Conover v. Parker

• Decision Date: 12 December 1922
• Docket Number: No. 14719.,14719.
• Citation: Conover v. Parker, 305 Ill. 292, 137 N.E. 204 (Ill. 1922)
• Parties: CONOVER v. PARKER et al.
• Court: Illinois Supreme Court

305 Ill. 292

137 N.E. 204

CONOVER

v.PARKER et al.

No. 14719.

Supreme Court of Illinois.

Oct. 21, 1922.

Rehearing Denied Dec. 12, 1922.

Suit by Dolph Conover against Valmore Parker and others.Decree for complainant, and defendants appeal.

Affirmed.

Appeal from Circuit Court, Crawford County; Julius C. Kern, judge.

Valmore Parker and Jones & Lowe, all of Robinson, for appellants.

Bradbury, Gaines & Bradbury, of Robinson, for appellee.

FARMER, J.

This is an appeal from a decree of the circuit court of Crawford county granting the relief prayed in a bill in chancery filed by complainant, Dolph Conover, who is appellee here.The appeal was taken to the Appellate Court for the Fourth District and was by that court transferred to this court on the ground that a freehold is involved.

Henry Parker was the owner of 260 acres of land in Crawford county.He and his wife on December 12, 1905, executed and delivered to Charles B. Shaffer an instrument in writing under seal authorizing Shaffer to enter upon the land, prospect, and operate it for oil and gas on certain terms and conditions, and the principal question involved for decision is whether that instrument conveyed to Shaffer the oil and gas in place under all the land, or whether it was an oil and gas lease and right to go upon the land to prospect and produce oil and gas if found and to own part of it when produced and taken from the ground.

The instrument is a common form used and generally called an oil and gas lease.It recited that in consideration of one dollar paid Parker and the covenants and agreements of Shaffer in the instrument, Parker ‘has granted, demised, leased and let, and by these presents does hereby grant, demise and let unto the said lessee, all the oil and gas in and under the following described tract of land, with covenant of general warranty and for the lessee's quiet enjoyment of the term, and that the lessor has the right to convey the premises to the said lessee, together with the exclusive right unto the lessee to operate and drill for petroleum and gas.’It was further agreed in the instrument that Shaffer was to lay and maintain pipe lines and other structures mentioned, necessary for operating, and was to have a right of way over the land for purposes necessary to the operation for oil on all the land, which was particularly described.The instrument was to remain in force for ten years, and as long thereafter as oil and gas, or either, was produced from the land by Shaffer, his heirs, executors, administrators, or assigns.By the terms of the instrument Shaffer agreed to deliver to Parker, his heirs or assigns, free of cost, in pipe lines or tanks connected with wells, one-eighth of all oil produced and saved from the premises.He further agreed to complete a well on the land within one year, or make certain payments if the completion of the well was delayed beyond the time agreed upon.The lease, by assignment, passed to and became the property of the Ohio Oil Company.

Parker executed a will in December, 1907, and died in January, 1909.He left a widow, six children, and three grandchildren as his only heirs at law.By his will he gave his wife, during her natural life, the proceeds, rents, issues, and profits, including oil and gas in or under the real estate he died seized of, together with the income derived from any and all of his personal property, moneys, or choses in action, to be collected and paid to her by his executors.By the fifth, sixth, seventh, eighth, and tenth paragraphs he devised certain real estate owned by him to each of five of his children.By paragraph 9he devised to Millie Conover, one of his children, 40 acres of land described.By paragraph 11he devised certain land described to his grandchildren.Each of these paragraphs contained the clause:

‘Excepting the oil and gas and mineral therein and thereunder, said above-described premises situated in the county of Crawford and state of Illinois, subject, however, to the bequests and devises hereinbefore made for the use and benefit of my said wife, Mary Parker, therein.’

By paragraph 12he gave to each of his six children mentioned, including Millie, one-seventh of all the oil, gas, and mineral under the real estate he died seized of, subject to his wife's interest.By paragraph 13he gave his three grandchildren one-seventh of the oil, gas, and mineral, subject to the same terms and conditions.The will was duly probated and letters testamentary granted to executors.

Producing wells were sunk on the land and a large amount of oil was taken out.It is not questioned that the royalty agreed upon was paid by the Ohio Oil Company to Parker during his lifetime and to his executors after his death, until the death of the widow.Since her death a portion of the royalty has been claimed by appellee, the surviving husband and sole devisee and legatee of Millie Conover, one of Parker's daughters.His right to it was disputed by the other heirs of Parker.Mrs. Conover died testate before her mother's death.She left her husband surviving but no descendant.By her will she bequeathed all her personal property, ‘including my share of the proceeds of any and all oil produced...