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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. ...


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