Moore v. Wardlaw

522 S.W.2d 552, 1975 Tex. App. LEXIS 2643
CourtCourt of Appeals of Texas
DecidedMarch 12, 1975
Docket12168
StatusPublished
Cited by8 cases

This text of 522 S.W.2d 552 (Moore v. Wardlaw) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Wardlaw, 522 S.W.2d 552, 1975 Tex. App. LEXIS 2643 (Tex. Ct. App. 1975).

Opinion

SHANNON, Justice.

This appeal requires the construction of the will of Blossie Wardlaw Moore, who died on March 8, 1963. The grandchildren of the testatrix, John Stevenson Wardlaw, Warren P. Wardlaw, and H. R. (Winkie) Wardlaw III, filed suit against Ceil Moore individually and as independent executrix of the estate of John I. Moore, deceased, in the district court of Tom Green County for an accounting for certain properties and money. Upon trial to the court, judgment was entered awarding some of the properties to each of the parties, from which all parties have appealed. In this opinion Blossie Wardlaw Moore’s grandchildren will usually be referred to as “plaintiffs.” Ceil Moore will be designated “defendant,” and Blossie Wardlaw Moore will usually be termed “Mrs. Moore” or “testatrix.”

A preliminary resumé of necessary facts follows. In 1911, Dr. H. R. Wardlaw married the testatrix. They had one child, a son, H. R. (Jake) Wardlaw, Jr., who in time married and had three children, the plaintiffs in this cause. After the death of Dr. Wardlaw, and in May of 1938, the testatrix married John I. Moore, a West Texas oil man. They had no children. John Moore had no close relatives except a brother who died in 1955. During his marriage to the testatrix, Mr. Moore was actively engaged in the oil and gas business, and in 1951, he and H. R. (Jake) Wardlaw purchased the Red Town Ranch in Anderson and Houston Counties which they operated as a partnership.

The testatrix died on March 8, 1963. Her will was duly probated in the probate court of Tom Green County. She was survived by her husband, her son, and her three grandchildren.

In 1965, John Moore married the defendant, Ceil Moore. He died in 1972. He and the defendant had no children. The will of John Moore, dated March 2, 1971, and probated in the probate court of Tom Green County, Texas, left substantially all of his property to his surviving widow, Ceil Moore.

*554 The will of Blossie Wardlaw Moore was dated October 12, 1961. The significant portions of that will are as follows:

I.

“I have heretofore conveyed my right, title and interest to H. R. (Jake) Wardlaw in and to that part of a tract of land containing approximately 13,000 acres situated in Tom Green County and lying North of the Arden Road.

I own a tract of land lying on the South side of the Arden Road along the Middle Concho River, approximately 1,800 acres. I hereby give, devise and bequeath a life estate to my son, H. R. Wardlaw and the remainder interest to my three grandchildren, to-wit: H. R. (Winkie) Wardlaw, III, Warren P. Wardlaw, and John Stevenson Wardlaw.

III.

“RED TOWN RANCH

My husband and I together with H. R. (Jake) Wardlaw, Jr. have acquired a ranch in Anderson and Houston Counties, Texas. Jakes owns an undivided one-half interest in said lands. My husband and I together own the other undivided one-half interest, each one-fourth (¼) interest together will a full interest in other lands adjoining. I give, devise, devise [sic] and bequeath my undivided one-fourth (¼) interest in said ranch and one-half (½) interest in the adjoining lands to the three grandchildren hereinbefore named, subject however, to the right hereby vested in my said husband to hypothecate or dispose of same during his life time, as he may see fit, the proceeds derived from the disposition of said property to be applied first to the payment of debts, if any, owing by my estate. If my husband does not during his life time dispose of said one-fourth interest, then and in that event I hereby give, devise and bequeath the same share and share alike to the three grandchildren hereinbefore named.

“OIL, GAS, MINERAL AND OTHER PROPERTIES

I hereby give, devise and bequeath to my husband my community interest in and to all the oil, gas properties, royalties, minerals, fee land, machinery, equipment and all other personal property wherever located, save and except Red Town Farm hereinbe-fore mentioned which he may sell or dispose of in any manner as to him may seem fit. So much of said property as is not disposed of by my husband during his life time, I give, devise and bequeath a life estate in one half to my son, H. R. Wardlaw, Jr.; the other one-half to my three grandchildren herein named.

I own a mineral interest in and to the H. R. Wardlaw, Jr. lands in Irion and Tom Green Counties, Texas. This mineral interest, I give, devise and bequeath to my grandson, John Stevenson Wardlaw. I hereby appoint H. R. (Jake) Wardlaw, Jr. Independent Executor without bond, and John I. Moore.”

* * *

It should be observed that H. R. Ward-law, Jr., assigned to the plaintiffs all of his interest in and to the properties of the estate of the testatrix.

John and Blossie Moore had accumulated a substantial amount of community property at the time of her death. In general, the bulk of that property was a one-half interest in the Red Town Ranch, consisting of about 6,515 acres in Houston and Anderson Counties. In addition, they owned the full interest in about 517 acres situated in Houston and Anderson Counties which was operated as part of the Red Town Ranch. The other primary category of property owned by them was a considerable number of mineral and royalty interests located in West Texas. They also owned two lots in Midland, the surface interests in 244 acres in Crockett County, the fee in forty-one acres in Crockett County, and *555 the deep rights production payment reserved by Mr. Moore in the sale of oil and gas properties to Signal Oil and Gas Company.

After the death of the testatrix, John Moore and Jake Wardlaw were appointed co-independent executors of her estate, and the operation of Red Town Ranch and the oil and gas properties continued as before her death without interruption or change. No estate books were kept in connection with Mrs. Moore’s estate, and all monies attributable to her community property were taken by John Moore and commingled and used with his own funds.

The plaintiffs’ pleading was general. In their petition the plaintiffs asserted that upon the death of the testatrix, her husband came into custody and control of most of her property, and the property continued in his custody and control until he died. Plaintiffs alleged further that John Moore conveyed his interest and their interest in the Red Town Ranch and took into his custody and control all of the proceeds of that sale consisting of about $250,000.00 in cash and a note executed by the purchaser for $522,584.18. The plaintiffs did not join in this sale, and did not receive any of the proceeds received by John Moore. The plaintiffs prayed for an accounting by the defendant of all properties which were jointly owned by John and Blossie Moore, and a showing of what disposition was made of such properties and a judgment for those amounts due them under the accounting. The plaintiffs also requested injunctive relief to preserve the status quo of the estate of John Moore.

The defendant’s trial pleading consisted of a second amended original answer and cross-action.

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Bluebook (online)
522 S.W.2d 552, 1975 Tex. App. LEXIS 2643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-wardlaw-texapp-1975.