Hysaw v. Dawkins, 483 S.W.3d 1 (Tex. 2016).


Interpretation and Construction



Testatrix devised surface rights to tracts of land of different acreage to each of her three children. The children also received the mineral rights but Testatrix subjected them to royalty interests. After all the children died, the grandchildren fought over one of the children’s royalty interest described as “an undivided one-third (1/3) of an undivided one-eighth (1/8) of all oil, gas or other minerals in or under or that may be produced from any [of the tracts].” One group of descendants argued that the will granted a fractional royalty to each child (1/24 fixed royalty each) and another group argued that the will required the children to share all royalties equally (1/3 floating royalty each). In other words, should “double fractions [] be multiplied and the royalty interest fixed without regard to the royalty negotiated in a future mineral lease (fractional royalty) or whether 1/8 was intended as a synonym for the landowner’s royalty, meaning the interest conveyed varies depending on the royalty actually obtained in a future mineral lease (fraction of royalty).” Was Testatrix trying to determine whether the fraction of 1/8th really meant 1/8th, or if it meant whatever royalty had been negotiated? The trial court held that the royalties were to be shared equally.


In Dawkins v. Hysaw, 450 S.W.3d 147 (Tex. App.—San Antonio 2014), the San Antonio appellate court reversed holding that the will was unambiguous in giving one child a surface and mineral estate subject to a fixed fraction royalty to each of the other two children. The court engaged in an extensive discussion of the difference between fractional royalties (constant or fixed fraction of production) and fraction of royalty interests (floating fraction of whatever royalty interest is reserved in the lease). The court determined that different children received different types of interests thus rejecting the argument that Testatrix actually intended for all children to share all royalties equally. The court explained that even if she may have intended the children to share equally, the court is bound by the unambiguous words of her devises. An appeal to the Supreme Court of Texas followed.


The Supreme Court of Texas reversed. The court focused on ascertaining Testatrix’s intent from the four corners of the instrument “by a careful and detailed examination of the document in its entirety, rather than by application of mechanical rules of construction that offer certainty at the expense of effectuating intent.” Using this holistic approach, the court then determined that Testatrix’s will demonstrated her intent for each of her children to receive equal royalty interests.


Moral:  Wills granting interests in oil and gas properties need to be carefully drafted to assure that the interests being conveyed comport with the testator’s intent. Prudent practice is to consult with an oil and gas expert when phrasing the terms of the grant. And, when describing a specific gift, make sure the drafter describes what the testator really means, and not what is assumed will exist in the future.