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THOMAS DUNN MACMILLAN v. DANIEL F. CALLAHAN ET AL APPELLEES (08/18/77)

August 18, 1977

THOMAS DUNN MACMILLAN, APPELLANT
v.
DANIEL F. CALLAHAN ET AL APPELLEES



Appeal from Stephens County

COUNSEL

For Appellant: Joanne Strauss - Abilene, TX

For Appellee: C. G. Whitten - Abilene, TX

Author: Mccloud

Austin McCloud, Chief Justice

At issue is the ownership of an undivided 595/1500 royalty interest.

The questions to be discussed involve the inception of title doctrine and the effect of an unprobated will.

Plaintiffs, Daniel F. Callahan, Eugene H. Callahan, Laurance David Jones and Esther Marilyn Robinson, sued defendants, Thomas Dunn MacMillan, L. S. Kent and his unknown heirs, and the unknown heirs of Esther Dunn Callahan, deceased, seeking judgment quieting title and a declaration that they owned a 595/1500 royalty interest in the following described land in Stephens County, Texas:

The West 60 acres of the Southwest Quarter of Section 18, Lunatic Asylum Lands,

The West 60 acres of the Northwest Quarter of Section 25, Lunatic Asylum Lands;

80 acres being the South Half of the Southeast Quarter of Section 17, Lunatic Asylum Lands.

Plaintiffs alleged that oil and other hydrocarbons have been produced from the described land since 1957, but the purchaser of the production has refused to pay plaintiffs the proceeds from such production because of the claim of defendants.

Attorneys ad litem were appointed to represent the unknown heirs of Esther Dunn Callahan, deceased, and L. S. Kent and his heirs. Thomas Dunn MacMillan appeared and participated in the trial.

Following a non-jury trial, judgment was entered, based upon an agreement between the individual plaintiffs as to their respective ownership, that the royalty interest in question is owned as follows:

(a) Plaintiff, Daniel F. Callahan, 1/3 of 595/1500 royalty interest;

(b) Plaintiff, Eugene H. Callahan, 1/3 of 595/1500 royalty interest;

(c) Plaintiff, Laurance David Jones, 1/6 of 595/1500 royalty interest; and,

(d) Plaintiff, Esther Marilyn Robinson, 1/6 of 595/1500 royalty interest.

The court found that defendants had no right, title or interest in the 595/1500 royalty interest in question. The court expressly found that such royalty interest was acquired by Dan F. Callahan, deceased, when he was a single man and became his separate property. Thomas Dunn MacMillan has appealed. We affirm in part, reverse and render in part, and reverse and remand in part.

Appellant, MacMillan, contends the 595/1500 royalty interest in issue was the community property of Dan F. Callahan and wife, Esther Dunn Callahan, both deceased, and he is the owner of an undivided 1/2 of the royalty interest in question because he is the sole heir of Esther Dunn Callahan.

On June 30, 1909, Dan F. Callahan married Ora Haile. Appellees, Daniel F. Callahan and Eugene H. Callahan, were born of that marriage as was Katherine C. Jones, deceased, mother of appellees, Laurance David Jones and Esther Marilyn Robinson. Ora Haile Callahan died on October 20, 1918. Dan F. Callahan then married Esther Dunn on June 9, 1920. No children were born or adopted to the marriage of Dan F. Callahan and Esther Dunn Callahan. Dan F. Callahan died intestate on July 13, 1939, leaving as his survivors his widow, Esther Dunn Callahan, and his three children, Daniel F. Callahan, Eugene H. Callahan and Katherine C. Jones. Esther Dunn Callahan died on June 1, 1973, in the state of Louisiana. Appellees assert she died testate, while appellant contends we have no "jurisdiction" to consider her unprobated will. The appellant, Thomas Dunn MacMillan, is the nephew of Esther Dunn Callahan and her only surviving blood relative.

On May 4, 1920, at a time when Dan F. Callahan was a single person, he entered into an agreement with L. S. Kent which provides in part as follows:

"This Agreement, made this 4th day of May A.D. 1920, by and between L. S. Kent, party of the first part, and Dan F. Callahan, party of the second part, Witnesseth:

First: For valuable consideration said first party hereby transfers to said second party the undivided one-half interest in and to a certain contract between said first party herein and O. Curry and Allie Curry, his wife, for all the units representing one-half of the royalty of one-eighth of oil and gas upon the following described lands, to-wit:

(1) The west sixty (60) acres of the Southwest Quarter of Section eighteen (18), Lunatic Asylum Lands;

(2) The west sixty (60) acres of the Northwest Quarter of Section twenty-five (25), ...


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