Citations
- 284 S.W.2d 215
Full opinion text
BOYD, Justice.
This suit was filed by Ova Lee Irons, joined by her husband, Vern T. Irons, against Fort Worth Sand & Gravel Company, a corporation, Thomas Gravel Company, a corporation, and M. G. Reves and E. J. Reves, independent executors of the estate of G. P. Reves, deceased, to recover damages for the removal and conversion of sand and gravel from 168 acres of land, and for an accounting. ■
The land involved was acquired by G. P. Reves during his marriage to Adeen Deason Reves. She died in 1906 without leaving a will. There were born to that union five children, namely, M. G. Reves, Elmo Reves, Maude Reves Davis, and Vera Reves Hudgins, all parties to this suit, and Wylie Edward Reves, who died in 1942 without leaving a will, and who left as his survivors a.son, Wylie Preston Reves, and his widow, Edna Reves, who is now the wife of E. F. Miller. After the death of his wife Adeen, G. P. Reves married Nora Austin, and during this marriage four children were born, namely, E. J. Reves, Edna Reves Anderson, Ova Lee Irons, and Alton P. Reves. G. P. Reves died May 9, 1949, leaving a will which appointed M. G. Reves and E. J. Reves independent executors. The will devised specific tracts of land to each of his eight surviving children and to his grandson, Wylie Preston Reves, said tracts constituting all the real property which the testator owned at the time of his death. A subsequent clause of the will, clause 12, is as follows: “It is my intention, will and desire that all gas, oil and mineral rights, also including the production of sand, gravel and ore of all kinds, inure to the benefit of all my children and my said grandchild hereinabove mentioned alike, and that the profits from same be divided equally among them share and share alike, and such oil, gas, sand, gravel and mineral rights are hereby reserved in them share and share alike, and in order to make an equitable settlement with the devisee or devisees on whose land or under which the same is herein-above divided, it is my will and desire that •the one or ones so damaged, be paid a fair and reasonable price for such lands •out of the royalties therefrom, the price and damages thereof to be determined by the Executors hereinafter named.”
On May 2, 1950, M. G. Reves and E. J. Reves, as independent executors of the •estate of G. P. Reves, executed a sand and gravel lease to Fort Worth Sand & Gravel Company covering the 168 acres involved in this suit. The lease was transferred to Thomas Gravel Company. The royalty was twenty-five cents per cubic yard. On a former appeal, this Court reached the conclusion that', the executors were without power to bind Mrs. Irons by such a lease. Irons v. Fort Worth Sand & Gravel Co., Tex.Civ.App., 260 S.W.2d 629, writ refused, n. r. e.
While the instant suit was pending, the two gravel corporations were dissolved, and T. E. Popplewell, J. J. Randol, and L. W. Dunn, the former stockholders in both •corporations, and Texas Industries, Incorporated, the ultimate transferee of the assets of both corporations, were made •defendants.
The gravel companies, Texas Industries, T. E. Popplewell, J. J. Randol, and L. W. Dunn filed a general denial and certain affirmative defenses, and in the alternative, brought a cross-action against the eight children of G. P. Reves, including Ova Lee Irons, and against Wylie Preston Reves, his grandson, Edna Reves Miller, the mother of Wylie Preston Reves, and. M. G. Reves as the guardian of the estate •of Wylie Preston Reves. Those defendants alleged that they and the eight children and grandson of G. P. Reves, and the mother of said grandson, Edna Reves Miller, own all the sand and gravel in the 168 acre tract in undivided interests, and sought a partition in kind of the sand and gravel by •dividing the surface into shares so that the share of Ova Lee Irons and the share of Wylie Preston Reves and his mother, Edna Reves Miller, could be set aside to each •of them, and the shares of all the others, which should include the sand and gravel ■which had been removed, be set aside to them without partition as between themselves.
The executors pleaded that Ova Lee Irons had ratified and confirmed the lease and that she was estopped to deny the validity of same, and alleged in the alternative that the sand and gravel should be partitioned in kind.
M. G. Reves, E. J. Reves, Edna Reves Anderson and husband, Maude Reves Davis and husband, Vera Reves Hudgins and husband, and Elmo Reves alleged that Ova Lee Irons was bound by the terms of the lease, and in the alternativé'they sought a partition in kind of the sand and gravel.
Wylie Preston Reves and Edna Reves Miller answered the cross-action and alleged that the sand and gravel were not susceptible of an equitable partition in kind, and asked recovery from the defendants for their damages for the removal of sand and gravel, and for an accounting.
Alton P. Reves, in his answer to th