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Sybert v. Sybert

Citation. 250 S.W.2d 271 (Tex. Civ. App. 1952)
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Brief Fact Summary.

Fred Sybert, by wills from his father and mother, received a conveyance of property which was described by the testator to be a life estate only with the gift over of the remainder in fee to “heirs of his body.”

Synopsis of Rule of Law.

The rule in Shelley’s case applies to create a fee simple interest in Fred Sybert, even though the intent of the testator was to create a life estate, because the gift over is to the “heirs of his body.”


J.H. Sybert, deceased in 1942, devised by will leaving all his property to his wife, and at her death to his son Fred Sybert certain described land with the following provisions: “To my son Fred Sybert I will and bequeath the following described tract of land (a life estate only, to manage, control and use for and during the term of his natural life and after the death of my said son, Fred Sybert, to vest in fee simple in the heirs of his body).” J.H. Sybert’s wife died with the same provisions in her will. Fred Sybert died childless and without a will in 1950 and was survived by the Respondent, his wife Eunice Sybert. Two of Fred Sybert’s brothers are the Petitioners, who sought to have the provisions of the devise to Fred Sybert from J.H. Sybert construed as granting a life estate to Fred Sybert and in the case of the failure of issue that the estate was to revert to the heirs of J.H. Sybert (the brothers). The Respondent, Fred Sybert’s widow Eunice, wished to have the rule
in Shelley’s case applied to the devise from J.H. Sybert to Fred Sybert so that the estate would be found to be an estate in fee simple, and the land would pass to the surviving spouse under the statutes of descent and distribution. The Respondent prevailed in the trial court and the intermediate appellate court.


Does the rule in Shelley’s case apply here such that the estate Fred Sybert received under the devise from J.H. Sybert is a fee simple rather than a life estate?


Yes. Judgment affirmed.
This Court has adopted the rule in Shelley’s case as stated by Kent which basically may be restated as follows: Whenever a person takes an estate under a deed or other conveyance and in the same document there is a limitation, by way of remainder, of an interest of the same legal quality where the heirs or heirs of the ancestor are to take in succession; then the rule in Shelley’s case will be applied to create a fee simple in the ancestor. The Court found that the rule is based on the requirement that the purported gift over of a remainder interest must specifically state “heirs” or “heirs of his body.”
The rule is that, unless there is some qualifying language, showing that the words “heirs of his body” were not used in their technical sense, the rule in Shelley’s case must apply. In this case the Court found that the original devise to Fred Sybert used the words “heirs of his body” in their technical sense.
The Court cited previous decisions which held that the words “lawful issue” (similar to heirs of his body) were words of purchase, not limitation. Also, the Court distinguished this case from a case in which the devise in question was to “her bodily heirs, share and share alike.” In that case, the addition of “share and share alike” qualified the word heirs and took the case out of the rule.
Concurrence. The concurrence agreed with the result as being within the precedent of the jurisdiction, but noted that the rule in Shelley’s case is an ancient rule which came from English feudal times and should be abolished. The effect of the rule is to frustrate the intent of the testator who clearly expressed his desire that Fred Sybert should take only a life estate.


The rule in Shelley’s case is not applied in very many jurisdictions. The rule has fallen out of favor. As the concurrence noted, as of 1948 thirty seven states had abolished the rule.

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