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.