Moore v. Vines

• Decision Date: 11 December 1970
• Docket Number: No. 17515,17515
• Citation: 461 S.W.2d 642
• Parties: Hoyal B. MOORE et al., Appellants, v. Troy C. VINES et al., Appellees.
• Court: Texas Court of Appeals

Page 642

461 S.W.2d 642

Hoyal B. MOORE et al., Appellants, v. Troy C. VINES et al., Appellees.

No. 17515.

Court of Civil Appeals of Texas,

Dallas.

Dec. 11, 1970.

Rehearing Denied Dec. 31, 1970.

Fred S. Harless, Harless, Fagg & Cravens, Dallas, for appellants.

Leo J. Hoffman, Strasburger, Price, Kelton, Martin & Unis, Dallas, Gordon R. Wynne, Wynne & Wynne, Wills Point, for appellees.

DIXON, Chief Justice.

This suit calls for the construction of a joint will executed by Ruby Neely Vines and husband Troy C. Vines.

The will in its entirety is as follows:

'State of Texas

County of Van Zandt

Know all men by these presents that we, Troy Vines and wife Ruby Vines, residents of Van Zandt County, Texas, above the age of 21 and of sound mind, do hereby make this our last will, revoking all other wills, if any, at any time heretofore made by us or either of us.

Upon the death of either of us, it is our will that all the property owned by both of us, both real and personal and both separate and community go to the survivor to be used by such survivor during his or her life time.

The survivor is hereby appointed independent executor of this will and is directed to act without bond.

Upon the death of both of us, the separate real estate owned by Troy Vines shall go to L. R. Vines for his life time, and the separate real estate owned by Ruby Vines shall go to her heirs.

In case L. R. Vines shall die before Troy Vines does then Troy Vines Real estate at the deth (sic) of the survivor shall go to Harold David Moore, grandson of Ruby Vines. The said Harold David Moore to have said land at death of L. R. Vines.

Witness our hands at Grand Saline, Texas this the 13th day of August 1959 in the presence of the undersigned witnesses who are signing this will at our request.

/s/ Troy C. Vines

Troy Vines

/s/ Ruby N. Vines

Ruby Vines

/s/ Nancy S. Mayne

Witness

/s/ H. E. Henderson

Witness'

Appellants Hoyal B. Moore and Harold David Moore, son and grandson respectively of Ruby Vines by a previous marriage brought the suit as plaintiffs. Also brought into the suit as involuntary plaintiffs were Vida Aleen Moore Handley, daughter of Ruby Moore by the previous marriage, and Vida's husband, Charles Jerry Handley, joined pro forma.

The defendants in the trial court were appellees Troy C. Vines, individually and as independent executor of the estate of his deceased wife, Ruby Vines, Pan American Petroleum Corporation, Service Pipe Line Company, Loyd Russell Vines, Harlie L. Clark, Elise M. Young and Stanton L. Young--the last four defendants being assignees through assignments originally made by Troy Vines.

In their petition appellants allege that the will of Ruby and Troy C. Vines is not only a joint will but that it is also a mutual, contractual will which is binding on Troy C. Vines and which he cannot now revoke. Further, they allege that Troy has elected to take under the will so is now bound by its terms. They also seek recovery from Pan American Petroleum Corporation and Service Pipe Line Company for royalties and bonuses paid to Troy C. Vines since the death of Ruby Vines. Their contention is that the payment of royalties to Troy C. Vines since the death of Ruby was wrongful since he had only a life estate in the properties, and the royalties, etc. are part of the corpus of the estate.

The controversy involves the rights of the parties as to two tracts of land, which we shall hereinafter designate as Tract 'A' and Tract 'B'.

In the prayer to their pleading appellants specifically asked for judgment as follows:

'1. Declaring that the only interest of TROY C. VINES, Defendant, in Tracts A and B is a life estate;

'2. Declaring that HOYAL B. MOORE, Plaintiff, is the owner of a one-half (1/2) undivided remainder interest in Tract A (the other one-half undivided remainder interest being owned by VIDA ALEEN MOORE HANDLEY Involuntary Plaintiff);

'3. Declaring that HAROLD DAVID MOORE, Plaintiff, is the owner of the entire remainder interest in Tract B, possession of said Tract being subject only to TROY C. VINES' life estate and a contingent life estate interest in LOYD RUSSELL VINES, Defendants;

'4. Declaring that 1/2 the royalties from oil, gas and other minerals produced from Tract A is the property of HOYAL B. MOORE, Plaintiff, as owner of 1/2 the remainder;

'5. Declaring that all oil, gas and other minerals produced from Tract B is the property of HAROLD DAVID MOORE, Plaintiff;

'6. Declaring that an accounting between Plaintiffs HOYAL B. MOORE and HAROLD DAVID MOORE and the Defendants be had; and

'7. That Plaintiffs HOYAL B. MOORE and HAROLD DAVID MOORE recover judgment of and from the Defendants for the amounts found to be due under said accounting by Defendants to Plaintiffs, interest thereon, for costs of suit, and for such other and further relief, special and general, in law and in equity, to which they may be justly entitled.'

Appellee Troy C. Vines filed an answer consisting of a general denial, specific denials, and allegations that the making of a joint will 'was simply an afterthought of the attorney who prepared the will and neither of the parties had any intention * * * in any way or manner to dispose of or bind the property of the other party.'

Vida Aleen Moore Handley, the involuntary plaintiff, joined by her husband Charles Jerry Handley, filed a written response in which she vigorously attacks the plaintiffs and their cause of action and defends her stepfather, Troy C. Vines, and his claims. Vida Aleen Moore Handley apparently was not present at the trial--at least she did not testify.

Pursuant to Article 3716 (Dead Man's Statute), Vernon's Ann.Civ.St ., Troy Vines was not permitted to testify as to transactions with Ruby Vines during her lifetime.

The court rendered a judgment denying recovery for appellants except that Hoyal B. Moore was adjudged to be the owner of undivided one-half interest in the remainder in Tract 'A', subject however to the life estate of Troy C. Vines.

The trial court filed findings of fact and conclusions of law among which were the following:

Findings

'7. On the 18th day of October, 1959, Ruby Vines died in Van Zandt County, Texas, testate and her last will and testament was admitted to probate on November 23, 1959, and Troy Vines was appointed and qualified as independent executor of her estate as shown by Probate Proceedings 6804 in the County Court of Van Zandt County, Texas. The estate of Ruby Vines, the subject of such probate proceedings, has remained open, and Troy Vines has served continuously as independent executor thereof, up to the time of the trial of this cause.

'9. That the last will and testament of Ruby Vines was a joint will with Troy Vines, but was not a mutual or reciprocal will executed pursuant to any kind of contract or character of agreement, but, wholly to the contrary, was the separate will and separate disposition of each of the parties thereto with no intent to dispose of the estate of the other. Such will did not constitute a comprehensive plan to dispose of the entire estate of the parties.

'10. I find no facts in the evidence that would remotely indicate a prior agreement between Troy Vines and Ruby Vines, or agreement in or in connection with the will, as to a mutual or contractual disposition of their separate or community estates. I further find that under the testimony of plaintiffs' witness, the scrivener of the will, that there was no contract or prior agreement between Troy Vines and Ruby Vines as to a joint and mutual disposition of their properties.

'11. I further find that in probating the will and taking interests thereunder, Troy Vines was not put to any election and his acts did not amount to an election, specially because Ruby Vines did not purport in the will to disclose of any property or interest of Troy Vines.

'15. On March 26, 1951, Troy C. and Ruby Vines executed and delivered to R. I. Boyd an oil, gas and mineral lease covering all of Tracts 'A' and 'B', and on June 5, 1951, the lease was assigned to Cities Service Oil Company.

'16. That Cities Service Oil Company each and every year for the full ten-year primary term of the oil, gas and mineral lease duly and timely paid the delay rentals, both before and after the death of Ruby Vines, and thereby maintained said lease in force as to all of Tracts 'A' and 'B' from March 26, 1951, to March 26, 1961.

'17. That at the time of the death of Ruby Vines in 1959, the said Cities Service Oil Company lease was in full force and effect as to all of Tracts 'A' and 'B'.

'18. That on April 3, 1961, within one week from expiration of the previous lease, Troy C. Vines, as a single man, executed and delivered to Pan American Petroleum Corporation an oil, gas and mineral lease covering Tract 'B' described in plaintiffs' petition, and Pan American Petroleum Corporation paid Troy C. Vines a valuable consideration for such lease at the rate of $75.00 per acre. At the time of the delivery of said lease to, and the payment of said consideration by, Pan American Petroleum Corporation, it had no notice or knowledge, either actual or constructive, of the probate or existence of Troy and Ruby Vines joint will, or of any claim by the plaintiffs to any interest in Tract 'B' described in plaintiffs' petition.

'19. That on June 1, 1961, Troy C. Vines, individually and as independent executor, the plaintiff, Hoyal B. Moore, and the involuntary plaintiff, Vida Aileen Handley, joined therein by her husband, Charles Jerry Handley, for a valuable consideration, executed and delivered an oil, gas and mineral lease to Pan American Petroleum Corporation covering Tract 'A' described in plaintiffs' petition.

'20. That on April 25, 1962, Troy C. Vines executed and delivered to Pan American Petroleum Corporation a ratification and rental division order covering Tract 'A'. Said corporation, on September 14, 1962, executed and then recorded its declaration of unitization covering its Parker 'B' gas unit, which...