law considers a “class” as a group of persons having a common characteristic. A person may leave personal or real property to a class of persons as a group. For example, an elderly man may designate in his will to leave 200 acres of land he owns in Travis County to his children living at the time of his death. In this article we will discuss class gifts of land in Texas. If you are involved in a class gift situation, you may wish to discuss your case with Austin probate and real estate attorney Farren Smith
to help determine how the class gifts are treated under Texas law.
Essential Elements of a Class Gift in Texas
The essential elements of a class gift under Texas law are outlined as follows:
- (1) The group of persons in the class shares the same description so that one designation describes them all. According to Texas case law, a “class” is defined as a group of several persons who share the same description and have the same relationship to the testator or to each other. Examples of designations that would state a class include: –“nieces and nephews”
–“brothers and sisters”
–testator’s children living at his death
–testator’s surviving first cousins
- (2) The number of persons in the class must be uncertain when the gift is made in the will. This requirement is commonly satisfied if there is a future possibility of an increase or decrease in the number in the class. If the gift is to a group of persons with accompanying words of survivorship, such as a gift to the surviving grandchildren of the testator. A gift to four named children would not be a class gift because the number is determined. However, a designation of a gift to “all of my children” satisfies the requirement because the number may change up or down.
- (3) The gift must be an aggregate gift to the group of persons whose number is uncertain at the time of the gift. A specified gift that is to be given to the group jointly to be divided among the members of the group meets this requirement for a class gift.
Class Gift of Land
A tract of real estate
can be left as a class gift. In a 1982 Texas Supreme Court case, Perry v. Hinshaw
, 633 S.W.2d 503, 504 (Tex. 1982), a class gift of land was found to have been created by a will providing that:
“the real property … be divided among the surviving sisters and brothers of myself and my beloved husband in the following manner: to my sister, MRS. HATTIE HOHHOF … one-half (1/2); and the remaining half to be divided equally, share and share alike, among the surviving brothers and sisters of my beloved husband, D. E. HINSHAW, the same being WILLIAM HINSHAW, FANNIE STEELE, COSA FRENSLY, LUDA JONES, and VERA PERRY, share and share alike.”
, the Texas Supreme Court ruled that the general words about division among the surviving brothers and sisters were a general statement that was clarified by the more specific disposition that followed. The Court determined that the will made a specific gift of one half of the property, and a class gift of the remaining one half. As the survivor of that class, Vera Perry was entitled to one half of the real property, and the legatees of Hattie Hohhof were entitled to the remaining one-half.
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- 24-394 Dorsaneo, Texas Litigation Guide