Ferguson v. Morgan

70 So. 2d 866, 220 Miss. 266, 56 Adv. S. 10, 3 Oil & Gas Rep. 411, 1954 Miss. LEXIS 435

• Court: Mississippi Supreme Court
• Decided: March 8, 1954
• Docket: No. 39085
• Status: Published

Opinions

Boberds, P. J.

Mrs. Pearl W. Morgan departed this life April 12,1952. She left a last will and testament dated March 21, 1951. At the time she executed this will and at the time of her demise she was the owner of a one-half undivided interest in what is called “the Whetstone Estate lands,” comprising approximately 738 acres, and specifically described in the will. She devised her interest in said lands to her four grandchildren, who were the children of her deceased son, Bay Morgan, and to her living son, William Meade Morgan. That devise is in these words:

“I devise to the children of my deceased son, Bay Morgan, namely, Bay, Virginia, John Marvin and Patricia, all of my right, title and interest in and to the lands of the T. M. Whetstone Estate of which I may die seized and possessed, except an undivided one-fifth (1/5) mineral rights and interest in and under said land, which I devise to my son, William Meade Morgan.”

Appellants are the owners of the interest in said lands devised to William Meade Morgan. They contend that this is a one-fifth interest in the minerals and mineral rights in said tract. Appellees own the interest of the other devisees. They contend that the interest devised to William Meade Morgan was a one-fifth of a one-half undivided interest in the minerals and mineral rights in said lands. In other words, appellants say they are the owners of a one-fifth mineral interest and appellees contend appellants are the owners only of a one-tenth interest in such minerals. The chancellor decided for appellees. That is the question presented to us on this appeal.

It will be noted the will devises to the four children of Ray Morgan, deceased, all interest of the testatrix in said lands, “except an undivided one-fifth (1/5) mineral rights and interest in and under said land, which I devise to my son, William Meade Morgan. ’ ’ The one-fifth interest, by the express words of this provision, applies to “said lands.” The lands are the Whetstone estate lands —the entire tract. Testatrix did not devise to William Meade Morgan a one-fifth interest in her undivided one-half interest. The intention of the testatrix is the guiding star. Simpson v. Watkins, 162 Miss. 242, 139 So. 400; Low v. First National Bank, 162 Miss. 53, 138 So. 586; Keeley v. Adams, 149 Miss. 201, 115 So. 344; Welch v. Welch, 147 Miss. 728, 113 So. 197; National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649; Howell v. Ott, 182 Miss. 252, 180 So. 52; Cross v. O’Cavanagh, 198 Miss. 137, 21 So. 2d 473; Yeates v. Box, 198 Miss. 602, 22 So. 2d 411; Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195; Lanham v. Howell, 210 Miss. 383, 49 So. 2d 701, Cert. denied 342 U. S. 834; In re Raworth’s Estate, 211 Miss. 780, 52 So. 2d 661. But the foregoing cases also aim ounce these principles:

First, that the intention of the testatrix must he gathered from the will itself, considered in the light surrounding the testator.

Second, the question is not what testator wished to say, or intended to say, but what he did say.

Third, it is not the intention the testator had but failed to express, but the intention he did express.

Fourth, the question is not what he wished but what he said.

Fifth, this Court has no right, or power, to make change or enlarge upon a will for decedent. In other words, as stated in National Bank of Greece v. Savarika, supra, “Wills must be construed, and the intention of the testator found, not in what he intended to say, but what he did say. In his expression, and not in his silence, we seek his meaning, and when we exceed this rule, we make the will, and direct the way the bounty should be allied.” Many similar quotations, announcing the foregoing principles, might be set out.

To hold as appellees contend we would have to change the phrase “except an undivided one-fifth (1/5) mineral rights and interest in and under said land * * and add to it, “in my one-half undivided interest in said land.” It may be the testatrix intended to do that but she did not do it. She excepted, not a one-fifth of her one-half undivided interest, but she excepted and devised to William Meade Morgan, an undivided one-fifth interest “in and under said land,” which land was the Whetstone Estate tract of land.

Appellees urge that the interest involved is in the form of an exception to the estate granted, and that the estate granted is a one-half undivided interest in the tract of land, and that, therefore, that which is excepted from the grant and conveyed to William Meade Morgan is a one-fifth of a one-half, or a one-tenth. Richardson v. Marqueze, 59 Miss. 80; 16 Am. Jur. p. 607, Sec. 298. The contention carries considerable force. However, the devise does not say the exception is to be taken from the estate granted. It excepts a one-fifth undivided mineral interest “in and under said land,” and expressly conveys that interest to William Meade Morgan. Testatrix owned in the entire tract more than the one-fifth excepted and conveyed to William Meade Morgan.

Reversed and decree here vesting in appellants, in the proportion claimed by them, a one-fifth undivided mineral interest in the entire tract of land involved herein.

Reversed and decree here.

Hall, Lee, Holmes and Ethridge, JJ., concur.