, 198 (Tex.Civ.App.--Texarkana 1910, writ ref'd). 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. See Loehr v. Kincannon, 834 S.W.2d

445, 446-447 (Tex.App.-Houston [14th Dist.] 1992, no pet.).

       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


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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.




                                            AL SCOGGINS
                                            Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed January 11, 2017
[CV06]




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