residuary clause in Texas

2018In Buys, for instance, a residuary clause in the parties’ settlement agreement, which was incorporated into the divorce decree, awarded wife “[a]ll of the other properties, financial assets and belongings of the parties hereto, whether separate or community, not specifically set aside to [husband].” Id. at 370 .

2009The residuary clause’s broad language was utilized to dispose of property not referenced in divorce decrees; e.g., Buys v. Buys , 924 S.W.2d 369, 372 (Tex.1996), whether real or personal property.

1994See Tharp v. Tharp, 772 S.W.2d 467 (Tex.App.—Dallas 1989, no writ); [3] Jacobs v. Cude, 641 S.W.2d 258 (Tex.App.—Houston [14th Dist.] 1982, writ ref'd n.r.e.); [4] Bloom v. Bloom, 604 S.W.2d 393 (Tex.Civ.App.—Tyler 1980, no writ). [5] The application of the rules in this context was succinctly stated in Jacobs : By its very nature, a residuary clause encompasses those things not specified in the decree but included in the community property under the jurisdiction of the court.

1994See Tharp v. Tharp, 772 S.W.2d 467 (Tex.App. — Dallas 1989, no writ); 3 Jacobs v. Cude, 641 S.W.2d 258 (Tex.App. — Houston [14th Dist.] 1982, writ ref d n.r.e.); 4 Bloom v. Bloom, 604 S.W.2d 393 (Tex.Civ.App. — Tyler 1980, no writ). 5 The application of the rules in this context was succinctly stated in Jacobs : By its very nature, a residuary clause encompasses those things not specified in the decree but included in the community property under the jurisdiction of the court.

2009Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977).

2009Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977).

2003Dunn v. Dunn , 703 S.W.2d 317, 319 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.); see also Smith v. Smith , 733 S.W.2d 915, 916 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.); Dessommes v. Dessommes , 505 S.W.2d 673, 676 (Tex. App.-Dallas 1973, writ ref'd n.r.e.).

2003Dunn v. Dunn, 703 S.W.2d 317, 319 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); see also Smith v. Smith, 733 S.W.2d 915, 916 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.); Dessommes v. Dessommes, 505 S.W.2d 673, 676 (Tex.App.Dallas 1973, writ ref'd n.r.e.).

2009Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977).

2009Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977).

2003Dunn v. Dunn, 703 S.W.2d 317, 319 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); see also Smith v. Smith, 733 S.W.2d 915, 916 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.); Dessommes v. Dessommes, 505 S.W.2d 673, 676 (Tex.App.Dallas 1973, writ ref'd n.r.e.).

1994Accordingly, Mr. Dunn's "right ... to claim his retirement benefits is the type of `intangible right' contemplated in Yeo and Dessommes and the trial court therefore properly characterized it as falling outside of the residuary clause." Id. at 320.

2012“By its very nature, a residuary clause encompasses those things not specified in the decree but included in the community property under the jurisdiction of the court.” See Jacobs v. Cude , 641 S.W.2d 258, 260 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (emphasis added).

2012“By its very nature, a residuary clause encompasses those things not specified in the decree but included in the community property under the jurisdiction of the court.” See Jacobs v. Cude, 641 S.W.2d 258, 260 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.) (emphasis added).

2003Retirement benefits were not included in a residuary clause when the clause applied to “any separate property he may now have or acquire in the future, and all other property of whatever nature, separate or community, in his possession or claimed by him_” Yeo v. Yeo, 581 S.W.2d 734, 737 (Tex.App.-San Antonio 1979, writ ref'd n.r.e.) (emphasis added).

2003“Possession,” as used in the residuary clause, means “property over which the parties have physical control or, at least a power of immediate enjoyment and disposition.” Id.

2003Dunn v. Dunn , 703 S.W.2d 317, 319 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.); see also Smith v. Smith , 733 S.W.2d 915, 916 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.); Dessommes v. Dessommes , 505 S.W.2d 673, 676 (Tex. App.-Dallas 1973, writ ref'd n.r.e.).

2003Dunn v. Dunn, 703 S.W.2d 317, 319 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); see also Smith v. Smith, 733 S.W.2d 915, 916 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.); Dessommes v. Dessommes, 505 S.W.2d 673, 676 (Tex.App.Dallas 1973, writ ref'd n.r.e.).

2003See, e.g., Betts v. Haggard, 495 S.W.2d 602, 606 (Tex.Civ.App.-Tyler .1973, writ refd n.r.e.) (paragraph Fourth was contingent residuary clause to be effective only if the bequests made in paragraphs Second or Third became ineffective); Fain v. Fain, 335 S.W.2d 663, 665 (Tex.Civ.

2003See, e.g. , Betts v. Haggard , 495 S.W.2d 602, 606 (Tex. Civ.

2016See, e.g., Calloway v. Estate of Gasser, 558 S.W.2d 571, 576 (Tex. Civ.

2005In Calloway v. Estate of Gasser, 558 S.W.2d 571, 573 (Tex.Civ.App.-Tyler 1977, writ refd n.r.e.), the will named the testatrix’s then-husband in the residuary clause, then provided alternate bequests “If my said husband does not survive me.... ” The parties divorced before the *859 testatrix’s death.

2011See Grisham v. Lawrence, 298 S.W.3d 826, 832 (Tex. App.—Tyler 2009, no pet.); Holliday v. Smith, 458 S.W.2d 106 , 111–12 (Tex. Civ.

2009See Holliday v. Smith, 458 S.W.2d 106, 111-12 (Tex.Civ.App.-Corpus Christi 1970, writ refd n.r.e.).

2002Edward contends that, despite the holdings in Smith, Dunn, Yeo, and Dessommes , the following statement in Carreon v. Morales, a partition suit in which the residuary clause contained the possession-and-control type language, is disposi-tive of the survivor-annuity issue in this case: “it is the employee who controls the benefits and makes the election as to whether any annuity is paid and whether there is a survivor’s annuity and the beneficiary of such annuity.” See 698 S.W.2d 241, 242 (Tex.App.-El Paso 1985, no writ) (holding retirement benefits and survivor annuity not addressed in divorce

2002Edward contends that, despite the holdings in Smith , Dunn , Yeo , and Dessommes , the following statement in Carreon v. Morales , a partition suit in which the residuary clause contained the possession-and-control type language, is dispositive of the survivor-annuity issue in this case: "it is the employee who controls the benefits and makes the election as to whether any annuity is paid and whether there is a survivor's annuity and the beneficiary of such annuity." See 698 S.W.2d 241, 242 (Tex. App.--El Paso 1985, no writ) (holding retirement benefits and survivor annuity not addressed in di

2022See, e.g., Pearson, 332 S.W.3d at 364 (res judicata prevents relitigating property division when a residuary clause had divided the property); Reiss, 118 S.W.3d at 443 (res judicata prevents relitigating property division when divorce decree had mischaracterized separate property as community property); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003) (res judicata prevents relitigating property division even though the divorce decree had improperly divided retirement benefits). 17 Notably, the agreement incident to divorce incorporated into the divorce decree is not even in the record befo

2012See Majority Op. at 804; Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex.2011) (explaining that residuary clauses typically divide property not explicitly mentioned to the decree).

2025Id. at 149 .

1966In Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295 , writ ref., the court said: “The rule is recognized and is supported by the weight of authorities that in the absence of a statute upon the question, under a will containing a general residuary clause, a bequest of property, which, valid when made, fails for any reason, such as the death of the legatee prior to the death of the testator, becomes a lapsed legacy and falls into the residuary clause and passes to the residuary legatee, unless a different intention is expressed in the will.” (Emphasis supplied) See also Bittner v. Bittner, supra. I

2014See Shriner’s Hosp., 610 S.W.2d at 152 . * See In re Estate of Hunt, 908 S.W.2d 483, 485 (Tex. App.—San Antonio 1995, writ denied) (deciding whether a will disposed of entire estate); Harrington v. Walker, 829 S.W.2d 935, 936 (Tex. App.—Fort Worth 1992, writ denied) (“The wills contained a residuary clause that was expressly not applicable . . . .”); Neinast v. Brauckmuller, 401 S.W.2d 113, 114, 117 (Tex. Civ.

1981The cases of Neinast v. Brauckmuller, 401 S.W.2d 113 (Tex.Civ.App.—Houston 1966, no writ) and Bittner v. Bittner, 45 S.W.2d 148 (Tex.Com.App.1932) are factually distinguishable from this case in that passage through the residuary clauses of the respective wills involved in these cases would have been inconsistent with other expressions of intent found in the wills.

1994See Tharp v. Tharp, 772 S.W.2d 467 (Tex.App.—Dallas 1989, no writ); [3] Jacobs v. Cude, 641 S.W.2d 258 (Tex.App.—Houston [14th Dist.] 1982, writ ref'd n.r.e.); [4] Bloom v. Bloom, 604 S.W.2d 393 (Tex.Civ.App.—Tyler 1980, no writ). [5] The application of the rules in this context was succinctly stated in Jacobs : By its very nature, a residuary clause encompasses those things not specified in the decree but included in the community property under the jurisdiction of the court.

1994See Tharp v. Tharp, 772 S.W.2d 467 (Tex.App. — Dallas 1989, no writ); 3 Jacobs v. Cude, 641 S.W.2d 258 (Tex.App. — Houston [14th Dist.] 1982, writ ref d n.r.e.); 4 Bloom v. Bloom, 604 S.W.2d 393 (Tex.Civ.App. — Tyler 1980, no writ). 5 The application of the rules in this context was succinctly stated in Jacobs : By its very nature, a residuary clause encompasses those things not specified in the decree but included in the community property under the jurisdiction of the court.

2014“The basic purpose of a residuary clause . . . is to prevent partial intestacy.” Morris v. Finkelstein, 442 S.W.2d 452, 455 (Tex. Civ.

1978This presumption is said to be particularly strong when the subject of the gift is the residuary estate . .” The court in Morris v. Finkelstein, 442 S.W.2d 452 (Tex.Civ.App. —Houston (14th Dist.) 1969, writ ref. n. r. e.) considering the effect of a residuary clause said: *576 “The basic purpose of a residuary clause such as paragraph III is to prevent partial intestacy.

2022See, e.g., Pearson, 332 S.W.3d at 364 (res judicata prevents relitigating property division when a residuary clause had divided the property); Reiss, 118 S.W.3d at 443 (res judicata prevents relitigating property division when divorce decree had mischaracterized separate property as community property); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003) (res judicata prevents relitigating property division even though the divorce decree had improperly divided retirement benefits). 17 Notably, the agreement incident to divorce incorporated into the divorce decree is not even in the record befo

2009Id. (footnote: 7) The plain and unambiguous language of the “division clause” confines the application of the residuary clause to the “estate of the parties.” The term “estate of the parties” means the community estate of the parties and does not encompass the separate property of the parties.

1980Kuehn v. Bremer, supra; Lightfoot v. Poindexter, 199 S.W. 1152, 1159, 1160 (Tex.Civ.App.—Austin 1917, writ ref’d); Petsch v. Slator, 573 S.W.2d 849, 852 (Tex.Civ.App.—Austin 1978, writ ref’d n. r. e.); Cole v. Harris, supra. It is only in exceptional cases, i. e., when the testator’s intent that the subject property not pass under the residuary clause appears in the provisions of the will, that courts have upheld a partial intestacy.

1966In Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295 , writ ref., the court said: “The rule is recognized and is supported by the weight of authorities that in the absence of a statute upon the question, under a will containing a general residuary clause, a bequest of property, which, valid when made, fails for any reason, such as the death of the legatee prior to the death of the testator, becomes a lapsed legacy and falls into the residuary clause and passes to the residuary legatee, unless a different intention is expressed in the will.” (Emphasis supplied) See also Bittner v. Bittner, supra. I

2003Buys, 924 S.W.2d at 370 ; see also Tharp v. Tharp, 772 S.W.2d 467 (Tex.App.-Dallas 1989, no writ); Teaff v. Ritchey, 622 S.W.2d 589 (Tex.App.-Amarillo 1981, no writ).

1989A property settlement agreement with the former wife gave her all jewelry, wearing apparel, and certain specified household goods as well as “all other community property of the parties not expressly herein given to the husband.” In finding that the residuary clause included the disputed insurance policies, the court stated that if the language is clear the court should give effect to the entire decree and should not “twist, turn and distort the clear language.” Id. at 592 ; see also Bloom v. Bloom, 604 S.W.2d 393, 394-95 (Tex.Civ.App.—Tyler 1980, no writ).

2019Where, as here, a “will contains a residuary clause, the presumption against intestacy is especially strong.” Id.

2014App.—Houston [14th Dist.] 1969, writ. ref’d n.r.e.); see also Shriner’s Hosp., 610 S.W.2d at 151 .

2019Although Sullivan acknowledges that the law does not favor the construction of a will that results in partial intestacy; Farah v. First Nat’l Bank, 624 S.W.2d 341, 346 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.), when a residuary clause fails, the property as to which it fails passes by intestacy under the laws of descent and distribution.

2019See id.

2019See Carr v. Rogers, 383 S.W.2d 383, 384 (Tex. 1964) (holding that when a residuary clause fails, whether in whole or in part, the property as to which it fails passes by intestacy, under the laws of descent and distribution); Renaud v. Renaud, 707 S.W.2d 750 (Tex. App.—Fort Worth 1986, writ ref’d n.r.e.) (holding same).

2014Id. at 385 .

2019Alexander v. Botsford, 439 S.W.2d 414, 416 (Tex. App.—Dallas 1969, writ ref’d n.r.e.).

1984Farah, 624 S.W.2d at 347 ; Swearingen v. Giles, 565 S.W.2d 574 (Tex.Civ.App.-Eastland 1978, writ ref’d n.r.e.); Alexander v. Botsford, 439 S.W.2d 414 (Tex.Civ.App.-Dallas 1969, writ ref’d n.r.e.).