Michael Malone, Sterling Price Boothe, and Pat A. Boothe v. Elizabeth H. Green, Weldon W. Dietze, Caroline D. Bradford, Christin N. Dietze, Alexis E. Dietze, John F. Dietze Jr., and Frank F. Henderson Jr.
13-15-00267-CV
| Tex. App. | Oct 26, 2015Background
- Testatrix Cora McCrabb executed a 1924 will that specifically devised her "acreage property, to-wit, farm lands and pasture lands" to three grandchildren equally (Paragraph II) and left the residue (excluding farm/pasture acreage) to granddaughter Jessie (Paragraph III).
- In 1927 Cora and co‑owners conveyed 1,448.50 acres to J.L. Dubose, and Dubose simultaneously conveyed back an undivided 1/2 of the oil, gas and minerals to Cora, John McCrabb, and Mary Atkinson (each thereby retaining a 1/6 mineral interest).
- Cora died in 1929 owning an undivided 1/6 mineral interest (1/3 of the 1/2 retained), which appellants (Boothe‑Malone) claim passed under Paragraph II in thirds (1/18 each), while appellees (Green‑Henderson) assert the interest passed under the residuary Paragraph III to Jessie.
- Both parties moved for traditional partial summary judgment on title; the trial court granted Green‑Henderson’s motion, denied Boothe‑Malone’s, and later granted Green‑Henderson summary judgment on a money‑had‑and‑received claim to recoup royalties paid earlier to Boothe‑Malone.
- Appellants argue (1) the will is unambiguous and the specific devise in Paragraph II included minerals, (2) there was no ademption because Cora retained the 1/6 mineral interest via the 1927 cross‑conveyance, and (3) Green‑Henderson lack standing to recover money had and received because they do not own the royalties if title is in Boothe‑Malone and, alternatively, the operator — not an overpaid royalty owner — is the proper party to seek recoupment.
Issues
| Issue | Plaintiff's Argument (Boothe‑Malone) | Defendant's Argument (Green‑Henderson) | Held (trial court) |
|---|---|---|---|
| Who holds title to the undivided 1/18 mineral interest? | Paragraph II specifically devised the acreage (including minerals) to three grandchildren; Cora retained 1/6 minerals in 1927 and that interest did not adeem, so title belongs to Boothe‑Malone. | The specific devise was adeemed by the 1927 conveyance of the tract; the residuary clause therefore governs and awards the interest to Jessie (Green‑Henderson). | Trial court held for Green‑Henderson (title to minerals). |
| Did the 1927 transaction cause ademption of the specific bequest? | No — the simultaneous cross‑conveyance from Dubose left an identifiable undivided 1/6 mineral interest in Cora at death, so ademption did not occur. | Yes — the surface conveyance changed the character/availability of the specifically devised farm/pasture lands such that the specific devise was adeemed. | Trial court treated title as belonging to Green‑Henderson (implying ademption/residuary application). |
| Are oil/gas leases and later lessors’ actions evidence of ownership? | 1940s leases signed by J.F. McCrabb and acknowledgments by Jessie and executor John S. McCrabb corroborate that J.F. McCrabb (Boothe‑Malone’s predecessor) held the mineral interest under the will. | (Implicit) Leases do not override will construction and ademption/residuary analysis. | Trial court decision did not rely exclusively on leases; summary judgment favored Green‑Henderson. |
| Can Green‑Henderson recover royalties from Boothe‑Malone (money had and received)? | No — if Boothe‑Malone hold title, royalties paid to them belonged to them; Green‑Henderson lack ownership and thus lack standing; the operator (payer) is the proper party to seek recoupment. | Yes — sought recoupment of royalties paid to Boothe‑Malone on equitable grounds. | Trial court granted Green‑Henderson summary judgment on money had and received (ordered recoupment). |
Key Cases Cited
- San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000) (will construction focuses on testator's intent as shown within the four corners of the will)
- Luckel v. White, 819 S.W.2d 459 (Tex. 1991) (deed construction is a question of law; intent is ascertained from the deed's four corners)
- Rogers v. Carter, 385 S.W.2d 563 (Tex. Civ. App.–San Antonio 1965) (ademption by alienation operates pro tanto; only property that disappeared adeems)
- Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237 (Tex. App.–Austin 2007) (specific devise of homestead language can adeem when the identifying characteristic is absent at death)
- Gavenda v. Strata Energy, Inc., 705 S.W.2d 690 (Tex. 1986) (underpaid royalty owner may have unjust enrichment claim against operator; payments made under erroneous division orders have specific limits)