In In re Estate of Morgenroth, a mother died testate with a will that gave specific devises to her two children, a son and daughter. No. 05-15-00777-CV, 2016 Tex. App. LEXIS 7857 (Tex. App.—Dallas July 25, 2016, no pet. history). The will contained a residuary clause:

All the remaining property, real and otherwise, of every kind and description, wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my surviving children, TIFFANY DAWN TRESCOTT and BUDDY LEE MORGENROTH, share and share alike, remainder to the survivor of them.

The daughter died ninety days after her mother, and the son took the position that her interest in the residuary estate belonged to the son. In the estate, the son filed a motion to interpret the will, and the parties filed competing motions for summary judgment requesting the court to determine whether the son was the sole heir to mother’s estate. The trial court construed the mother’s will as creating a life estate for daughter and son “during their lives, with any property of the Estate of [Mother] still in existence upon the death of the first of [Daughter] and [Son] to pass to the survivor of them.” The daughter’s spouse appealed.

The court of appeals described the difference between a determinable estate and a life estate:

A “fee simple absolute” is an estate over which the owner has unlimited power of disposition in perpetuity without condition or limitation. An “executory limitation” is an event which, if it occurs, automatically divests one of devised property. A fee simple estate subject to an executory limitation is called a “determinable fee simple estate.” This is a fee simple interest in every respect, except that it passes to another if the contingency happens. The recipient upon the contingency’s happening has an “executory interest.” A life estate is created by words showing intent to give the right to possess, use, and enjoy the property during life. There can be no life estate in property, real or personal, without a remainder. It may not be necessary always to name the remainderman, in which case the law would define him. But in such case the will must clearly and unequivocally provide for a life estate, thus to overcome the presumption that the testator intended to give the greater estate. Additionally, the life tenant may expressly be given unlimited power to dispose of the property during his lifetime; if such power is exercised, it defeats the remainderman’s interest in the disposed-of property. However, the life tenant may not devise any of that property that remains at her death. No particular language is required to make a life estate.

Id. The court construed the will to read that the mother intended to devise a one-half fee simple determinable interest to both son and daughter, rather than a life estate:

Because the residuary clause does not clearly and unequivocally provide a life estate, there is insufficient evidence to overcome the presumption that Mother intended to give her residuary in fee simple—the  greater estate… The second phrase, “remainder to the survivor of them,” clearly gives whatever interest Son or Daughter still holds in the residue to the other when the first one of them dies. The occurrence of this “executory limitation”—the event in which either sibling predeceases the other while holding any interest in the residue—automatically divests the predecessor of the remaining devised property and the surviving sibling—giving the surviving sibling an executory interest. To read these two phrases together—without nullifying the second phrase and while preserving the greatest estate possible in the first phrase—is to construe Mother’s devise to Son and Daughter as a determinable fee simple.

Id. The court concluded that the son held an executory interest in daughter’s share of mother’s residue; the contingency was daughter predeceasing son with some of mother’s residual estate. Because the daughter died before son while still holding a one-half interest in mother’s residue, the court determined that the son took that property.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law