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Boothe v. Green

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 22, 2017


         On appeal from the 267th District Court of De Witt County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa


          ROGELIO VALDEZ Chief Justice

         By three issues, appellants Pat A. Boothe, Sterling Price Boothe, and Michael George Malone appeal a summary judgment rendered in favor of appellees Elizabeth H. Green, Frank F. Henderson Jr., Caroline D. Bradford, Christin N. Dietze, and Alexis E. Dietze and the trial court's denial of their summary judgment. We reverse and render.

         I. Background

         Cora McCrabb, John McCrabb, and Mary Atkinson owned equal undivided fee interests in 1, 448.50 acres of farm and pasture land. In 1924, Cora executed her last will and testament, which stated, in pertinent part, the following:

II. All of the acreage property, to-wit, farm lands, and pasture lands owned by me at the time of my death, and wheresoever situated, I do give unto my three grand-children, Jessie McCrabb, J.F. McCrabb, and Mary Lee McCrabb, being children of my son, John McCrabb, said property to go and vest in said three children, share and share alike, and shall be held by them in fee simple and forever.
III. Subject to the terms of Paragraph Two hereof, all of the rest and residue of my estate, including any and all personal property and my home in Cuero, and my old home in Thomastown, and including any stocks, bonds, and notes, and my personal jewelry and including any land owned by me in any city or town; in fact, including all property of every kind, save and except pasture and farm acreage property, I do give to my granddaughter, Jessie McCrabb, to be held, owned, and enjoyed by her in fee simple and forever.

         Subsequently, in 1927, Cora, John, and Atkinson sold the 1, 448.50 acres in fee simple to J.L. Dubose; Dubose simultaneously conveyed to Cora, John, and Atkinson in equal shares an undivided one-half interest in the oil, gas, and minerals in, under, and that may be produced from the 1, 448.50 acres. Cora died in 1929.

         In 2013, appellants, who are heirs to J.F. and Mary, filed a petition for a declaration from the trial court that the undivided mineral interest in the 1, 448.50 acres owned by Cora upon her death passed equally to Jessie, J.F., and Mary Lee by virtue of Cora's last will and testament paragraph II. Appellees, who are heirs to Jessie, filed a counterclaim for trespass to try title claiming that at "[a]ll times mentioned, [appellees] were and are the owners in fee simple of this severed mineral interest located in Dewitt County, Texas" by the devise in Cora's will by virtue of the residuary clause. Appellees also asserted a claim for money had and received against appellants. Appellees and appellants filed traditional partial motions for summary judgment, each arguing that Cora's will gave them an interest in the mineral estate. The trial court granted appellees' motion and denied appellants' motion. The trial court also granted appellees' subsequent traditional partial motion for summary judgment, making the judgment final for purposes of appeal.

         II. Standard of Review

         In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the movant's motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). When both sides move for summary judgment and one is granted and the other denied, we determine all questions presented and render the judgment the trial court should have rendered. Lubbock Cnty. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex. 2002).

         III. Discussion

         By their first and second issues, appellants contend that Cora's 1924 last will and testament "specifically bequeathed the subject land to her three grandchildren" Jessie, J.F., and Mary Lee. Appellees counter that the doctrine of ademption applies because Cora no longer owned the 1448.50 ...

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