In re Estate of Slaughter, 305 S.W.3d 804 (Tex. App.—Texarkana 2010, no pet.).
Testator died in 1965 and his 1955 holographic will was duly admitted
to probate. A dispute arose whether this will either (1) devised all his
mineral rights to his three sons to be held as tenants in common, or (2)
devised only the royalty rights to his three as tenants in common with
the remainder of the mineral estate passing to the sons in equal, but
divided, interests. The trial court determined that the will was
patently ambiguous and determined that Testator mean to devise all
mineral interests to his sons as tenants in common. The appellate court
reversed.
The court began by examining Testator’s will which devised each son 158
acres of land and also provided that the three sons were to “share and
share alike production royalty and unproduction royalty.” The court
explained that Testator’s language was unambiguous in that it
transferred 158 acres to each son and reserved the royalty interest from
the entire tract to be held by the sons as tenants in common, each
owning an undivided one-third of the royalty interest. The court
recognized that the term “unproduction royalty” may be an “unusual
expression,” but that it was nonetheless unambiguous in that it means
“to cease production or not to produce oil and gas,” or, in other words,
what is commonly known as shut-in royalties (royalties paid to keep the
lease in force when a well capable of producing oil and gas is not
utilized because there is no market for the oil and gas).
Moral: Wills dealing with mineral interests should be drafted clearly
using industry standard language.