Drach v. Ely , 10 Kan. App. 2d 149 ( 1985 )

Brookens, J.,

concurring: This case, once again, points out the necessity for scriveners of wills and of final decrees in probate cases to write with clarity and specificity.

The cardinal rule in the construction of a will is that the intention of the testator must be ascertained, and the will so construed to carry out that intention. In re Estate of Berryman, 226 Kan. 116, 595 P.2d 1120 (1979); In re Estate of Wernet, 226 Kan. 97, 596 P.2d 137 (1979); Giese v. Smith, 195 Kan. 607, 408 P.2d 687 (1965); In re Estate of Weidman, 181 Kan. 718, 314 P.2d 327 (1957); In re Estate of Dees, 180 Kan. 772, 308 P.2d 90 (1957).

A careful study of the subject will, it seems to me, compels the conclusion the testator intended to give each of his six children a specific quarter-section of land, together with the sole right to lease that specific quarter-section of land for oil and gas, receive bonus payments, receive lease rentals, receive delay rentals, control access to the specific land, and control the right to drill on the specific land. But, if oil or gas were produced, brought to the surface and severed from the land, then all of the six children would share equally in that windfall.

Otherwise, why would the testator, in paragraph 2, state: “It is my will and intention that the mineral rights herein devised shall be and include only the oil, gas or other minerals which may be produced”? (Emphasis supplied.)

In my view, use of the word “devised” as opposed to “bequeathed” is neither significant, enlightening, nor controlling in this will.

I would affirm the trial court.