Devise of Land Conditioned on Payment of Annuity to Others Created a Fee on Condition Subsequent

In Woolley v. Woolley, 940 N.E.2d 620 (Ohio Ct. App. 2010), the testator devised real property to his grandson “in fee simple on the condition” that he pay the testator’s two sons $1,000 each every month for 20 years. After making payments for 103 months, the grandson stopped. One of the testator’s sons sued, demanding among other relief that grandson be held personally liable for the unpaid portion of the annuities.

The trial court held that the will gave the grandson a fee simple on a condition subsequent which having been breached means that the property must be returned to the testator’s estate to be distributed to the residuary beneficiaries. The Ohio intermediate appellate court affirmed, dismissing the son’s contention that the language created a legacy for which the grandson was personally liable.

Special thanks to William P. LaPiana (Rita and Solomon Professor of Wills, Trusts, and Estates, New York Law School) for bringing this to my attention.