Co-author Rusty Tucker

Confirming the obvious, in In re Etheridge a Texas court concluded that “personal effects,” in a last will and testament did not include mineral royalties. Let’s investigate how the case got this far.

The will

Mildred Etheridge executed a one-page typewritten will without consulting an attorney. The will said:

‘I, … for the purpose of the distribution of my entire estate, real, personal and mixed, …  do … declare this to be my Last Will and Testament, …

I hereby appoint and name Fred D. Davis, Jr. as Independent Executor … . I give Fred D. Davis, Jr. all my personal effects to clear my estate after my death. …

I bequeath my one half ownership in my residence … to Patricia Petosky.”

Mildred’s inventory described the money in her checking account and listed miscellaneous property owned at the time of her death, such as furniture and a television. Mildred also owned mineral royalties that were not mentioned in the will. Enterprise Crude Oil began paying royalties to the estate. Executor and beneficiary Davis opened a bank account for the funds and then transferred the funds to his personal account, then spending the funds on items unrelated to Mildred’s estate.

Mildred’s heirs caught wind of royalty payments to Mildred’s estate. A letter to Davis requesting an accounting went unanswered. Asserting that Mildred’s royalty interests did not pass under her will, her heirs sought to have Davis removed as independent executor.

Davis’s contentions – rejected

  • “Personal effects” refers to all property of any kind owned by Mildred, other than the residence.
  • Construction of the term “personal effects” to not include mineral rights contradicted the prior clause of the will providing it was executed “for the purpose of the distribution of [Mildred’s] entire estate, real, personal and mixed.”
  • A liberal interpretation of “personal effects” was appropriate because Mildred was not an attorney and the will was not drafted by an attorney.

The rules (among others) for construing wills

  • Courts “may not redraft the will, vary or add provisions” under the guise of construing the will’s language to reflect some presumed intention of the testator.
  • Terms are to be given their plain, ordinary, and generally accepted meanings unless the instrument itself shows that they were used in a technical or different sense.
  • Where practicable, a latter clause in a will must be deemed to affirm, not contradict, an earlier clause.

The will was not ambiguous; therefore, Mildred’s intent was to be found solely within the four corners of the will.

What are personal effects?

“’Personal effects’ has customarily been defined narrowly as a subset of personal property, generally referring to “articles bearing intimate relation or association to the person of the testator, …”

Mildred’s will did not clearly demonstrate an intent to use “personal effects” contrary to its well-settled legal usage.  Mineral royalties do not fall within the typical definition of personal effects. Based on the will’s language, it did not appear that Mildred intended ‘personal effects’ to include real property. Despite the first paragraph stating that the will was to distribute her entire estate, Mildred specifically left Davis her personal effects only.

You probably knew this

Mineral interests are interests in real property until they are severed or extracted from the land, thereby becoming personal property. Nothing in the record indicated the minerals in question had been extracted or severed prior to her death. The mineral interests were real property when her will took effect and, thus, were not personal effects left to Davis.

Mildred needed a residuary clause

Because there was no residuary clause the will did not dispose of all of Mildred’s property.  When a “testatrix intentionally or unintentionally fails to provide for the complete disposition of her property, courts must hold that the testatrix died intestate as to the omitted property.”

The holding

Mildred died intestate as to property other than her personal effects. The royalties were not her personal effects.  Davis misapplied the estate’s property entrusted to his care.

A musical interlude

Do you yodel in the shower? Me neither. Nevertheless, yodeling is a time-honored musical tradition in many places.

Amongst the cows

Amongst the mules

Amongst the denizens of the French Quarter