Lexis Nexis - Case Brief

Not a Lexis+ subscriber? Try it out for free.

Law School Case Brief

Ellis v. Birkhead - 30 Tex. Civ. App. 529, 71 S.W. 31 (1902)


Conditions of a testamentary gift tending to separation or divorce between husband and wife are treated as void. A will devising the entire income of an estate to a married woman so long as she remained the wife of her then husband, but if, for any cause, she should cease to be such wife, then to her in fee, has been held not void as against public policy. It can hardly be said that it is against public policy to attach to a legacy such a condition as will tend to induce a legatee to do a lawful act in a lawful way. While it may be readily conceded that conditions in a will manifestly intended to bring about a separation or divorce are void, they should be clearly so before the courts, by decree, nullify the expressed will and purpose of the testator, for the Texas statutes on the subject, as well as sound considerations of public policy, dictate that those having testamentary capacity shall have the greatest freedom, consistent with public safety, in the disposition of their estates by will, and the importance of this right should not be ignored.


This suit involves the construction of the last will and testament of W. F. Ellis, the cancellation of which is sought by his only child, appellee Mary E. Birkhead, joined by her husband. Item six of the will provided that, in event of the prior death of Birkhead’s husband, she was to have a life estate, with remainder in fee to her children. Item seven provided that upon Birkhead’s death, the property was to go to the heirs of her body surviving her if her husband was still alive. If Birkhead outlived her husband, her title was to have become absolute. The trial court held that there was a conflict between the conditions of items six and seven. The trial court held that the condition in item six vesting a life estate in event of divorce was also void on the ground of public policy, in that it tended to incite the wife to destroy the marital relation. Appellant executor claimed that the trial court was in error in by partially annulling the will. Appellee Birkhead cross-appealed, contending that the trial court should have annulled the will in toto.


Did the trial court err in holding that there was a conflict between the conditions of items six and seven of the will?




The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for appellant executor. The Court found that there was no necessary conflict between the items, preventing appellee Birkhead from taking a life estate in the property. Regarding the divorce condition of item six, the will was construed such that the testator merely intended to provide for his daughter in event of her husband's prior death and to protect her in the meantime from the improvidence of her husband.

Access the full text case Not a Lexis+ subscriber? Try it out for free.
Be Sure You're Prepared for Class