Palmer v. Crews

• Decision Date: 10 May 1948
• Docket Number: 36736.
• Court: Mississippi Supreme Court
• Parties: PALMER et al. v. CREWS.

35 So.2d 430

203 Miss. 806

PALMER et al. v. CREWS.

No. 36736.

Supreme Court of Mississippi

May 10, 1948

[Copyrighted Material Omitted]

Roach & Jones, of McComb Weeks, Hankerson & Surles, of Tyler, and N. W. Overstreet, Jr., of Jackson, for appellants.

Satterfield, Ewing & Hedgepeth, of Jackson, for appellee.

McGEHEE, Justice.

This suit is brought by the appellee, R. N. Crews of Fulton Missouri, who is a brother of C. C. Crews of near Tyler, Texas, deceased, and who is also one of the devisees under the last will and testament of the said C. C. Crews, seeking to have himself declared to be the owner in fee simple of an undivided one-half interest in a number of leases of oil, gas, and other minerals, and in certain minerals in place acquired by deed underlying certain described lands in Mississippi located in Pike County and several other counties therein, and to have the claim of the appellant, Lena Alma Koller Crews, widow and sole heir-at-law of the testator, as well as claims of the appellants, Martha, Mary (now Mrs. Mary Crews Palmer), Carroll, and Sara Crews, all adult children of the appellee, R. N. Crews, and the claims of James P., Robert N., and Sydney W. Palmer, minor children of the said Mrs. Mary Crews Palmer, cancelled as clouds upon the alleged fee simple title asserted by the appellee to the said undivided one-half interest in said properties.

The trial court granted the relief thus prayed for, and also held that the appellant, Lena Alma Koller Crews, as widow and sole heir-at-law of the testator, is the owner in fee simple of the remaining undivided one-half interest, by reason of the renunciation by her of the will of her husband, C. C. Crews, which was filed in the Chancery Court of Pike County, Mississippi, where the will was probated, after the same had been first probated in the State of Texas, where the estate in that state has been fully administered.

The widow's right to at least an undivided one-half interest in these Mississippi properties is not contested, she having no separate estate here, and an estate of but little value elsewhere at the time of the death of her said husband.

The controversy here is (1) whether or not the testator died intestate as to these Mississippi properties, and in which event the widow would inherit the same as an entirety in fee simple, and (2) whether or not if the same were disposed of by the will, the renunciation by the widow of the life estate allegedly sought to be devised to her under the will would cause the remainder to become thereupon accelerated so as to ripen immediately into a fee simple estate in the appellee, R. N. Crews, insofar as the undivided one-half interest not taken by her as sole heir-at-law upon such renunciation is concerned.

The testator, at the time of the execution of his will on June 4, 1943, which was wholly written in his own language and handwriting, owned considerable property both real and personal consisting of stock in a bank or banks and wholesale grocery companies, some bonds and producing oil properties, a farm where he resided, between Kilgore and Gladewater, and a house and lot at Tyler, all in the State of Texas; also producing 'oil interests' in Caddo Parish and elsewhere in the State of Louisiana, as well as farms in Pointe Coupee and St. Landry Parishes in said state; and the oil and gas leases, together with the minerals in place acquired by deed, as hereinbefore mentioned in the State of Mississippi. But at the time of the death of the testator on March 1, 1945, it does not appear whether he had disposed of any of his property in Texas or not, but his entire estate at his death was estimated to be worth at least $380,000, including the property in Mississippi which was estimated to be then worth slightly less than $15,000.

In the introductory part of his will, the testator first states that: 'I give all my estate real and personal' after all debts are first paid. In this sentence, no beneficiary or beneficiaries are named. Then the testator writes '(2) second I give and bequath to my beloved wife Lena Alma Koller Crews my home and plantation on Kilgore and Gladewater Road Gregg Co. Texas * * * and everything that is on the plantation * * *'. Also 'all of my bonds and stock, house in Tyler or elsewhere * * * and lots'.

He then provides in the next paragraph that if there be any 'heirs' the above-mentioned property (in the state of Texas) is to be divided equally among them and his said wife; otherwise, that she is to have full possession with the right to sell or otherwise dispose of the stocks, bonds, and other chattels or anything in her possession, but the plantation at her death 'I bequath to the Baptist Foundation of Texas' to be divided equally between Bailey University and some other named educational and charitable institutions.

Then follows as a part of the same paragraph in the will the following: 'In addition to the above I bequath to my wife Lena Alma Koller Crews all my royalties during her lifetime and thereafter to go to my brother, R. N. Crews, Fulton Mo. if living and if not to his children, Martha, Mary, Carroll and Sara Crews if living and if not to their descendants. I also will and bequath my interest with J. L. Booty (Crews & Booty) consisting of a farm near Garden Valley, Texas to my brother Robert (R. N. Crews) Fulton, Mo. if living if not to his children Martha, Mary, Carroll and Sara. I also bequeath all my oil interests in Caddo Parish, Trees City & elsewhere if any to my brother, Robert N. Crews, Fulton, Mo., if living and my farms in Porte Coupee Parish, Louisiana, and St. Landry Parish property in and near Melville. If he is not living I bequeath this also to his children.'

The foregoing constitutes all the words of disposition and pertinent language contained in the will which has any bearing upon the issues presented to us for decision on this appeal.

It is to be noted that the testator first devised unto his wife such land as constituted the farm where he resided in Texas, a house and lot in the City of Tyler, and other city lots owned by him in that State, but limited the devise to a life estate as to the home and plantation, thereby disposing of all of his land in Texas by the devise in her favor except the farm in Garden Valley, Texas, in which he owned an undivided interest and which he devised to his brother, R. N. Crews, of Fulton, Missouri. Also that he bequeathed to his wife all of his personal property in Texas, including his cattle, horses, and other livestock, and his stocks and bonds. That he then next wrote: 'In addition to the above I bequeath to my wife Lena Alma Koller Crews all my royalties during her lifetime and thereafter to go to my brother, R. N. Crews, Fulton, Missouri, if living, and if not to his children, Martha, Mary, Carroll and Sara Crews if living and if not to their descendants.' (Italics ours.)

The record discloses that the testator then owned producing royalties in a technical sense in the State of Texas. As to whether he owned outright some producing wells there or was only receiving the usual royalty from producing leases, the proof before us does not clearly disclose. If he was merely receiving royalties in a technical sense, that is to say as a share from production, then the italicized words in the provision last above quoted doubtless had reference only to his oil royalties in the State of Texas, since his only other 'oil interests' which were in production were oil and gas leases then producing in Caddo Parish, Louisiana, at Trees City and elsewhere in said Parish, which he devised to his said brother, R. N. Crews, of Fulton, Missouri, by a devise limited to that locality, or at least to that state; and it is reasonable to assume that the testator, being an experienced and practical oil man and president of Sabine Royalty Company at Tyler, Texas, intended to use the term 'all my royalties' in the devise to his wife and the term 'all my oil interests' in the devise to his brother in a different sense, the one denoting royalties as such from production--such as he may have owned in Texas--and the other denoting his oil interest, consisting of producing oil and gas leases, in Caddo Parish, where he may have been receiving more than the usual royalty from production. At any rate, the evidence fails to show that he owned any royalties as such either in the States of Louisiana or Mississippi.

The first and principal question to be decided, as stated in the fourth paragraph of this opinion, is whether or not the testator disposed of the leases of oil, gas and other minerals, and the minerals in place owned by him in Mississippi by any of the terms of this will; if not, then these properties were inherited under our statutes of descent and distribution by his wife in fee simple as his sole heir at law, and in which event we do not reach a consideration of the second question as to the respective rights of the appellee, R. N. Crews, as a remainderman, and his children or their descendants, as substitutionary remaindermen, in a one-half undivided interest in these Mississippi properties.

In the outset, it is to be conceded that a royalty is an interest in real estate, entitling the royalty owner to a share in the production of oil, gas, or other minerals therefrom. But the question here is whether or not the use of the term 'all my royalties' by this testator in his will would encompass the leases of oil, gas and other...