If there is ambiguity in a will, in regards to the passing of property, the court will prefer to pass property as "fee simple".
A testator left a holographic will in which she devised her house to petitioner devisee. However, the will contained language forbidding the sale of the home. Petitioners, devisee and executrix, filed suit against respondent heirs, alleging that the will devised the house to petitioner devisee in fee simple absolute, and that any restraint on alienation was void as against public policy. Respondent argued that the restraint on alienation evinced an intent by the testator to devise a life estate with a remainder in fee simple absolute in respondents. The trial court held that the will devised a life estate with a remainder in respondents, and the lower appellate court affirmed.
Did testator intend to convey only a life estate in her home to the devisee?
A fee simple absolute was presumed even in the absence of words of inheritance, if there was no language that could be construed to create a remainder. Thus, the restraint on the sale of the house was insufficient to overcome the presumption that a fee simple had been devised, and testamentary restraint on alienation was void. A will shall convey all the real estate belonging to the testator or in which he had any interest at his decease, unless a contrary intention appear by its words and context.