Hysaw v. Dawkins

Ethel Hysaw (Ethel) owned three tracts of land subject to oil and gas leases. Ethel’s will, which was executed in 1947, devised to each of her three children a portion of the tracts and a royalty interest. The will stated: “each of my children shall have and hold an undivided one-third (1/3) of an undivided one-eighth (1/8) of all oil, gas or other mineral in or under” the tracts of land. The will also stated that if Ethel sold any of her royalty interests prior to her death, her children would “each receive one-third of the remainder of the unsold royalty.” The successors in interest to Inez Foote (Inez successors) (defendants), one of Ethel’s children, negotiated a one-fifth royalty on the tract of land that Inez had acquired through the will. The Inez successors claimed that the will devised floating royalties, initially equally to one-twenty-fourth, but subject to change if they negotiated a different royalty in the future. The Inez successors sought one-third of the one-fifth royalty negotiated on the Inez tract. The successors in interest to Dorothy Burris and Howard Hysaw (Dorothy/Howard successors) (plaintiffs), Ethel’s other children, argued that Ethel intended that the children’s royalty shares be equally divided from the total royalty from all three tracts, and thus the will devised one-third fixed royalties to each child. The Dorothy/Howard successors claimed that the Inez successors were entitled to only one-third of the total royalties collected on all three tracts, combined. The trial court granted the Dorothy/Howard successors’ motion for summary judgment. The trial court found that by “one-eighth,” Ethel was using industry shorthand for the entire royalty, because at the time of the will’s execution, all oil and gas royalties were one-eighth. The court of appeals reversed. The Dorothy/Howard successors appealed.