Whittington v. Whittington, 07-CA-59434

• Decision Date: 31 August 1992
• Docket Number: No. 07-CA-59434,07-CA-59434
• Parties: Clyde E. WHITTINGTON v. Wilmena W. WHITTINGTON, Thomas G. Kleinpeter, Thomas G. Kleinpeter, Jr., Kathleen Kleinpeter Humphries, Judith Kleinpeter Zito, Harry William Kleinpeter, Gregory Wayne Kleinpeter and Deborah Kleinpeter Gelpi.
• Court: Mississippi Supreme Court

Page 1274

608 So.2d 1274

Clyde E. WHITTINGTON v. Wilmena W. WHITTINGTON, Thomas G. Kleinpeter, Thomas G.

Kleinpeter, Jr., Kathleen Kleinpeter Humphries, Judith

Kleinpeter Zito, Harry William Kleinpeter, Gregory Wayne

Kleinpeter and Deborah Kleinpeter Gelpi.

No. 07-CA-59434.

Supreme Court of Mississippi.

Aug. 31, 1992.

Rehearing Denied Dec. 3, 1992.

H.B. Mayes McGehee, McGehee McGehee & Torrey, Meadville, Bert H. Jones, McComb, William Timothy Jones, Jackson, for appellant.

David B. Gross, Kirkland Barfield Panter & Moore, Jackson, Bryan C. Harbour, Robison & Harbour, McComb, for appellees.

En Banc.

SULLIVAN, Justice, for the Court:

This cases involves a dispute between husband and ex-wife (and her assigns) over a 1/2 of 1/8 royalty payable out of the production from Whittington No. 12 Well in the Southwest East Fork Field of Amite County, Mississippi. Perfectly logical application of established law to the facts requires that we find the judgment of the lower court correct in all material respects.

I.

The relevant facts, which have been stipulated by both parties, are not complex. On November 26, 1984, Santa Fe Energy Company filed an application for permit to drill Whittington No. 12 Well on an 80 acre unit in the Southwest East Fork Field of Amite County, Mississippi. This 80 acre tract was acquired by T. E. and Annabelle Whittington in 1928. A permit was issued on November 27, 1984, and the Whittington No. 12 Well was completed as a producing well on February 26, 1985.

On September 12, 1959, T.E. Whittington, and his wife, Annabelle, conveyed to their son, Clyde, 20 acres of the 80 acre unit. T.E. and Annabelle reserved for themselves the mineral estate in this 20 acres "for the term of their natural lives."

On May 13, 1969, T.E. Whittington and his wife, Annabelle, conveyed to their son, Clyde Whittington, and his wife, Wilmena, 230 acres of land which included 54 acres of the 80 acre tract on which Whittington No. 12 Well was later drilled. This conveyance was by warranty deed and contained the following provisions:

Grantors reserve unto themselves and do not convey a one-half ( 1/2) royalty interest, (being 1/2 of 1/8 of the whole of any oil, gas or other minerals produced from said lands; delivery of said royalties to be made to the grantors herein in the same manner as is provided for the delivery of royalties by any present or future mineral lease affecting said lands), they to have the same for the rest of their natural lives, and at their death the rights reserved herein shall revert to the grantees.

Grantees herein have the right to grant future leases affecting said lands so long as there shall be included therein, for the benefit of the grantors herein, the royalty rights herein reserved; and the grantees further have the right to collect and retain all bonuses and rentals paid for or in connection with any future lease or accruing under the lease now outstanding.

Also on May 13, 1969, T.E. Whittington and Annabelle conveyed to Clyde and Wilmena by "Mineral Right and Royalty Transfer" (Form R-101) all of their interest "in and to all of the oil, gas and other minerals of every kind and character in, on or under" the 20 acres mentioned above. Recall that in 1959 T.E. and Annabelle conveyed the surface estate of this 20 acres to Clyde, reserving unto themselves the mineral estate. This latest transaction merely conveyed to Clyde and Wilmena the mineral estate which T.E. and Annabelle had earlier reserved for themselves.

By "Royalty Deed" (Form M-18) this same day, May 13, 1969, Clyde and Wilmena conveyed to T.E. and Annabelle a 1/2 of 1/8 royalty interest in any oil, gas or other minerals to be produced from this 20 acres. In part, this "Royalty Deed" stated:

The grantees herein [T.E. and Annabelle] are hereby given a life estate in the above described premises. At the death of the survivor of the grantees, the premises shall revert to the grantors [Clyde and Wilmena].

The royalty interests and rights herein sold, transferred and conveyed are:

(a) one-half of one-eighth ( 1/2 of 1/8) of the whole of any oil, gas or other minerals, except sulphur, on and under and to be produced from said lands; delivery of said royalties to be made to the purchaser herein in the same manner as is provided for the delivery of royalties by any present or future mineral lease affecting said lands.

This "Royalty Deed" reserved unto Clyde and Wilmena, as grantors, a bundle of rights, including the right "to grant future leases affecting said lands so long as there shall be included therein for the benefit of the grantee herein, the royalty rights herein conveyed," and the right "to collect and retain all bonuses and rentals paid."

The net result of these transactions was to make Clyde and Wilmena the owners of the surface and mineral estate of 74 of the 80 acres on which Whittington No. 12 Well was later drilled. ¹ T.E. and Annabelle retained an interest in a 1/2 of 1/8 royalty in the premises.

T.E. Whittington died on September 2, 1972. On April 9, 1974, Clyde was granted a divorce from Wilmena. On this date, he conveyed to Wilmena by quitclaim deed "all of my right, title and interest in and to" the subject property, with the following provision:

This deed of conveyance is executed subject to all prior mineral rights and royalty transfers and oil, gas and mineral leases heretofore executed by the grantor and his predecessors in title.

Clyde also reserved for himself, his heirs and assigns, a 1/4 of 1/8 royalty interest in all oil, gas and other minerals to be produced from the subject land. All executive rights were granted to Wilmena, and Clyde reserved a 1/4 interest in any cash bonus or other consideration paid for future leases.

On April 3, 1975, Wilmena executed in favor of Edward Launius an oil, gas and mineral lease covering the 80 acre tract on which the Whittington No. 12 Well was later drilled. This lease had a primary term of 10 years, and provided for a 1/8 royalty. Via subsequent assignments, Santa Fe Energy Company acquired an ownership interest in the lease and operated the producing No. 12 Well.

Wilmena, on April 25, 1977, conveyed the subject property to Thomas Kleinpeter by warranty deed, "subject to all prior mineral rights and royalty transfers and oil, gas and mineral leases heretofore executed by the grantor and her predecessors in title." Wilmena also reserved for herself an undivided 1/2 interest in the mineral estate. Kleinpeter subsequently conveyed some of his interests to members of his family.

By virtue of the "subject to" clauses in Clyde's conveyance to Wilmena, and in Wilmena's subsequent conveyance to Kleinpeter, the previously reserved royalty interest of 1/2 of 1/8 in favor of Annabelle Whittington remained undisturbed.

On July 28, 1983, Annabelle executed a "Royalty Deed" (Form M-18) conveying to Clyde the 1/2 of 1/8 royalty interest which had been acquired by her via the May, 13, 1969 transactions. This "Royalty Deed" stated in particular:

It is the intent of the grantor herein to convey and she does hereby convey to her son, Clyde E. Whittington, that certain life estate royalty interest reserved by her in a Warranty Deed dated May 13, 1969, recorded in Book 152 and page 127 and acquired in that certain Royalty Deed dated May 13, 1969, recorded in Book 43, page 85, of the records of Amite County, Mississippi, reference to which is hereby made.

As previously mentioned, the Whittington No. 12 Well was completed as a producing well on February 26, 1985. Annabelle Whittington died on December 4, 1986. Her death terminated the 1/2 of 1/8 royalty interest which she and her husband acquired in 1969, and which she subsequently conveyed inter vivos to Clyde on July 28, 1983.

Following production, Santa Fe suspended payment of the 1/2 of 1/8 royalty. In response, Clyde Whittington, on January 20, 1987, sought judgment from the Chancery Court of Amite County declaring his rights vis-a-vis the interest he had acquired from his mother in the 1/16 ( 1/2 of 1/8) royalty. Importantly, Clyde agrees that he, like Annabelle before, is a life tenant as to the 1/2 of 1/8 royalty in question. His claim, variously stated, is essentially that he is not subject to impeachment for waste, and is entitled to receive the whole of all payments attributable to this royalty from the date of first production on February 26, 1985, until Annabelle's death on December 4, 1986. ²

The chancellor held otherwise. Construing the instruments of conveyance, the chancellor found that T.E. and Annabelle (and subsequently Clyde) held a life estate in the 1/2 of 1/8 royalty attributable to the 80 acre tract (less and except 6 acres). Finding no expressed intent to the contrary, the chancellor held consistent with the common law rule that the life tenant (Clyde) was subject to impeachment for waste, and thus entitled only to interest or income from the royalty corpus, and not the corpus itself. By virtue of the quitclaim deed incident to divorce, Wilmena was vested with the future interests (here, a remainder and a reversion), and thus was entitled to the principal or corpus.

II.

In construing instruments of conveyance, "it is necessary under well recognized rules of construction that they be considered as a whole, and the intent of the parties be gathered from the plain and unambiguous language contained therein." Rogers v. Morgan, 250 Miss. 9, 21, 164 So.2d 480, 484 (1964). "[T]he meaning of the language and intention of the parties to be determined by the Court is to be found in the language used in the instrument." Id.; Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (1990); see also Simmons v. Bank of Mississippi, 593 So.2d 40, 42-43 (Miss.1992) [in construing written instruments, "our concern is not nearly so much what the parties may have intended as it is what they said, for the words employed are by far the best resource for ascertaining intent and assigning meaning with fairness...