Graham v. Smith

• Decision Date: 28 April 1938
• Citation: 170 Va. 246
• Parties: W. R. GRAHAM, JR., AND OTHERS v. HETTIE G. SMITH.
• Court: Virginia Supreme Court

Page 246

170 Va. 246

W. R. GRAHAM, JR., AND OTHERS v. HETTIE G. SMITH.

Supreme Court of Virginia, Richmond.

April 28, 1938.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. DOWER — Mines and Minerals — Right to Work Opened Mines. — A widow has a right to work opened mines on land assigned to her by way of dower and to do so is not waste. Her benefits so derived are but regular profits from that assignment.

2. DOWER — Mines and Minerals — Rents or Royalties of Mines Not Opened at Husband's Death. — A widow has no dower rights in rents or royalties of mines which had not been opened, either as a physical fact or in contemplation of law, at the time of the husband's death.

3. ESTATES — Life Estate — Rights of Life Tenant as to Mines. — A life tenant has no interest in, and no right to open and work, unopened mines. He may open new pits or shafts for working an old vein of coal; he may sink new shafts into the same veins; he may penetrate through a seam, or open and dig into a new seam which underlies the first, and take coal to any extent from the mine already opened, but he may not open mines. He is guilty of waste if he does, and equity will enjoin him from its commission.

4. ESTATES — Life Estate — Rights of Life Tenant as to Mines. — The rule that a life tenant has no interest in and no right to open and work unopened mines and is guilty of waste if he does must be read in connection with the facts to which it is to be applied, and should be changed or modified to meet such facts.

5. DOWER — Mines and Minerals — Mines Opened at Any Time During Coverture — Lands Leased by Husband for Mining Purposes. — Mines and quarries owned by the husband in fee and opened and worked at any time during coverture are subject to dower, and it makes no difference whether the husband continued to work them to the period of his death, or whether they have been continued since his death by the heir or his assignee. The right extends to lands which have been leased by the husband for mining purposes, although no mines were opened until after the right of dower had commenced.

6. ESTATES — Life Estate — Purpose of Limitations upon Life Tenant's Rights. — Limitations upon the rights of life tenants rest in the law of waste and in the ever present purpose of the common law under the feudal traditions to protect and to preserve estates in remainder.

7. DOWER — Mines and Minerals — Lands Leased by Husband for Mining Purposes — Case at Bar. — In the instant case, a suit to recover dower, the husband, during his lifetime, made a contract with a coal company by which such company was to have the sole and exclusive privilege of mining coal and manufacturing coke in certain land belonging to the husband. The mine was not opened until after the death of the husband, but rents and royalties were due and payable before that event. Nothing that the lessee did was authorized by the widow and she could not have restrained the lessee had she desired to do so. The lower court allowed the widow dower in a sum which was paid into the court registry by the lessee as the sum due from it by way of royalties and rentals.

Held: That whether the mine was regarded as an open mine, entitling the widow to dower, or whether she was to be regarded as a tenant for life, entitled to rents and royalties as incident to the reversion, made no difference, for, in either event, the decree of the court was correct.

8. MINES AND MINERALS — Leases — Contract Constituting Lease and Not Sale — Case at Bar. — In the instant case, a suit involving dower rights, the husband had by contract let and leased to a coal company the sole and exclusive privilege of mining coal and manufacturing coke in certain land owned by him in consideration of payment by the lessee of a fixed minimum royalty or rental of so much per acre of said land.

Held: That the transaction constituted a lease and not a sale of coal in place.

9. MINES AND MINERALS — Rents — Annual Payments on Acreage Basis — Royalties on Ton Basis — Case at Bar. — In the instant case, a suit involving dower rights, the husband, prior to his death, made a contract granting the sole and exclusive privilege of mining coal and manufacturing coke in certain lands belonging to him in consideration of an annual payment of so much per acre and a royalty of so much per ton of coal mined.

Held: That both the annual payment of so much per acre and the royalties of so much per ton were rents.

10. DOWER — Leased Land — Widow Endowed of Reversion. — If a man makes a lease for years, reserving rent, and marries, and dies before the expiration of the term, his wife will not be endowed of the rent, but she may be of the reversion, and the rent pro rata will belong to her as incident to the reversion.

11. DOWER — Mines and Minerals — Leased Lands on Which Mines Were Opened after Husband's Death — Case at Bar. — In the instant case, a suit to recover dower, the husband, during his lifetime, made a contract with a coal company by which such company was to have the sole and exclusive privilege of mining coal and manufacturing coke in certain land belonging to the husband. The mine was not opened until after the death of the husband, but rents and royalties were due and payable before that event. Nothing that the lessee did was authorized by the widow and she could not have restrained the lessee had she desired to do so. The lower court allowed the widow dower in a sum which was paid into the court registry by the lessee as the sum due from it by way of royalties and rentals.

Held: That there was no error in the decree, since the widow's rights in substance were those which would have obtained had the mine been opened by the husband himself and worked by her after his death.

Appeal from a decree of the Circuit Court of Tazewell county. Hon. A. C. Buchanan, judge presiding.

The opinion states the case.

T. C. Bowen, R. O. Crockett and Joseph S. Gillespie, for the appellants.

V. L. Sexton, Edmund D. Campbell, V. L. Sexton, Jr., and Stuart T. Saunders, for the appellee.

HOLT, J., delivered the opinion of the court.

This case deals with the dower rights of a widow, Hettie G. Smith, in coal lands owned by her husband, J. M. Smith, who died intestate.

He was twice married. By the first marriage, there were four children surviving: Thomas T. Smith, Mae S. Graham, wife of W. R. Graham, Pearl S. Cecil, wife of J. A. Cecil, and Charles B. Smith.

W. R. Graham, Jr., one of the appellants here, is the only son and heir at law of Mrs. Mae S. Graham, and Mrs. Edna Bonham Smith is the sole devisee and legatee of Charles B. Smith, deceased.

By contract of date June 15, 1906, J. M. Smith and J. C. Smith, his first wife, leased to the Pocahontas Collieries Company certain coal lands in which they undertook "to let and lease to the said party of the second part, lessee for the period of one hundred (100) years from the date hereof, the sole and exclusive privilege of mining coal and manufacturing coke from the veins or seams of coal in, upon and under all that certain tract, piece or parcel of land, containing 353.79 acres, more or less, situate, lying and being principally in the county of Tazewell."

The lessee was to pay "a fixed minimum royalty or rental of $6.25 per annum for each acre of the said land for the first five years after the lease was made, and thereafterwards, agreed to pay a certain fixed minimum royalty or rental of $12.50 per acre for each acre thereof, and in addition thereto, as shown by Article XII of the lease (record page 46), the lessee agreed `to either mine or pay for all coal in said Pocahontas No. 3 vein and in the Upper Smith vein of coal, underlying said tract of 353.79 acres, within the period of thirty years from the date of this lease, at the rate of ten cents per ton of 2,240 pounds.'" Appellants' brief.

The contract further provided that all rents and royalties were to be treated as rents reserved by the lessor. Smith and wife owned a one-third interest in this land and in this lease the other owners joined. As incidental to its main rights, certain surface rights were also to be conveyed.

That brief further contains this proper statement of the situation:

"After thirty years from the date of the said lease, the lessee paid into the registry of this court, in this case, the sum of $159,361.62, being what it then claimed as the amount due to be paid by it under the lease by way of royalties and rentals. John M. Smith died on the 12th day of April, 1929, and if he had lived, would have been entitled to one-third of the said sum of money. His widow, the appellee, claims that she is entitled to be endowed in the sum of $17,333.02, being one-third of one-third of the sum of money so paid into the registry of the court. The Circuit Court of Tazewell county, by the decree which is complained of, gave a recovery in her behalf for the said sum of $17,333.02. Appellants, who are the heirs at law of John M. Smith, deny that she is entitled to that recovery."

A widow has a right to work opened mines on land assigned to her by way of dower. To do so is not waste. Her benefits so derived are but regular profits from that assignment. Minor on Real Property, secs. 290 and 431.

The questions to be decided are:

(1) Is the widow entitled to be endowed outright in the coal in the Pocahontas No. 3 vein and in the Upper Smith vein underlying the said property and to receive as such dower the said sum of $17,333.02?

(2) If the widow is not entitled to recovery of the said sum of money by way of dower, is she entitled to recover it as a distributee of her husband, John M. Smith?

It is conceded that the widow has no dower rights in these rents or royalties if mines on this property had not been opened either as a physical fact or in contemplation of law at the time of J. M. Smith's death. This we held in Bond Godsey, 99 Va. 564, 567, 39 S.E. 216, 217. It was there said:

"It is...