Partick Dolan died owner of a very considerable landed and personal estate, leaving five children, John J. Dolan, Mary, Catherine, Anna J. and Michael P. -Dolan. He left a will. Its fourth clause reads as follows: “I will and devise to my son, Michael P. Dolan, in fеe the surface of my farm at Wolf .Summit containing three hundred and seventeen acres, also six acres of the coal underlying said three hundred and seventeen acres to be located around the dwelling houses and buildings on said three hundred and seventeen acres, so as to preserve and protect the said buildings when the residue of the coal Underlying the said three hundred and seventeen acres is at any time hereafter mined or removed.” In clause 7 is the following language: “I further will and devise to my said daughter Catherine all the coal underlying the said tract of three hundred and seventeen acres of land hereinbefore devised to my son Michael P Dolan, with the exception of six acres of coal hereinbefore reserved and devisеd to my said son Michael P. as hereinbefore mentioned.”
By other clauses he made bequests and devises. To his wife his furniture during life, with remainder to Anna J. and Catherine Dolan, and $1,000 money; and to John J. Dolan 289 acres of land; to his daughter Mary one dollar; to Miсhael P. Dolan all live stock and farming utensils; to Catherine Dolan $2,000, to be paid by John J. Dolan; to Catherine Dolan
Michael P. Dolan, claiming to own the oil and gas in the tract of 317 acres devised 'to him by the fourth clause of the will, leased the same to South Penn Oil Company for the production of oil and gas, and this company transferred to the Hope Natural Gas Company the gas right, estate under the lease. Thus the right to develop oil under lease is vested in South Penn Oil Company, and right to develop gas is vested in the Hope Natural Gas Company. John J. Dolan, Mary Flanagan, Catherine Dolan Burns, and Annie J. Coleman, four of the children of Patrick Dolan, deceased, claiming right to oil and gas in the tract of 317 acres devised to Michael P. Dolan, (except a part which they quit-claimed to him) made a lease to John W. Davis for development of oil and gas in' a tract of 180 acres, that part of the 317 not quit-claimed, and Dаvis transferred such lease to Washington Gas Company. Later John J. Dolan, Mary Flanagan, Catherine Dolan Burns, Annie J. Coleman and Washington Gas Company brought an action of ejectment against Michael P. Dolan, South Penn Oil Company and Hope Gas Company to - recover the oil and gas in that 180 acres, and recovered verdict and judgment for the same, and those defendants come to this Court by writ of error.
Did Michael P. Dolan take the oil and gas under his father’s will? If he did, the plaintiffs have no title to them. What does the word “surface” in a will mean? Or rather,-what does it mean as used in this particular will ? for that is our question.
Briefs of counsel upon this and other questions show great ability and research, but cite ‘ a legion of diverse authority, confusing and bewildering to the mind. It is said that there is no subject of law on which cases are less useful than wills, as no two are alike, and the particular intent of each, under its own provision, must be the guide. As to this word “surface” a brief says that the English and law dictionaries give 'it no definition useful in construction of legal writings. • It .will not
Under this principle devise to Michael P. Dolan by the fourth clause of the will of the three hundred and seventeen acres would except the oil and .gas and leave them in the testator’s heirs. Bat we must look at other parts of the will in connection with that devise, and especially that provision in clаuse 7 which says: “I further will and devise to my said daughter Catherine all the coal underlying the said tract of
Another consideration is of grеat importance upon construction of clause four, that is, that it is a fixed rule of law that when a man makes a will .the presumption, in the absence of proofs to the contrary is, that he intends thereby to dispose of his whole estate. Irwin v. Zane,
Another forcible argument in favor of this holding lies in the fact that Patrick Dоlan by his will, though disposing of his whole estate, cut off his daughter Mary with only one dollar. There is inconsistency between the position that he intended to except all minerals in the tract willed to Michael, and the fact that the father intended to cut off Mary from sharing in his estate; the two intents are in conflict; for he mirst have known that if he died still owning such minerals, she would share in them by the law of descents, whereas his fixed intent was to deny her a share. This is shown by the will itself in its one-dollar legacy to her. But this is enforced by some evidence-offered by the defendants, but excluded. This evidence was-, to be given by the attorneys who prepared the will, John J. and John W. Davis, to the effect that Patrick Dolan specifically directed that the will give Mary only a dollar; and that later before the completion of the will, John J. Davis asked Dolan if he thought he wa-s doing justice to his daughter Mary, when he replied with emphasis that she must.be disinherited because she had declared that she was going to marry a certain man against her father’s will, showing determined purpose to exclude this daughter. The question is what the import of the word "surface”; did the testator intend to reserve minerals ? This evidence was meant to show that he did not design to retain minerals because that would defeat his purpose to disinherit Mary Dolan. Why say she should have only a dollar, and yet retain it may be valuable oil and gas rights in which she would share by descent? -I do not think this evidence necessary, because I think the will itself gives the word “surface” meaning plain, and that there is no ambiguity; but if there is ambiguity, evidence to enable a court to put itself in Dblan’s place, to show the estate, the family, the motives toward them,
But it is said that our holding is contrary to Williams v. South Penn Oil Co.,
The above quoted point in the Williams Case is inaccurate in expression; but as Wilson conveyed “surface”, without anything to divеrt the word from its primary meaning, the point was meant only to say that such a conveyance, using only the word “surface”, would except oil and gas.
As the legal construction of the will gives Michael P. Dolan the oil and gas, the verdict is contrary to both law and evidence; and it was error to give a binding instruction to the jury to find for the plaintiffs, and error to refuse a binding instruction to find for the defendants.
Therefore, we reverse the judgment, set aside the verdict, and enter judgment in this Court for the defendants, the case turning solely on the construction of the will.
Reversed and Judgment Rendered.