AFFIRMED and Opinion Filed February 14, 1995.




                                                       In The

                                          Court of Appeals
                            Txfttf district of ©*xas at Ballas
                                              No. 05-94-00784-CV


                         BILL STEGER AND JOHN STEGER, Appellants

                                                           V.


                    BETTY WILKINS AND L. DURELL HUGHES, Appellees

                                On Appeal from the Probate Court No. 1
                                              Dallas County, Texas
                                   Trial Court Cause No. 93-1881-P(A)


                                                 OPINION

                          Before Justices Lagarde, Whittington, and Stewart1
                                       Opinion By Justice Whittington

         In this will-construction case, Bill and John Steger appeal the trial court's grant of
 summary judgment in favor of Betty Wilkins and L. Durell Hughes, independent co-
 executors of Martha Lou Hughes's estate ("appellees"). At trial, the Stegers sought a
 declaratory judgment that they were the owners of working interests on acreage in four
 tracts of land owned by Martha Lou Hughes at her death. The Stegers claimed aright to

    'The Honorable Annette Stewart, Justice, Court of Appeais, Fifth Dttrict of Texas at Dai.as, Retired, sitting by assume,.
the working interests based on language in Martha Lou Hughes's will. The trial court
disagreed and granted summary judgment in favor of appellees, declaring that the Stegers
had no right to the working interests. In one point of error, the Stegers challenge this
ruling. For the reasons set forth below, we affirm the trial court's judgment.
                         FACTUAL AND PROCEDURAL BACKGROUND

       Carrie T. Maddox owned four tracts of land in Montague County, Texas. Prior to

her death, Carrie executed various oil and gas leases covering acreage included in the four
tracts in favor of her son-in-law, Dan Hughes, as lessee. Carrie later died and, in her will,
bequeathed various interests relating to the four tracts of land to her daughter, Martha Lou
Hughes (Dan's wife). In particular, Carrie's will gave Martha Lou (1) the fee simple rights
to the surface estates on all four tracts of land; (2) a one-tenth share of all bonuses payable
out of production and aone-tenth share of all royalties on oil, gas, and minerals that may
be produced on the tracts; (3) the exclusive right to execute oil, gas, and mineral leases on
 the property; (4) all bonus monies received for the execution of oil, gas, and mineral leases
 on the property (as distinguished from bonuses payable out of production); and (5) all delay
 rentals which might be payable under any oil, gas, and mineral leases.2
   2The bequest from Carrie to Martha Lou stated, in pertinent part:
                  I devise to my beloved daughter Martha Lou Hughes in fee simple all of my undivided
                  interest in the surface rights in and to the following described lands, to wit:
                                        [property descriptions for four tracts of land]
                  Ido hereby devise all bonuses payable out of production and all of the royalty on oil,
                  gas and other minerals in and under and which may be produced from the lands
                  described Iabove] which Imay own at the time of my death to my beloved children, hmily
                   E Womble one share; James D. Maddox, one share; Arthur Croxton Maddox, one share;
                   Bovd C Maddox, one share; Tillman H. Maddox, one share; Marjorie M. Steger, one
                     3                                                                        (continued...)




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        Following Carrie's death, Martha Lou executed two oil and gas leases in favor of her
husband, Dan Hughes, covering acreage not previously leased out of the four tracts.
Thereafter, Dan Hughes completed wells on the property. It is undisputed that these wells
have produced oil and gas in paying quantities since their inception. When Dan Hughes
died, he devised his working interests in the oil and gas leases to Martha Lou. Thus, after
her husband's death, Martha Lou also owned the working interest3 granted by the oil and
gas leases covering the acreage in the four tracts of land.
         When Martha Lou died, she left certain oil, gas, and mineral interests to her two
nephews, Bill and John Steger. Specifically, Martha Lou's will made the following devise:
                            I GIVE and DEVISE to my two nephews, BILL
                   STEGER, presently of Houston, Texas, and JOHN STEGER,
                   presently of Oklahoma City, Oklahoma, all of the oil, gas, and
                   mineral interests of whatever nature that I inherited from my
                   deceased mother Carrie T. Maddox. (Emphasis added.)

         Based on the language of Martha Lou's will, the Stegers claimed a right to all of the
 working interests on the four tracts of land covered by Carrie's original will. They sent a


                       2(...continued)
                   share- Martha Lou Hughes, one share; and to my beloved grandchildren James Coe
                   Maddox John Clyde Maddox, and Maxine Bullock together one share. Ido devise to the
                   said Martha Lou Hughes and her successors in title in fee simple the exclusive right and
                    power to execute oil, gas, and mineral leases on my undivided interest in the lands
                    described [above] without the consent and without the joinder of any other person ....
                    And Ialso devise to the said Martha Lou Hughes all bonus monies (as distinguished from
                    bonuses payable out of production) which she may receive for the execution ofoil gas,
                    and mineral leases ... on the lands described [above] and all delay rentals which may'
                    be paid under any such leases or any leases which may be in existence at the time of
                    my death .... (Emphasis added.)
    >A"workine interest" is the interest owned by the lessee of an oil and gas lease. Back's Law D.ct.onary 1605 (6th ed. 1990).
 The intent1f^Z to Isa ••working Merest' because it grants the .essee the right to work on the leased property to search
 for, develop, and produce oil and gas on the property. See id.


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demand letter to appellees, the co-executors of Martha Lou's estate, asserting a right to the
working interests. Appellees disputed the Stegers's claim to the working interests and filed
this declaratory judgment action to obtain a court-ordered interpretation of Martha Lou's
will. The Stegers filed a counterclaim, seeking a declaration that they owned the entire
mineral estate (including the working interests) covering the four tracts of land referenced
in Carrie's will.

          Appellees filed a motion for summary judgment, contending the Stegers were not
entitled to the working interests on the subject property because Martha Lou had not
inherited those interests from her mother, Carrie Maddox. Appellees maintained that any
 interest Martha Lou had in the working interests was a result of (1) the community property
 laws (which gave her acommunity property interest in the leases Carrie executed in favor
 of Dan), and (2) Dan's will (which devised his working interest in the property to Martha
 Lou). Because Martha Lou's working interest in the property came exclusively from these
 two sources rather than from Carrie's will, appellees argued the Stegers had no claim to the
 working interests under the express language of Martha Lou's will (which devised only the
 "oil, gas, and mineral interests" Martha Lou obtained from Carrie's will). Appellees sought
 adeclaration that the Stegers had no ownership interest or claim of right to the working
 interests in the properties. The Stegers filed across-motion for summary judgment seeking
  the opposite declaration.
           After considering the summaryjudgment evidence and arguments of counsel, the trial
  court
          granted appellees' summary judgment motion and denied the Stegers's cross-motion.
The court's order provided, in pertinent part, that:

               IT   IS THEREFORE ORDERED,               ADJUDGED         AND
               DECREED that [appellees'] Motion for Summary Judgment is
               hereby granted, and that the Court hereby declares that under
               the Will of Martha Lou Hughes, Deceased, Defendants John
               Steger and Bill Steger have never had a claim of right, title or
               interest in and to the working interest in the oil and gas
               leasehold estates covering the four tracts in Montague County,
               Texas . . . .


       The trial court permanently enjoined the Stegers from interfering in any way with the
operation of the leases on the four tracts of land. After the trial court severed the claims
covered by the summary judgment from appellees' remaining claims, the Stegers brought
this appeal.

                                 STANDARD OF REVIEW


       The standard for reviewing a summary judgment is well established:

       1.      The movant for summary judgment has the burden of showing
               there is no genuine issue of material fact and it is entitled to
               judgment as a matter of law.

       2.      In deciding whether there is a disputed material fact issue
               precluding summary judgment, we take the evidence favorable
               to the nonmovant as true.


        3.     We indulge every reasonable inference in favor of the
               nonmovant and resolve any doubts in its favor.

 See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
        To prevail on summary judgment, aplaintiff must conclusively establish all elements
 of its cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.
 1972); Tex. R. Civ. P. J66a(c). Amatter is conclusively established if ordinary minds could
not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v.

Marine Contractors &Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).

       The purpose of the summary judgment rule is not to provide a trial by deposition or
affidavit. Rather, the purpose of the rule is to provide a method of summarily ending a case
that involves only aquestion of law or no genuine issue of fact. Gaines v. Hamman, 163 Tex.
618, 358 S.W.2d 557, 563 (1962); Port Distrib. Corp. v. Fritz Chem. Co., 775 S.W.2d
669, 670 (Tex. App.-Dallas 1989, writ dism'd by agr.). The rule is not intended to deprive
litigants of their right to afull hearing on the merits of any real fact issue. See Gulbenkian
v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).
                            RIGHT TO WORKING INTEREST

        Under Martha Lou's will, the Stegers inherited all the oil, gas, and mineral interests

that Martha Lou inherited from her mother, Carrie Maddox. In their sole point of error,
 the Stegers contend the trial court erred in granting summary judgment in favor of appellees
 and concluding the Stegers had no right to the working interests on the four tracts of land
 referenced in Carrie's will. The Stegers contend that the language of Carrie's will, when
 read in its entirety, clearly devised the full mineral estate on each tract of land to Martha
 Lou and that they were therefore entitled, under the express language of Martha Lou's will,
 to the full mineral estate, including the working interest, on each tract. Appellees counter
 that Martha Lou did not in fact receive the full mineral estate on each of the four tracts
 under Carrie's will, but instead received only certain rights with respect to the oil, gas, and
 minerals under the property. Appellees maintain that because Martha Lou did not obtain
the working interest on the leases through Carrie's will, the Stegers were not entitled to
those interests under the language of Martha Lou's will. We agree with appellees and

accordingly affirm the trial court's order.

       Determining testamentary intent is the critical inquiry in a will-construction case.
Henderson v. Parker, 728 S.W.2d 768, 770 (Tex. 1987). All rules of construction must
yield to the basic intention and purpose of the testatrix as reflected in the instrument.
Shriner's Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). In
determining testamentary intent, we look first to the language used by the testatrix in the
four corners of the instrument. Henderson, 728 S.W.2d at 770; Stahl, 610 S.W.2d at 151.
In the absence of ambiguity, we will construe a will based on the express language used
therein. Henderson, 728 S.W.2d at 770. The question is not what the testatrix intended to
write, but the meaning of the words she actually used. Stahl, 610 S.W.2d at 151. Although
wills are to be accorded a liberal construction, see Roberts v. Drake, 380 S.W.2d 657, 660
 (Tex. Civ. App.-Dallas 1964, writ ref'd n.r.e.), we may not redraft awill or vary or add
 provisions to awill under the guise of "will construction" in order to reflect some presumed
 intention of the testatrix. Stahl, 610 S.W.2d at 151.
        During oral argument, the Stegers conceded that any claim they may have to the
 working interests is contingent on abequest by Carrie to Martha Lou of the full mineral
 estate under the terms of Carrie's will. The Stegers concede that if Martha Lou did not
 in fact receive the full mineral estate, then they were not entitled to the working interests
 on the four tracts of land. Thus, the paramount issue that we must resolve in this appeal
is whether Martha Lou in fact inherited a full mineral estate under her mother's will. We
conclude, based on the unambiguous language of Carrie's will, that she did not.
         Under Carrie's will, Martha Lou received the following rights with respect to the
minerals under the four tracts of land: (1) a one-tenth share of bonuses and royalties
payable out of production, (2) the right to execute leases on the property, (3) bonuses
payable for the execution of any leases on the property, and (4) any delay rentals payable
under the leases. Although the Stegers contend, based on the language granting these
various rights, that Martha Lou inherited the full mineral estate from her mother, we do not
agree.

         In Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986), the Texas Supreme Court
 recognized that asevered mineral estate has five essential attributes. Those attributes
 include: (1) the right to develop (i.e., the right of ingress and egress); (2) the right to
 lease; (3) the right to receive bonus payments; (4) the right to receive delay rentals; and (5)
 the right to receive royalty payments. Altman, 712 S.W.2d at 118. Although Carrie's will
 does devise the last four of these attributes to Martha Lou, it does not address or
 contemplate devising the right to develop minerals on the subject land. This is an essential
 attribute of amineral estate since it allows the owner of the estate to enter land and extract
  his "property" from underneath the land. See Luckel v. White, 819 S.W.2d 459, 463 (Tex.
  1991) (describing "right to develop" as right to develop and produce minerals).
          Although the Stegers contend Martha Lou did in fact inherit the right of ingress and
  egress on the property (and thus the right to develop the minerals under the property)
because she inherited the surface rights to the property from her mother, we do not

agree. The right to develop contemplated in Altman is the right to enter onto land and
develop the minerals underneath the land. Owning the surface estate to a specified piece
of property, however, does not give the owner of that estate the right to develop the
minerals under the land; it only gives the owner the right to enter the land and use the
surface, be it for farming, grazing cattle, or otherwise. See Phillips Petroleum Co. v.
Cowden, 241 F.2d 586, 590 (5th Cir. 1957) (noting that right to explore for minerals is
ordinarily attribute of mineral ownership rather than ownership of surface estate). Because
agrant of the surface estate does not give the surface estate owner the right to develop
contemplated in Altman, we conclude Martha Lou did not inherit the right to develop from
her mother. Because the right to develop is an essential attribute of a mineral estate and
this right is conspicuously absent from the terms of Carrie's will, we further conclude Carrie
did not intend to devise a full mineral estate to Martha Lou.

           As noted previously, testamentary intent is the critical inquiry in awill-construction
 case. Because we conclude it was not Carrie's intent to devise the full mineral estate to
 Martha Lou, we conclude Martha Lou did not inherit the working interests on the subject
 property through her mother's will.4 Thus, we conclude the Stegers were not entitled to the
 working interests on the four tracts of land.

    -T* convey o«»„,»^                 *»w?^ --J—*-• ™>™ «^£"£?-££££5
 to mineral interest); Diamond Shamrock Corp. v. Cone, 673 S.W.2d 310, 313 14 (lex. APP.
 (same).
      We find this conclusion to be supported by other portions ofCarrie's will; specifically,

her devise of the surface rights in the property to Martha Lou. In her will, Carrie devised
to Martha Lou "in fee simple all of [her] undivided interest in the surface right in and to
[the subject properties]." This clear grant of the surface rights indicates Carrie knew how
to convey an entire estate in land when that was her intent. The fact that she did not use
this same language when addressing the minerals under the land, but instead opted for a
more narrow devise of particular rights, indicates that Carrie did not in fact intend to convey
the entire mineral estate to Martha Lou. Indeed, we consider Carrie's intent under the will
to be clear: she intended to divide any bonuses and royalties payable out of production
among all her descendants in equal shares, while leaving Martha Lou the right to execute
leases on the property and, thus, manage the mineral estate for the benefit of all of Carrie's
heirs. In return for undertaking the additional burden of managing the estate, Carrie
 compensated Martha Lou by giving her all the bonuses and delay rentals that might result
 from leasing the minerals under the property.

        We note additionally that Carrie's will does not contain the usual language used to
 convey amineral estate. See, e.g., Altman, 712 S.W.2d at 118-19 (grant of "an undivided
 one-sixteenth (1/16) interest in and to all of the oil, gas and other minerals in and
 under and that may be produced" from the land used to convey one-sixteenth interest
 in the mineral fee); French v. Chevron USA, Inc., 871 S.W.2d 276, 277-78 (Tex. App.-El
 Paso 1994, writ granted) (grant of interest "in and to all of the oil, gas and other
 minerals, in, under and that may be produced from" the land conveyed mineral estate);

                                                10-
Prairie Producing Co. v. Schlachter, 786 S.W.2d 409, 412 (Tex. App.-Texarkana 1990,
writ denied) (same); see also 1Ernest E. Smith &Jacqueline L. Weaver, Texas Law
of Oil and Gas, ch. 3.5 (1994) (noting that traditional language used to create mineral fee
is reference to "oil, gas, and other minerals in, on, and under the described land"). The
language Carrie chose to employ conveying only limited rights with respect to the minerals
under the four tracts of land, rather than the typical language used to convey a mineral
estate, is further indication of her intent to bequeath less than the entire mineral estate to
Martha Lou.5

         We hold the trial judge did not err in concluding the Stegers had no claim to the
working interests on the four tracts and in granting appellees' motion for summary judgment.
 We overrule the Stegers's sole point of error.

          We affirm the trial court's judgment.



                                                         K WHITTINGTON




 Do Not Publish
 Tex. R. App. P. 90
 940784F.U05




     swe note additionally that the language reserving aroyalty ^^^^^^^^^^^^^^
  K^-=sr SLirrr:rr=2r:te^-^n^ a„d bonuses ^ - -
  production in favor of her other descendants.



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