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In re Estate of Ethridge

Court of Appeals of Texas, Eleventh District

October 31, 2019

IN THE MATTER OF THE ESTATE OF MILDRED L. ETHRIDGE, DECEASED

          On Appeal from the County Court at Law Midland County, Texas Trial Court Cause No. P10778

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [3]

          OPINION

          KEITH STRETCHER JUSTICE.

         In this will-construction case, Appellant, Fred D. Davis Jr., appeals the trial court's "Order Determining Estate Distribution" and "Final Order to Remove Executor and Appoint Successor." Appellant raises two issues: (1) whether the trial court erred in finding that the term "personal effects" did not refer to "cash, receivables, interest in oil, gas or other minerals, royalties, [or] real property"; and (2) whether the trial court erred in finding that Appellant had misapplied property entrusted to his care in violation of his fiduciary duties and Section 404.003(2) of the Texas Estates Code. Because we conclude that the trial court properly construed the will at issue and properly removed Appellant as executor, we affirm.

         Background Facts

         In 1990, Mildred L. Ethridge executed a one-page typewritten will that she drafted without consulting an attorney. In relevant part, the will stated:

I, MILDRED L. ETHRIDGE, (femme sole) of Midland County, Texas, for the purpose of the distribution of my entire estate, real, personal and mixed, which I wish to have take effect at my death, do make, publish and declare this to be my Last Will and Testament, and I do hereby revoke all former wills and testamentaries heretofore made by me at any time.
FIRST
I hereby appoint and name Fred D. Davis, Jr. as Independent Executor and trustee of my estate, to serve without bond. I give Fred D. Davis, Jr. all my personal effects to clear my estate after my death.
SECOND
I give and bequeath my one half (1/2) ownership in my residence and homestead situated on the East 53 feet of Lot 5, West 16.9 feet of Lot 4, Block 1, Oxford Heights to Patricia Petosky.

         Appellant was Mildred's nephew-in-law. Mildred died on January 9, 1994, and her will was admitted to probate on April 7, 1994. Prior to her death, Mildred gifted the Oxford Heights residence to someone else, leaving Appellant as the only other person possibly named as beneficiary under the will.[1] The county court at law authorized Appellant to receive "Letters Testamentary" as the independent executor of Mildred's estate. Appellant filed an inventory of the estate. In the inventory, Part A described the money in Mildred's checking account, and Part B listed miscellaneous property that Mildred owned at the time of her death, including furniture and a television.

         At her death, Mildred also owned mineral royalties that were not specifically devised in her will or included in the inventory. After the will was probated, Enterprise Crude Oil LLC began paying royalties to Mildred's estate. Appellant opened a bank account for the estate to receive the funds. Believing he was entitled to the entire estate, Appellant transferred the funds into his personal account. Appellant and his wife, June Ethridge Davis, spent the funds on items unrelated to the estate.

         In 2010, Mildred's heirs discovered they were possibly entitled to the royalty payments from Mildred's estate. On July 8, 2014, Mildred's great-nephew, John Wright Ethridge Jr., sent a letter to Appellant requesting an accounting of the estate pursuant to ...


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