678 Boothe v. Green, 534 S.W.3d 93 (Tex. App.—Corpus Christi 2017, pet. filed)
Tuesday, August 7th, 2018
The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
Boothe v. Green, 534 S.W.3d 93 (Tex. App.—Corpus Christi 2017, pet. filed), held that a devise of real property was adeemed only in part because the testatrix still possessed a part of the mineral estate interest at the time of her death. Testatrix owned an undivided fee simple interest in 1,448.5 acres. In a 1924 will, Testatrix bequeathed to her three grandchildren (J. F., Mary Lee, and Jessie), equally, any farm lands and pasture lands owned by Testatrix at the time of her death. The residue of the estate passed to Jessie. In 1927, Testatrix sold her interest in the land to Buyer, and Buyer immediately reconveyed 1/6 of the minerals to Testatrix, which Testatrix still owned at the time of her death. The parties aligned as successors-in-interest to J. F., Mary Lee, and Jessie. Jessie claimed all of the mineral estate; J. F. and Mary Lee claimed the mineral estate passed equally to the three grandchildren. The issue was whether the devise was adeemed in its entirety or adeemed pro tanto, when Testatrix sold her interest after executing the will.
When a testatrix sells realty devised in a will prior to her death, the beneficiaries of the devise are not entitled to the proceeds; instead the proceeds pass under the residuary clause. The devise is “adeemed.” “[I]t is also well settled that the doctrine of “ademption by [alienation] operates pro tanto only, so that where but part of the legacy has been alienated, the remainder passes to the legatees.”
The court in Boothe explained that Testatrix had an interest in the mineral estate before and after the sale of the land because the buyer re-conveyed the mineral interest back to her, which she still possessed at the time of her death. The court concluded that only the portion of the bequest that was sold was adeemed, and the resulting ademption operated pro tanto. Therefore, the remaining undivided mineral interest passed equally between the three grandchildren. It was undisputed that the 1,448.5 acres of land constituted pastoral and farm land. The opinion does not discuss whether the “acreage property, to-wit, farmlands and pasture land” (as described in the will), includes or does not include the mineral estate, other than to recite that Testatrix’s “interest in the mineral estate belonged to, or was part of, the respective land.”
The significance of the case is the holding that a severance of the mineral estate and the surface estate after a will is executed does not result in a complete ademption, but an ademption pro tanto.