Boothe v. Green, 534 S.W.3d 93 (Tex. App.—Corpush Christi-Edinburg 2017, pet. denied).




Testatrix devised all of her “farm lands” and “pasture lands” to her three grandchildren. The remainder of her estate was to pass to one of these grandchildren. Testatrix then sold the land and at the same time received back from the purchaser an undivided one-half interest in the property’s mineral interests. A dispute arose between the heirs of these original devisees whether the mineral interests passed under the grant of farm and pasture land or whether ademption of the original devise occurred so that the minerals belong solely the heirs of the remainder grandchild. The trial court held that ademption occurred.


The appellate court reversed holding that total ademption did not occur. Instead, ademption operated only pro tanto. The mineral interest was part of the original devise which included both surface and mineral rights of the farm and pasture land. Thus, the heirs of the three specific devisees are entitled to the mineral interest which was “leftover” from the original devise.


Moral:  A testator making a specific devise should expressly explain the testator’s intent if a division of surface and subsurface rights later occurs.