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.

ACCEPTED
13-15-00267-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
10/26/2015 4:32:31 PM
Dorian E. Ramirez
CLERK

13-15-00267-CV
IN THE COURT OF APPEALS
THIRTEENTH DISTRICT FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI, TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
10/26/2015 4:32:31 PM
PAT A. BOOTHE; STERLING PRICE BOOTHE;
DORIAN E. RAMIREZ
AND MICHAEL GEORGE MALONE, Clerk

Appellants

V.

ELIZABETH H. GREEN, FRANK F.; HENDERSON, JR.; WELDON W.
DIETZE; JOHN F. DIETZE, JR.; CAROLINE D. BRADFORD;
CHRISTIN N. DIETZE; AND ALEXIS E. DIETZE,

Appellees

ON APPEAL FROM THE 267TH JUDICIAL DISTRICT COURT
DEWITT COUNTY, TEXAS

APPELLANTS’ BRIEF

Kevin F. Mickits (SBN 14011500) Frank Weathered (SBN 20998600)
John C. Heymann (SBN 09565300) DUNN, WEATHERED,
UPTON, MICKITS & HEYMANN, L.L.P COFFEY & KASPERITIS, P.C.
Lincoln Center 611 South Upper Broadway
7800 IH-10 West, Suite 740 Corpus Christi, Texas 78401
San Antonio, Texas 78230 t/361.883.1594; f/361.883.1599
t/210.881.3071; f/210.881.3090 E-MAIL: frank@weatheredlaw.com

ATTORNEYS FOR APPELLANTS

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES & COUNSEL

Plaintiffs/Counter-Defendants/
Appellants: Trial/Appellate Counsel:
Michael Malone; Price Boothe; and, Frank Weathered
Pat Boothe DUNN, WEATHERED, COFFEY,
RIVERA & KASPERITIS, P.C.
611 S. Upper Broadway
Corpus Christi, Texas 78401

Kevin F. Mickits
John C. Heymann
UPTON, MICKITS & HEYMANN, L.L.P
Lincoln Center
7800 IH-10 West, Suite 740
San Antonio, Texas 78230

Defendants/Appellees: Trial/Appellate Counsel:
Elizabeth H. Green; Frank F. Frank F. Henderson, Jr.
Henderson, Jr.; Weldon W. Dietze; 113 W. Santa Rosa Street
John F. Dietze, Jr.; Caroline D. P.O. Box 366
Bradford; Christin N. Dietze; and, Victoria, Texas 77902-0366
Alexis E. Dietze

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. SUMMARY JUDGMENT STANDARD OF REVIEW.. . . . . . . . . . . . . . . . . 7

II. TITLE TO THE MINERALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. RULES OF WILL CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . 7

B. CORA’S WILL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. THE ADEMPTION DOCTRINE DOES NOT DICTATE
A DIFFERENT RESULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. OIL AND GAS LEASES IN THE 1940S SUPPORT
BOOTHE-MALONE’S CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . 20

III. MONEY HAD AND RECEIVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. GREEN-HENDERSON HOLD NO OWNERSHIP INTEREST IN
THE ROYALTY PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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 B. GREEN-HENDERSON LACK STANDING. . . . . . . . . . . . . . . . . . 22

RELIEF REQUESTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF WORD COUNT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iv
 INDEX OF AUTHORITIES

RULES

Amoco Prod. Co. v. Smith, 946 S.W.2d 162
(Tex. App.-El Paso 1997, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Burch v. McMillan, 15 S.W.2d 86 (Tex. Civ. App.—Eastland 1929, no writ). . . . 11

Doss v. Homecomings Fin. Network, Inc., 210 S.W.3d 706
(Tex. App.-Corpus Christi 2006, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Freeman v. Stephens Prod. Co., 171 S.W.3d 651
(Tex. App.-Corpus Christi 2005, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Gavenda v. Strata Energy, Inc., 705 S.W.2d 690 (Tex. 1986). . . . . . . . . . . . . 22, 23

Grisham v. Lawrence, 298 S.W.3d 826 (Tex. App.—Tyler 2009, no pet.).. . . . . . 16

Grynberg v. M-I L.L.C., 398 S.W.3d 864
(Tex. App.-Corpus Christi 2012, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Holloway’s Unknown Heirs v. Whatley, 104 S.W.2d 646
(Tex. Civ. App.—Beaumont 1937) aff’d 131 S.W.2d 89 (Tex. 1939). . . . . . . 16, 17

Hudgeons v. Hallmark, 2015 WL 5634395 *2
(Tex. App.-Fort Worth 2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Huggins v. Royalty Clearinghouse, Ltd., 2015 WL 4637630
(W.D. Tex. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jones v. Fuller, 856 S.W.2d 597 (Tex. App.-Waco 1993, writ denied). . . . . . . . . 12

Luckel v. White 819 S.W.2d 459 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Murphy v. Hunnicutt, 199 S.W.2d 298
(Tex. Civ. App.—Texarkana 1946, writ ref.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

v
Parker v. Parker, 131 S.W.3d 524
(Tex. App.—Fort Worth 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Peacock v. Owens, 259 S.E.2d 488 (Ga. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Perfect Union Lodge v. Interfirst Bank of San Antonio, 748 S.W.2d 218
(Tex. 1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Philipello v. Nelson Family Farming Trust, 349 S.W.3d 692
(Tex. App.—Houston [14th Dist.] 2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . 12

Rogers v. Carter, 385 S.W.2d 563
(Tex. Civ. App.–San Antonio 1965, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . 11, 16

San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000).. . . . . . . 7, 8, 16

Schlittler v. Smith, 101 S.W.2d 543 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237
(Tex. App.-Austin 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Stahl, 610 S.W.2d at 148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Stanolind Oil & Gas Co. v. Terrell, 183 S.W.2d 743
(Tex.Civ.App.—Galveston 1944, writ ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 359
(Tex. App.—Fort Worth 2003, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Stewart v. Selder, 473 S.W.2d 3 (Tex. 1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Terrell v. Graham, 576 S.W.2d 610 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . 12

vi
 STATEMENT OF THE CASE

This is a will construction case. See CR 170, 268. Appellants (“Boothe-

Malone”) were Plaintiffs and Counter-Defendants below. CR 170. Appellees (“Green-

Henderson”) were Defendants and Counter-Plaintiffs. CR 268. At issue is title to an

undivided 1/18th mineral interest in 1,448.50 acres of land located in DeWitt County.

CR 170. Both sides moved for partial summary judgment on title. CR 110, 128. The

trial court granted Green-Henderson’s motion and denied Boothe-Malone’s, ruling

that Green-Henderson have title to the subject minerals. CR 275. Green-Henderson

then filed a second motion for partial summary judgment seeking recoupment of oil

and gas royalty payments based on a claim of money had and received. CR 279. The

trial court granted this motion as well. CR 366. Ultimately, the two summary

judgments were merged into a final judgment, which Boothe-Malone are now

appealing. CR 375, 386.

STATEMENT REGARDING ORAL ARGUMENT

This will construction case involves the probate doctrine of “ademption.”

Ademption describes the acts by which a specific legacy becomes inoperative because

of the “disappearance” of its subject matter from the testator’s estate during his

lifetime. Surprisingly, the Thirteenth Court has never addressed ademption, at least

1
not according to WestLaw. This case presents the opportunity to do so. Because it is

the first time, oral argument will be helpful to the Court.

ISSUES PRESENTED

1. Did the trial court err in granting Green-Henderson’s motion for

summary judgment on the issue of title to the minerals?

2. Did the trial court err in denying Boothe-Malone’s motion for summary

judgment on the issue of title to the minerals?

3. Did the trial court err in granting Green-Henderson’s motion for

summary judgment on the issue of money had and received?

STATEMENT OF FACTS

At issue in this appeal is title to an undivided 1/18th mineral interest in 1,448.50

acres of land, more or less, located in DeWitt County, Texas, and more particularly

described in a mineral deed dated August 10, 1927, from J.L. Dubose to Cora

McCrabb, John McCrabb, and Mary Atkinson. CR 147.

The relevant timeline is as follows:

1924 - Cora McCrabb executed her Last Will and Testament. CR 150. Her Will

provided that:

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

2
 property to go to 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 grand-daughter, Jessie McCrabb, to be held, owned and
enjoyed by her in fee simple and forever.

CR 150 (emphasis added). At the time of the 1924 Will, Cora McCrabb, John

McCrabb and Mary Atkinson owned equal undivided fee interests in the 1,448.50

acres, which was farm land and pasture land, including both the surface and the

minerals.

August 10, 1927 - Cora McCrabb, John McCrabb and Mary Atkinson conveyed

the 1,448.50 acres to J. L. Dubose in fee. CR 145-46. Dubose then simultaneously re-

conveyed an undivided one-half (½) of the oil, gas and minerals in, under, and that

may be produced from the 1,448.50 acres back to Cora McCrabb, John McCrabb, and

Mary Atkinson, in equal shares. CR 147-48.

The deed out of Dubose and back into the McCrabbs and Atkinson recited that:

Whereas, in the trade wherein and whereby I [ referring to J. L. Dubose]
acquired said land, it was agreed by and between myself and the said
Mrs. Cora E. McCrabb, John S. McCrabb and Mrs. Mary E. Atkinson
that they should reserve and retain for themselves an undivided ½ of all
oil, gas sulfur, coal and minerals of any kind and every kind, character
or nature, on or under said 1,448 ½ acres of land and at my request said

3
 retention and reservation of said oil, gas and minerals was not specified
and included in the deed from Mrs. Cora McCrabb, John S. McCrabb
and Mrs. Mary E. Atkinson to me, for the reason that I did not desire my
deed to have this provision in it, for my convenience and for my personal
reasons; and

Whereas, it was agreed by and between the said Mrs. Cora E. McCrabb,
John S. McCrabb and Mrs. Mary E. Atkinson and myself that instead of
reserving the oil, gas and minerals in said deed that I should
simultaneously with the execution of deed to me execute to said parties
a bill of sale, transfer, assignment and conveyance to an undivided ½
half of all gas, oil and minerals of every kind on or under said 1,448 ½
acres of land.

CR 147.

1929 - Cora McCrabb died and her Will was probated in the County Court of

DeWitt County, Texas. CR 149. At the time of her death, she owned an undivided

1/6th mineral interest (1/3 of ½) in the subject property, which was for all intents and

purposes reserved when the property was otherwise sold in 1927 to J. L. Dubose. See

CR 145-48.

Boothe-Malone are the successors-in-interest to an undivided 1/3 of Cora’s 1/6th

(1/18th ) mineral interest in the 1,448.50 acres. CR 170. They acquired their interest

through J.F. McCrabb, one of Cora’s grandchildren, by virtue of Paragraph II of

Cora’s Will. Id. On the other hand, Green-Henderson claim that they acquired the

same undivided 1/18th interest through their predecessor-in-interest, Jessie McCrabb,

4
another of Cora’s grandchildren, by virtue of Paragraph III of the same Will, and that

Boothe-Malone acquired no interest in the 1,448.50 acres. CR 268.

Consistent with Boothe-Malone’s claim, but not necessary to their claim, all or

portions of the 1,448.50 acres were leased for oil and gas in 1941 and 1943, and the

leases were executed by J.F. McCrabb, Boothe-Malone’s predecessor in title, Jessie

McCrabb Houchins, Green-Henderson’s predecessor in title, John J. McCrabb, Cora

McCrabb’s son and the executor of her estate, and the remaining mineral interest

owners. CR 154-169. These leases evidenced the fact that J.F. McCrabb acquired a

mineral interest in the subject property by virtue of Cora’s Will, and that Jessie E.

Houchins and John S. McCrabb acknowledged that interest by executing the same

leases. If J.F. McCrabb had not acquired an interest in the 1,448.50 acres through

Cora’s Will, he would not have owned or claimed any interest in the subject property

and, consequently, he would not have executed the leases. Since Cora’s death,

Boothe-Malone and their predecessors-in-title have been either in possession or

entitled to possession of the subject mineral interest.

SUMMARY OF THE ARGUMENT

Cora McCrabb’s 1924 Last Will and Testament specifically bequeathed the

subject land to her three grandchildren. In 1927, prior to her death, she sold her

interest in the surface estate and an undivided ½ of the mineral estate to J. L. Dubose,

5
but retained an undivided 1/3 of the remaining ½ mineral interest. At the time of her

death in 1929, she owned this undivided 1/6 mineral interest. Because it was a portion

of the specific bequest contained in paragraph II of her Will, it necessarily passed to

her three grandchildren equally (1/18 to each). The residuary clause in paragraph III

of the Will was ineffective as to the specific bequest contained in paragraph II. This

is because the mineral interest retained by Cora did not suffer ademption.

Furthermore, the residuary clause contained “save and except” language which

specifically excluded the taking of the subject property, or any portion thereof, by

Jessie McCrabb pursuant to the residuary clause. As a matter of law, Boothe-Malone

own the disputed mineral interest. This Court should therefore reverse the judgment

awarding title to Green-Henderson and render judgment awarding title to Boothe-

Malone.

Because Boothe-Malone own title to the 1/18 mineral interest at issue, they

were the rightful recipients of the royalty interests paid them by the operator under the

oil and gas lease on the subject property. Therefore, the trial court erred in awarding

Green-Henderson any “recoupment” of the royalty payments based on a theory of

money had and received. The court also erred because Green-Henderson lack standing

to assert money had and received.

6
 ARGUMENT

I. SUMMARY JUDGMENT STANDARD OF REVIEW

Both sides moved for traditional summary judgment as a matter of law on the

issue of title. The trial court granted Green-Henderson’s motion and denied Boothe-

Malone’s. The court of appeals reviews these rulings de novo because they present a

question of law. E.g. Grynberg v. M-I L.L.C., 398 S.W.3d 864, 873 (Tex. App.-Corpus

Christi 2012, pet. denied). When both sides move for traditional summary judgment

on the same issue and the trial court grants one motion and denies the other, as here,

the court of appeals determines all questions presented and, if it determines the trial

court erred, renders the judgment the trial court should have rendered. Id. Here, the

trial court erred in granting Green-Henderson’s motion for summary judgment and

denying Boothe-Malone’s. Therefore, this Court should reverse the trial court’s

judgment on title and render judgment that title is in Boothe-Malone.

II. TITLE TO THE MINERALS

A. RULES OF WILL CONSTRUCTION

In construing a will, the court’s focus is on the testatrix’s intent. San Antonio

Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). This intent must be

ascertained from the language found within the four corners of the will. Id.

Determining a testatrix’s intent from the four corners of a will requires a careful

7
examination of the words used. Id. If the will is unambiguous, a court should not go

beyond the will’s specific terms in search of the testatrix’s intent. Id. Whether a will

is ambiguous is a question of law for the court. Steger v. Muenster Drilling Co., Inc.,

134 S.W.3d 359, 373 (Tex. App.—Fort Worth 2003, pet. denied). A will is

ambiguous only when the application of established rules of construction leaves its

terms susceptible to more than one reasonable meaning. Id. If the court can give a

certain or definite legal meaning or interpretation to the words used, the will is

unambiguous. Id. Absent ambiguity, the construction of a will is a matter of law.

Parker v. Parker, 131 S.W.3d 524, 530 (Tex. App.—Fort Worth 2004, pet. denied).

The cardinal rule for construing a will mandates that the testatrix’s intent be

ascertained by looking to the provisions of the instrument as a whole, as set forth in

the “four corners” of the testamentary document. The construing court should

effectuate that intent as far as legally possible. Perfect Union Lodge v. Interfirst Bank

of San Antonio, 748 S.W.2d 218, 220 (Tex. 1988). See also Stewart v. Selder, 473

S.W.2d 3, 7 (Tex. 1971). Stated differently, the controlling rule of construction of an

unambiguous will is that the intention of the testatrix must be ascertained, if possible,

at the time she executed the will, and from the four corners of the will, giving meaning

to all parts, if possible. Murphy v. Hunnicutt, 199 S.W.2d 298, 300 (Tex. Civ.

App.—Texarkana 1946, writ ref.).

8
 B. CORA’S WILL

Looking at paragraph II of Cora’s Will, it is evident that she bequeathed to her

three grandchildren, in fee simple, 1448.50 acres of property/land. Specifically, she

bequeathed “all of the acreage property, to-wit, farm lands and pasture lands owned

. . .”). Stated differently, the Will contains a specific bequest of Cora’s acreage

property, which was further described as “farm lands and pasture lands.” “Lands”

necessarily included both the surface and mineral interests owned by Cora McCrabb

at the time she executed the Will.

Turning to paragraph III, the residuary clause, it states:

Subject to the terms of paragraph 2 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 Thomasville, 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, own and enjoy by her in fee
simple and forever.

(emphasis added). This language indicates that paragraph III was meant to be

subservient to paragraph II, which bequeathed all farm lands and pasture lands to

Cora’s three grandchildren. This is further emphasized by the language wherein Cora

bequeathed “all property of every kind save and except farm and pasture acreage to

her granddaughter Jessie McCrabb.” In plain language, Cora gave or bequeathed all

land owned by her at the time of her death to Jessie McCrabb except the lands already

9
given to her three grandchildren in paragraph II. It was never Cora’s intent to leave

the property/lands specifically identified in paragraph II exclusively to her

granddaughter Jessie McCrabb. Rather, the language establishes that Cora’s intent was

to leave her property/farm lands and pasture lands to her three grandchildren in equal

shares and not exclusively to Jessie McCrabb, who was the beneficiary of the

residuary clause in paragraph III. Further, it was never Cora’s intent to leave these

farm lands or pasture lands to her granddaughter Jessie in fee simple. This is

established by the “save and except” language contained in paragraph III. The Will

is unambiguous. As a matter of law, the minerals that Cora owned at the time of her

death passed pursuant to paragraph II of her Will to her three grandchildren in equal

shares.

C. THE ADEMPTION DOCTRINE DOES NOT DICTATE A DIFFERENT RESULT

In response to Boothe-Malone’ motion for summary judgment, and in support

of their own motion for summary judgment, Green-Henderson asserted that the

specific bequest contained in paragraph II of Cora’s Will suffered “ademption” when

she deeded the 1448.50 acres to J. L. Dubose in 1927. This ignores the simultaneous

cross-conveyance executed by J. L. Dubose back to Cora and the two others on the

same date. While alienation by the testatrix of the entire subject of the specific legacy

10
would end the legacy, the doctrine of ademption by alienation operates pro tanto only.

Burch v. McMillan, 15 S.W.2d 86, 89 (Tex. Civ. App.—Eastland 1929, no writ).

The ademption doctrine describes the acts by which a specific legacy becomes

inoperative because of the “disappearance” of its subject matter from the testator’s

estate during his lifetime. Rogers v. Carter, 385 S.W.2d 563, 565 (Tex. Civ. App.–San

Antonio 1965, writ ref’d n.r.e.).The general rule is that a specific legacy is adeemed

in its entirety if the entire thing given is disposed of by the testator during his lifetime.

Id. If the entire thing given is only partially disposed of during the testator’s lifetime,

however, the resulting ademption operates pro tanto, disposing of only that part of the

legacy that was alienated; the remainder passes to the legatees. Id.; Burch, 15 S.W.2d

at 89.

In Rogers, six parcels of land were specifically bequeathed to the testator’s

children, but the testator then disposed of his interest in four of six parcels prior to his

death. Upon the testator’s death, it was argued by the beneficiary of the will’s

residuary clause that the remaining two parcels of land should pass through the

residuary clause because the sale of four of the six parcels adeemed the specific

bequest in its entirety. The San Antonio Court disagreed. The court reiterated that

while ademption will occur in its entirety when all of the property contained in the

specific bequest has been alienated by the testator during his lifetime, ademption does

11
not occur as to any portion of the bequest that remains in the possession or ownership

of the testator at the time of his death.

By virtue of the cross-conveyance of August 10, 1927, from Dubose back to

Cora, an undivided 1/6 interest in the minerals under the subject property (1/3 of ½)

remained in Cora’s ownership at the time of her death. The deed from Dubose back

to Cora unambiguously reflects this.

The construction of an unambiguous deed is a question of law for the court.

Luckel v. White 819 S.W.2d 459, 461 (Tex. 1991); Philipello v. Nelson Family

Farming Trust, 349 S.W.3d 692, 694 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied). In construing deeds, the primary objective is to ascertain the intent of the

parties from the four corners of the deed. Luckel, 819 S.W.2d at 461; Philipello 349

S.W.3d at 694. To ascertain the parties’ true intention, the court examines the deed’s

language in its entirety. Id. That intention, when ascertained, prevails over arbitrary

rules of construction. Deeds executed at the same time between the same parties and

in reference to the same subject matter should be interpreted together to ascertain the

intent of the parties. Jones v. Fuller, 856 S.W.2d 597, 601 (Tex. App.-Waco 1993,

writ denied), citing Terrell v. Graham, 576 S.W.2d 610, 611 (Tex. 1979).

In the case at bar, there were two simultaneously executed deeds in August

1927 that were also simultaneously recorded in DeWitt County. The first deed

12
conveyed 1448.50 acres to J. L. Dubose. That deed did not contain reservation

language. However, the simultaneously executed cross-conveyance by J. L. Dubose

back to the McCrabbs and Atkinson clearly established the intent of the parties. The

critical language of this cross-conveyance was that:

Whereas, in the trade wherein and hereby I [referring to J. L. Dubose]
acquired said land it was agreed by and between myself and said Cora E.
McCrabb, John B. McCrabb and Mary E. Atkinson that they should
reserve and retain for themselves an undivided ½ of all oil, gas, sulphur,
coal and minerals of any and every kind, character, or nature, on or under
said 1448 ½ acres of land, and at my request, said retention and
reservation of said oil, gas, was not specified and included in the Deed
from Ms. Cora E. McCrabb, John B. McCrabb and Mary E. Atkinson to
me for the reason that I did not desire my Deed to have this provision,
for my convenience and for personal reasons.

Whereas, it was agreed by and between the said Ms. Cora E. McCrabb,
John B. McCrabb and Ms. Mary E. Atkinson and myself that instead of
reserving the oil, gas and minerals in said Deed, that I should
simultaneously with execution of Deed to me execute to said parties a
Bill of Sale, Transfer, Assignment and Conveyance to an undivided ½
of all gas, oil, and minerals of every kind on or under said 1448 ½ acres
of land.

CR 147. These recitals are binding on Cora’s successors-in-interest. “All parties to a

deed are bound by the recitals therein, which operate as an estoppel, working on the

interest in the land if it be a deed of conveyance, and binding both parties and privies,

privies in blood, privies in estate, and privies in law.” Freeman v. Stephens Prod. Co.,

171 S.W.3d 651, 654 (Tex. App.-Corpus Christi 2005, pet. denied).

13
 As reflected in the two August 10, 1927 deeds, it was the intent of the parties

that Dubose receive 100% of the surface of the 1448.50 acres in question, together

with an undivided ½ of the minerals in the subject property. It was also the intention

of the parties that Cora McCrabb, John McCrabb and Mary Atkinson retain and

reserve the remaining undivided ½ mineral interest in the subject property. The

issuance of the cross-conveyance as opposed to a reservation in the deed from Cora

and the others to Dubose was nothing more than a procedural courtesy to Dubose. For

his “convenience” and “personal reasons,” he did not want any reservation language

to be included in his deed. Instead, the parties agreed to execute and file cross-deeds

having the same legal effect as a reservation of mineral interests by Cora and the

others. The effect of the transaction was that Cora McCrabb, John McCrabb and Mary

Atkinson each retained an undivided 1/6 mineral interest (1/3 of ½) in the subject

property. Since Cora owned this 1/6 mineral interest at the time of her death, her 1/6

mineral interest passed to her three grandchildren equally pursuant to paragraph II.

The mineral interest in the subject property retained by Cora through the 1927

cross-conveyance, and still owned by her at the time of her death, never suffered

ademption. It remained in her possession/ownership at the time of her death, and

therefore was specifically bequeathed to her grandchildren pursuant to paragraph II

14
of her Will. As a matter of law, the mineral interests in dispute did not pass pursuant

to the residuary clause as argued by Greene-Henderson.1

In the trial court, Green-Henderson presented the following argument on

ademption:

Assume that in 1924 when Cora . . . wrote her Will, she owned
undivided interests in three tracts of “farm lands and pasture lands,” to-
wit: 1) one-third (1/3) undivided interest in the 1448-1/2 acres located
outside of Westoff, Texas; 2) one-third (1/3) undivided interest in 3274
acres adjacent to Thomaston, Texas; and 3) one-third (1/3) undivided
interest in 198 acres located outside Cuero, Texas. In 1927, she disposed
of her undivided one-third interest in the 1448-1/2 acre tract except for
an undivided one-third (1/3) interest in one-half (½) of the mineral
estate. When Cora . . . died on January 10, 1929, instead of three tracts
of “farm lands and pasture lands,” she only owned interest in two tracts,
i.e., the 3274 acres and the 198 acres . . ., which passed in equal shares
under Paragraph II of her Will to her three grandchildren . . . . In other
words, the devise of “farm lands and pasture lands” had been adeemed
pro tanto as to the 1448 ½ acres – just as caselaw prescribes.

CR 245-46. This argument is flawed because it ignores the cross-conveyance from

Dubose back to Cora, and it focuses artificially on the adjectives “farm” or “pasture,”

not on what was actually bequeathed: the “lands.” The argument also ignores the fact

that because the devised real property interest was described by its physical location

– the farm land and pasture land – the 1/6 mineral interest was identifiable at the time

1
Even if the Court determined that the cross-conveyance from Dubose back to Cora was not a
“reservation” per se, the result would be the same. The Texas Supreme Court has noted that “there
are recognized exceptions to the ademption rule.” Stahl, 610 S.W.2d at 148. One such exception is
reacquisition of the property by the testatrix. E.g. Peacock v. Owens, 259 S.E.2d 488 (Ga. 1979).

15
of Cora’s death, i.e. it never “disappeared” from Cora’s estate. Rogers, 385 S.W.2d

at 565 (doctrine of ademption only applies when the subject matter of the devise has

disappeared from the estate at the time of the testator’s death). Therefore, there was

no ademption of the 1/6th mineral interest.

In determining a testatrix’s intent, the court focuses not on what she intended

to write, but the meaning of the words actually used. San Antonio Area Foundation,

35 S.W.3d at 639. A conveyance of “land” without reservations includes all minerals

and mineral rights. Schlittler v. Smith, 101 S.W.2d 543, 630 (1937). The word “land”

includes not only the surface of the earth, but everything under it or over it.

Holloway’s Unknown Heirs v. Whatley, 104 S.W.2d 646, 649 (Tex. Civ.

App.—Beaumont 1937) aff’d 131 S.W.2d 89 (Tex. 1939). The term “land” in its legal

sense includes minerals in place, whether severed or not. Grisham v. Lawrence, 298

S.W.3d 826, 831 (Tex. App.—Tyler 2009, no pet.). The term “lands” is not as broad

as that of “property,” but it includes all interest in the land, or that lies above or below

it. Whatley, 104 S.W.2d at 648. Whatley explained the rationale as follows:

It seems to us that under the authorities, the term “land,” in its legal
sense, does include oil and minerals in place. Before severance of the
mineral estate from the balance of the estate by conveyance, reservation
or exception, the term land certainly includes both. So, in the legal
sense, the mineral estate in place is just as truly “land” after it is so
severed from the surface as the surface is “land” after it is severed from
the minerals. In other words, it is our conclusion that oil and other

16
 minerals in place are in a legal sense “land”, whether they have been
constructively severed from the surface estate or not.

Id.

From this it follows that pursuant to the plain meaning of the language within

the four corners of paragraph II, Cora specifically bequeathed to her three

grandchildren all of her properties/land, which would include the surface and all

minerals in, on and under the 1448.50 acres.

Finally, Green-Henderson relied in the trial court on Spiegel v. KLRU

Endowment Fund, 228 S.W.3d 237 (Tex. App.-Austin 2007, pet. denied), an

ademption case, but their reliance is misplaced. In Spiegel, Martha Spiegel executed

a will in 1999 leaving her husband Robert “our homestead.” At the time, the couple’s

homestead was 300 Plum Creek Lane. In 2002, the couple filed for divorce. Through

a mediated property settlement, Martha received the Plum Creek property as her

separate property, and Robert moved to a different location, which he then claimed

as his homestead. Before the divorce became final, Martha died and Robert claimed

the Plum Creek residence under her will. The court disagreed, however, holding that

Martha’s devise of “our homestead,” as opposed to 300 Plum Creek Lane, was

adeemed because at the time of her death 300 Plum Creek Lane had lost its

characterization as “our homestead.” Green-Henderson argue that Spiegel is analogous

to the case at bar because Cora’s devise of the 1448.50 acre tract as “pasture land and

17
farm land” in 1924 lost its characterization as pasture and farm land in 1927 when the

surface was conveyed to Dubose. Green-Henderson conclude from this that the devise

of the 1448.50 acres was therefore adeemed.

The Spiegel court’s reasoning highlights the distinction between that case and

the case at bar. The Spiegel court reasoned that Martha’s bequest of “our homestead”

was adeemed only because Robert had established his own separate homestead at the

time of Martha’s death and because he had agreed that Martha would keep the Plum

Creek residence as her separate property. 228 S.W.3d at 243. Hence, “no property

could be identified by th[e] phrase [‘our homestead’] at the time of Martha’s death .

. . .” Id. As the court put it, “[b]ecause Robert discontinued using the Plum Creek

residence as his home and because he had an intention not to use it as his home again,

. . . the phrase ‘our homestead’ in Martha’s will did not refer to the Plum Creek

residence at the time of her death.” Id. at 244.

In the case at bar, this Court cannot say that. To begin, unlike “our homestead”

in Spiegel, the property devised by Cora that was present in her estate at her death was

readily identifiable: it was 1/6 (split three ways) of the minerals under the “farm land

and pasture land,” i.e. the 1448.50 acres. Furthermore, unlike the former husband in

Spiegel, Boothe-Malone’s predecessor-in-interest never renounced his grandmother’s

bequest nor did he take action that re-characterized the nature of the 1448.50 acres.

18
He did not agree that the 1448.50 acres was no longer property he had an interest in

under his grandmother’s Will. Thus, there was no ademption and the phrase “farm

land and pasture land” in Cora’s Will continued to refer to the 1448.50 acres at the

time of her death.

Though long recognized, ademption is a harsh doctrine which, if applied here,

would result in rewriting Cora’s Will by removing property from her specific devise

that was still in her estate at the time of her death. At the time she executed her Will,

it was obviously Cora’s intent that her three grandchildren, including Boothe-

Malone’s predecessor-in-interest, inherit the property, both surface and minerals,

described in paragraph II as the “farm land and pasture land.” While Cora no longer

had an ownership interest in the property’s surface, or ½ of its minerals, at the time

of her death, she most assuredly retained an ownership interest in the other ½ of the

minerals. If it was her intent that instead of all three grandchildren inheriting her 1/6

mineral interest through paragraph II, she now wanted just the one grandchild to

inherit that interest through paragraph III, she could have easily redrawn her Will

between 1927 and 1929 to say so. That she did not redraw her Will speaks loudly and

clearly to her intent, which never changed from the time she executed her Will to the

time of her death. There was no ademption of her 1/6 mineral interest.

19
 D. OIL AND GAS LEASES IN THE 1940S SUPPORT BOOTHE-MALONE’S
CLAIM

Four oil and gas leases which cover all or a portion of the subject property were

executed subsequent to Cora’s death. Although these leases are not necessary to

Boothe-Malone’s claim of title, they are consistent with that claim. Each of the four

leases was signed by, among others, John S. McCrabb, who was Cora’s son and the

executor of her estate; Jessie Houchins, Green-Henderson’s predecessor in title; and

J.F. McCrabb, Boothe-Malone’s predecessor in title. All recognized that J. F.

McCrabb owned an interest in the subject property by virtue of Cora’s Will. Had

Jessie Houchins or John McCrabb believed that J. F. McCrabb did not inherit a

portion of this interest from his grandmother Cora, it is not likely that J. F. McCrabb

would have executed the leases.2

III. MONEY HAD AND RECEIVED

After the trial court granted summary judgment for Green-Henderson on title,

Green-Henderson filed another motion for partial summary judgment seeking to

2
On October 14, 1936, Jessie McCrabb Houchins and Mary Lee Mood executed a power of attorney
in favor of John S. McCrabb, thereby granting to John S. McCrabb “full power authority, in our
names place and stead, to lease for oil, gas and mineral purposes, on such terms, provisions and
conditions as to him may seem proper, any land, and any interest in any land, owned by us… in
Victoria County and/or DeWitt County, in the State of Texas, giving and granting our said Agent
and Attorney in Fact full power and authority to execute any oil, gas and mineral leases in our
names…. .” CR 265-67. This power of attorney confirms that by and through John S. McCrabb,
Jessie McCrabb Houchins and Mary Lee Mood did in fact acknowledge J.F. McCrabb’s interest in
the subject land.

20
collect royalty payments that were previously paid by certain lessees to Boothe-

Malone before payments were suspended and before the trial court’s summary

judgment on title. CR 279. Green-Henderson based their motion upon the equitable

theory of “money had and received.” They claimed they were due a “refund or

rebate” for all royalty payments paid to Boothe-Malone. The trial court agreed. CR

366. This was error.

A. Green-Henderson hold no Ownership Interest in the Royalty
Payments

One of the elements of money had and received is that the money must belong

to the plaintiff in equity and good conscious. E.g. Doss v. Homecomings Fin. Network,

Inc., 210 S.W.3d 706, 710-11 (Tex. App.-Corpus Christi 2006, pet. denied). The trial

court’s award of money had and received is erroneous because, as demonstrated, the

court’s ruling on title is erroneous. Because Boothe-Malone hold title to the subject

property, Greene-Henderson do not have an ownership interest in the money paid to

Boothe-Malone. Therefore, no royalty payments made to Boothe-Malone for their

1/18 mineral interest could possibly have been improper. For that reason, the trial

court’s second summary judgment must be reversed.

21
 B. GREEN-HENDERSON LACK STANDING

There is another reason, separate and distinct from the above, why the trial

court erred. Specifically, Green-Henderson lack standing to recover directly from

Boothe-Malone. If any party has a claim, it is the operator that paid the money.

As with any claim, standing is required for a plaintiff to recover for money had

and received. Hudgeons v. Hallmark, 2015 WL 5634395 *2 (Tex. App.-Fort Worth

2015, no pet.). Where an operator mistakenly pays a royalty owner funds it should

have paid to another royalty owner, the operator has standing to seek recoupment

under money had and received. Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 163-64

(Tex. App.-El Paso 1997, no writ). After all, it is the operator that has parted with the

money.

In fact, all of the cases cited in Green-Henderson’s motion for partial summary

judgment on money had and received involved claims brought by the party who

mistakenly, or as the result of fraud, paid the money in the first place.

Boothe-Malone duly take note that in their reply to Boothe-Malone’s summary

judgment response, Green-Henderson cited a case, Gavenda v. Strata Energy, Inc.,

705 S.W.2d 690 (Tex. 1986), which states that an underpaid royalty owner has a claim

for unjust enrichment against an overpaid royalty owner. Id. at 692. However, this

statement is dicta because Gavenda involved a suit by the underpaid royalty owner

22
against the operator, not against the overpaid royalty owner. The actual holding in

Gavenda was that the “binding until revoked” rule for payments made in reliance on

erroneous division orders does not apply where the operator prepares an erroneous

division order and retains the benefits. Id. citing Stanolind Oil & Gas Co. v. Terrell,

183 S.W.2d 743 (Tex.Civ.App.—Galveston 1944, writ ref'd).

Boothe-Malone also take note of Huggins v. Royalty Clearinghouse, Ltd., 2015

WL 4637630 (W.D. Tex. 2015), in which the court held that an underpaid royalty

owner had a claim against the overpaid royalty owner for unjust enrichment. Id. at *9.

In Huggins, however, the evidence was undisputed that it would be unconscionable

for the overpaid royalty owner to retain the mistakenly disbursed royalty payments

because he received the payments “with full knowledge he had previously and validly

conveyed his royalty interest in the Units to RCH via the Deed. Those royalty

payments were and are RCH's property, and Huggins has profited at RCH's expense

by retaining them. RCH is entitled to restitution for that wrong.” Id. In the case at bar,

there is no evidence of a “wrong” on the part of Boothe-Henderson. To the contrary,

the parties are in a good faith title dispute. This Court should reverse the summary

judgment on money had and received.

23
 RELIEF REQUESTED

Boothe-Malone pray that the Court reverse the judgment awarding title to the

disputed mineral interest to Green-Henderson and render judgment awarding title to

the disputed mineral interest to Boothe-Malone. They further pray that Green-

Henderson take nothing on the money had and received claim. Alternatively, Boothe-

Malone pray that the Court remand the money had and received claim for further

proceedings consistent with the Court’s opinion. Boothe-Malone pray for all further

relief to which they may be entitled.

Respectfully submitted,

DUNN, WEATHERED, COFFEY,
RIVERA & KASPERITIS, P.C.
611 South Upper Broadway
Corpus Christi, Texas 78401
TEL: 361.883.1594
FAX: 361.883.1599
EMAIL: frank@weatheredlaw.com

BY /s/ Frank Weathered
Texas Bar No. 20998600

24
 Kevin F. Mickits
Texas Bar No. 14011500
John C. Heymann
Texas Bar No. 09565300
UPTON MICKITS & HEYMANN, LLP
Lincoln Center
7800 IH-10 West, Suite 740
San Antonio, Texas 78230
TEL: 210.881.3071
FAX: 210.881.3090
EMAIL: kfm@umhlaw.com
EMAIL: Jheymann@umhlaw.com

ATTORNEYS FOR APPELLANTS

CERTIFICATE OF WORD COUNT

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that
the number of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is
6775.

/s/ Frank Weathered
Frank Weathered

25
 CERTIFICATE OF SERVICE

This is to certify that on October 26, 2015, this document was electronically
filed pursuant to TEX. R. CIV. P. 21(f)(1) and a true and correct copy was served on
counsel of record listed below through the electronic filing manager if the email
address is on file with the electronic filing manager, pursuant to TEX. R. CIV.
P. 21a(a)(1). If the email address of any attorney listed below is not on file with the
electronic filing manager, a true and correct copy of this document was served
pursuant to TEX. R. CIV. P. 21a(a)(2).

/s/ Frank Weathered
Frank Weathered

Frank F. Henderson, Jr.
113 W. Santa Rosa Street
P.O. Box 366
Victoria, Texas 77902-0366
FAX: 361.573.7491
EMAIL: ffhjr@yahoo.com

26
 APPENDIX

Partial Summary Judgment, signed March 3, 2013. . . . . . . . . . . . . . . . . . . . . . . . . . 1

Partial Summary Judgment, signed October 21, 2014.. . . . . . . . . . . . . . . . . . . . . . . 2

Final Judgment, signed March 23, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

27