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CATHERINE CLARK MANSON, MARY CLARK HOLLINS AND GRACE E. CLARK v. HATTIE DAY MAGEE

NOVEMBER 23, 1988

CATHERINE CLARK MANSON, MARY CLARK HOLLINS AND GRACE E. CLARK
v.
HATTIE DAY MAGEE, ET AL.



BEFORE DAN LEE, P.J., ANDERSON AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

This is an appeal from a judgment of the Chancery Court of Pike County sustaining a motion of appellees for summary judgment.

This lawsuit involves interpretation of an oil, gas and mineral reservation in a warranty deed and no controversy about the surface.

 Prior to his death on January 19, 1948, Dr. Willis F. Cotten and his wife, Christine Gardner Cotten, were the owners as tenants in common of the fee simple absolute title to 461.5 acres of property in Pike County. Doctor Cotten died testate and devised to Otis Cotten, Roger C. Cotten, Katherine Benjamin, and Francis A. Herrington each a 1/8th interest of all oil, gas and other minerals that he owned in said property. The will of Dr. Cotten specifically stated:

 The above bequests are subject to the right of my wife, Mrs. Christine Cotten, to lease and re-lease the above lands for mining purposes and to retain the lease money and delay rentals as and for her own.

 The devise to the four parties by Dr. Cotten, subject to the rights of Christine Cotten, is designated "the burden" by appellants and appellees. Dr. Cotten devised the remainder of his property to his wife, Christine Gardner Cotten and the ownership of the oil, gas and minerals at Dr. Cotten's death was as follows:

 OWNER MINERAL INTEREST Christine Gardner 42/56ths

 Otis Cotten ) Roger C. Cotten ) Total 14/56ths Katherine Benjamin ) Francis A. Herrington)

 On September 7, 1969, Christine Gardner Cotten, Dr. Cotten's wife, died testate leaving all of her property equally to eight people; six sisters, one brother and her mother, Demaris Day Gardner (Mrs. Cotten Heirs). Her mother, Demaris Day Gardner, died intestate and, therefore, all of Demaris Day Gardner's interest in the subject property passed to the other seven devisees. Title to the minerals of the subject property immediately after the death of Christine Gardner Cotten and her mother, Demaris Day Gardner as to Mrs. Cotten's 3/4 interest was as follows:

 OWNER MINERAL INTEREST

 Prentis William Gardner 6/56ths Pearl Vivian Cullom 6/56ths Ruby Ione MacIntosh 6/56ths Maude Avis Gordon 6/56ths Grace Truman Smith 6/56ths Ruth G. Patterson 6/56ths Hattie Day Magee 6/56ths

 On December 26, 1970, "the Mrs. Cotten Heirs" conveyed by separate general warranty deeds the subject property to Dr. William B. Clark. Those conveyances contained the following provision, the interpretation of which is what this lawsuit is primarily about:

 Grantors except and reserve herefrom one-half of whatever oil, gas and other mineral interest is

 owned by them in the described land at the time of this conveyance, conveying to the grantee one-half of said interest. (Emphasis added)

 By warranty deed dated March 22 or 27, 1972, Dr. Clark conveyed the tract to George T. Flynt and Donna R. Flynt. Dr. Clark's deed, however, provided:

 There is reserved from this conveyance an undivided 3/4 interest in and to the whole of the oil, gas and minerals, lying and being situated in, on and under the above described property; and there is conveyed in this instrument to the Grantees only a 1/4th undivided interest in and to the oil, gas and minerals, lying and being situated in, on and under the above described property, together with the right of ingress and egress to remove, store, mine and transport the same.

 Dr. Clark died on March 8, 1975. The appellants, Catherine C. Manson, Grace E. Clark, and Mary Clark Hollins (The Clark Heirs) are the daughters of Dr. Clark and inherited Dr. ...


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