Daniels v. Charles

• Court: Kentucky Court of Appeals
• Writing for the Court: MILLER, C.J.
• Citation: Daniels v. Charles, 172 Ky. 238, 189 S.W. 192 (Ky. Ct. App. 1916)
• Decision Date: 16 November 1916
• Parties: DANIELS v. CHARLES ET AL.

189 S.W. 192

172 Ky. 238

DANIELS v. CHARLES ET AL.

Court of Appeals of Kentucky.

November 16, 1916

Appeal from Circuit Court, Pike County.

In the matter of the judicial settlement of the accounts of Mary Daniels, administratrix, opposed by America Charles and others. From a judgment denying the claim of the administratrix to some of the royalties under a lease of coal lands of the decedent, the administratrix appeals, and the opponents cross-appeal. Affirmed on the principal appeal, and reversed, with instructions, on the cross-appeal.

J. J Moore, Jno. F. Butler, and J. S. Cline, all of Pikeville, for appellant.

P. B Stratton, of Pikeville, and C. M. Whitt, of Williamson, W Va., for appellees.

MILLER C.J.

This is the third appeal of this case. See Charles v. Daniels, 140 Ky. 379, 131 S.W. 42, and Daniels v. Charles, 154 Ky. 232, 157 S.W. 32, for the former opinions. This appeal presents but a single issue, and it is a new one.

William Daniels died in 1900, leaving 13 children. He was the owner of 800 acres of land in Pike county. His widow, Mary Daniels, the appellant, qualified as administratrix of her husband's estate, and filed this action to settle his estate and sell the land for the payment of debts. At the sale the widow bought the land, and the first appeal was successfully prosecuted for the purpose of setting aside that sale, upon the ground that she, having bought the land while acting as administratrix, held it in trust for her children, and not in her own right. The case was remanded for the purpose of settling her accounts as administratrix along the lines indicated in the first opinion. The land was divided, and dower was allotted to Mary Daniels, as widow. Subsequently the widow tendered an amended answer and counterclaim, setting up that she and her husband, in 1898, had leased for a royalty of seven cents per ton, all the coal under the 800-acre tract, to J. K. Anderson, who had assigned his lease to the Thacker Coal Mining Company, and that under said lease she was entitled to one-third of all the royalties upon coal mined and shipped from the land. The court, however, refused to let the amended answer and counterclaim be filed. In a settlement made pursuant to the first opinion, it was adjudged that a small sum was due the administratrix, and upon the second appeal that judgment was affirmed. But, in passing upon the ruling rejecting the claim for royalties, this court, in the second opinion, said:

"While it is true that a widow may be endowed in a mine already opened, and it has also been held that where a valid lease was made by the husband in his lifetime, she is entitled to dower in the royalties, this rule applies only in the event the royalties are paid on coal mined from the land of which she is endowed. Priddy v. Griffith, 150 Ill. 560 , 41 Am.St.Rep. 397. In the present case no coal has been mined from the dower land. Should any coal be mined there in the future, she may present her claim in an independent action." 154 Ky. 235, 157 S.W. 33.

Upon the return of the case to the circuit court after the second appeal, the amended answer and counterclaim was filed, and the widow was permitted to prosecute her claim to the royalties. In the contract of May 28, 1898, with Anderson, William Daniels and Mary, his wife, agreed as follows:

"That for and in consideration of one dollar paid in hand, the receipt whereof is hereby acknowledged, the parties of the first part agree to lease all the coal on their land in Pike county, at seven cents per ton royalty, to the party of the second part as soon as title is cleared, and when party of the second part begins work on plant within three months and ships coal in twelve months from date, they, the parties of the first part will execute to the party of the second part a good and sufficient lease for the coal on above lands with the usual mining privileges thereon."

Later, on March 17, 1906, Mary Daniels, in her own right and as guardian of her four infant children, attempted to carry out the original contract of 1898, by executing a formal written lease to the Thacker Coal Mining Company, in which she confirmed and ratified the leasing agreement of May 28, 1898. This lease is the usual mining lease, and contained the many provisions which are usually found in such leases. Upon the trial of the case it appeared that the commissioner had received $774.83 as royalties upon coal that had been mined from the dower tract, and the widow claimed all of it. The chancellor, however, was of opinion that the widow's share of the royalties on the coal mined from the dower tract should be estimated according to the life tables, and that the remainder of the $774.83 belonged to the children of William Daniels. Under this ruling the widow was adjudged slightly more than 15 per cent., or $116.45 of the $774.83. This was about one-seventh of the royalties received upon coal mined from the dower tract. The widow appeals, claiming all of the $774.83, while the children prosecute a cross-appeal, claiming that the widow is entitled to none of it.

Stated in general terms, the rule is that a tenant for life, unless precluded by restraining words, may work a mine that was opened before the creation of the life estate. Shoemaker's Appeal, 106 Pa. 302; Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986, 8 Ann.Cas. 1117; Alderson v. Alderson, 46 W.Va. 242, 33 S.E. 228; Plymouth v. Archer, 1 Br. Ch. Cas. 159; Veiners v. Vaughan, 2 Beav. 466; note in 36 L.R.A. (N. S.) 1102.

When not expressly precluded, a life tenant may work a mine opened before the commencement of his estate, even to exhaustion. Sayers v. Hoskinson, 110 Pa. 473, 1 A. 308; Moore v. Rollins, 45 Me. 493; Gerkins v Kentucky Salt Co., 100 Ky. 735, 39 S.W. 444, 19 Ky. Law Rep. 130, 66 Am.St.Rep. 370, cases cited in note in 36 L.R.A. (N. S.) 1103. And the cases are all agreed that a right to dower exists in mines opened during the husband's lifetime. Whittaker v. Lindley, 3 S.W. 9, 8 Ky. Law Rep. 690; Moore v. Rollins, 45 Me. 495; Coates v. Cheever, 1 Cow. (N. Y.) 460; Hendrix v. McBeth, 61 Ind. 473, 28 Am.Rep. 680; Rockwell v. Morgan, 13 N.J.Eq. 384; Billings v. Taylor, 10 Pick. (Mass.) 460, 20 Am.Dec. 533; Crouch v. Puryear, 1 Rand. (Va.) 258, 10 Am.Dec. 528; Higgins Oil & Fuel Co. v. Snow, 51 C.C.A. 267, 113 F. 433; Lenfers v. Henke, 73 Ill. 405, 24 Am.Rep. 263; Hook v. Garfield Coal Co., 112 Iowa 210, 83 N.W. 963; Keon v. Bartlett, 41 W.Va. 559, 23 S.E. 664, 31 L.R.A. 128, 56 Am.St.Rep. 884; Stoughton v. Leigh, 1 Taunt. 402. But there is no dower in unopened mines. A doweress has no right to mine coal from...