Thompson v. Thompson, A-2776

Citation236 S.W.2d 779,149 Tex. 632
Decision Date31 January 1951
Docket NumberNo. A-2776,A-2776
PartiesTHOMPSON v. THOMPSON et al.
CourtSupreme Court of Texas

Cole, Patterson, Cole & McDaniel, and T. R. Kirchheimer, all of Houston, Black & Stayton, Austin, M. W. Terrell, San Antonio, and Arch Dawson, Wichita Falls, for petitioners.

W. H. Betts, Hempstead, for respondents, Mrs. Ethel Charpiot and husband and Mrs. Hazel Norman and husband.

Dan Hruska, C. D. Duncan, and J. Lee Dittert, all of Bellville, for respondent, Roy Thompson, Individually, etc.

GRIFFIN, Justice.

One R. W. (Robert W.) Thompson, who died October 19, 1948, married the petitioner, Edna Thompson, on October 18, 1916 and these parties lived together as husband and wife until the death of R. W. Thompson. At the time of his marriage he was a widower and had three children by his first marriage, and who are the respondents here (joined by the husbands of the daughters), and who were living in his household at the time of the second marriage. At the time of his marriage, R. W. Thompson owned an undivided one-half interest in the tract involved in this suit, and totaling approximately 334 acres. The son Roy Thompson, owned the other one-half of said land and lived on said land in a home of his own. Petitioner and R. W. Thompson, immediately upon their marriage, moved into a two-story frame house on the land owned by R. W. Thompson and continued to live in said house and occupy the land as a homestead at all times until the death of R. W. Thompson. Since his death petitioner has continued to occupy this house and land as her homestead down to date of the trial in the lower court. This land was the separate property of R. W. Thompson. R. W. Thompson owned only an undivided one-fourth of all the oil, gas and other minerals in and under his land.

On December 28, 1925, R. W. Thompson, joined by his wife, petitioner herein, executed an 'unless' oil and gas and other mineral lease, vesting in the lessee the 'exclusive right of mining and drilling for oil, gas, and other minerals, 'as well as such easements over and across the surface of said lands as were necessary for such mining and/or drilling operations, for a cash consideration, and the additional consideration of the obligation of such lessee to deliver to lessors as royalty one-eighth (1/8), in kind, of such oil as might be produced from said premises by said lessee. Said lands being the separate property of the said R. W. Thompson * * *"

The Humble Oil & Refining Company became the owner of said lease and brought in a well under said lease shortly after its execution and this land has produced oil and gas continuously for more than 20 years prior to the death of R. W. Thompson, and at the time of his death there were 13 wells producing under said lease and R. W. Thompson had collected pay for the royalties reserved under said lease, and according to his ownership of the land.

On April 1, 1927, R. W. Thompson and wife, Edna, and others joined in the execution of a division order addressed to Humble Oil & Refining Company, and containing the following provisions deemed by us to be pertinent to the points herein discussed:

'The undersigned certify and guarantee that they are the owners of the oil, including royalty interest, produced from wells No 1 and up on the R. W. Thompson Farm or lease, in Oil Field in Austin County, Texas, which farm or lease is described as follows: * * *

'Until further written notice, you are authorized for your own account, to receive such oil into your own possession or the possession of any person or corporation designated by you, same to be run and measured in accordance with the customary pipe line rules and regulations, including adjustments and deductions provided for by the rules of the Texas Railroad Commission, such oil to be credited as follows: * * *

'The oil run hereunder shall on the terms herein contained become the property of Humble Oil & Refining Company immediately upon being received into the possession of said Company or its designated agent, and said Company agrees to receive and pay for such oil to the respective owners according to the division of interest hereinabove indicated at its posted per barrel (42 gallons) field price for similar crude in the field where received prevailing on the date of such respective run, settlements and payments to be made monthly by check of Humble Oil & Refining Company mailed to the respective parties at the addresses above given.

'Each undersigned hereby warrants and guarantees the title to the oil credited to such undersigned owner according to the division of interest hereinabove indicated, as well as all interest hereafter acquired and agrees to furnish abstract of title, * * *.'

This division order was signed but not acknowledged by any of the signers.

When R. W. Thompson died he left a will, executed on November 26, 1927, appointing Roy Thompson as Independent Executor without bond, and making certain provisions for his wife, Edna, and directed 'that all of my just debts be paid out of my estate by my hereinafter named executor as soon after my decease as he may deem necessary and expedient.' He gave his interest in the land to his son, Roy, and required Roy to pay his sister, Ethel, (respondent, Mrs. Ethel Charpiot) and his sister, Hazel (respondent, Mrs. Hazel Norman) the sum of $2,000.00 each within one year after testator's death, for their interest in the land. R. W. Thompson's will contained no general residuary clause.

The oil, gas and other minerals were given to his two daughters, Ethel and Hazel, by the Sixth paragraph as follows: 'Sixth: I give and bequeath unto my said two daughters, Ethel and Hazel, share and share alike, all oil and gas and other minerals, or money or things of value received therefor, that may be found, in under or upon my undivided interest in the lands hereby and herein devised to my said son Roy, and he shall take said land subject to this provision.' (Statement of Facts, p. 9)

The will was probated and Roy duly qualified as Independent Executor. He brought this suit against petitioner, Edna Thompson, and his two sisters, Ethel and Hazel, and their husbands for a construction of the will and a declaratory judgment as to his rights, duties, and obligations under the will with regard to certain portions of the estate.

When the will was probated the petitioner renounced all rights thereunder and gave written notice to the respondents and to Roy Thompson that she would claim nothing under the will of her deceased husband, but that she would stand on her statutory rights and asked that the homestead be set aside to her and that she receive all royalties from the producing oil and gas wells. By admissions, stipulations and the judgments of the trial court and the Court of Civil Appeals all questions have been settled except the contentions discussed below and which we will now take up.

First: It is contended by Hazel and Ethel and their respective husbands (which contention has been sustained in both courts below) that the surviving widow, Edna, is entitled to no part of the oil runs from the 13 wells producing at the time of R. W. Thompson's death and at the time of the trial; because by the execution of the oil and gas lease in 1925 the Thompsons lost their right of possession to all of the oil, gas and other minerals in place, and severed the title to such minerals from the surface estate and passed absolute title thereto to the lessee to such minerals, and therefore, lost all homestead interest therein. It was further contended that by the execution of the division order whereby the Thompsons sold their royalty oil to Humble Oil & Refining Company, they parted with all title to the 1/8th royalty and had only a right to receive the money value of such royalty; that the Thompsons also lost all possessory rights to such royalty and had only a claim on personalty, and therefore, lost all homestead right in such royalty. It was therefore argued that the 'open mine' doctrine did not apply to this case, and that the surviving widow had no right to any oil or the proceeds therefrom, but same passed to Ethel and Hazel, under the Sixth paragraph of their father's will, free from any and all claims of the surviving widow, Edna, to the proceeds, or the right to receive the interest from such royalty.

The Court of Civil Appeals in its opinion, found in 230 S.W.2d 376, sustained the judgment of the trial court as to the rights of the surviving widow-the petitioner herein-and held she had a homestead interest in the surface of the land, but no interest of any kind or character in the oil royalties from the wells producing on such homestead; but gave these proceeds to the daughters, Ethel and Hazel.

We have carefully read all of the cases cited by the respondents to sustain their contentions as to the oil runs, and in our opinion, not one of them is in point on the proposition that when a husband and wife execute an oil and gas and other mineral lease on homestead lands, they have thereby and thereafter abandoned their homestead rights in the oil and gas and other minerals. We could distinguish each case, verbatim, but to do so would unnecessarily lengthen this opinion. The opinion of the Court of Civil Appeals is directly contrary to the law as laid down by the Supreme Court in the case of Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, 80 S.W.2d 741, wherein the authorities are exhaustively reviewed and it is held that the royalty interest under a lease similar to the one involved herein, (as well as under a lease purporting to be an absolute sale of all minerals to the lessee) is an interest in land, constitutes realty and is taxable to the lessor or other royalty owner. The same contention as to the nature of the royalty payable under the lease was made in that case as is made here. The Galveston Court of Civil Appeals held as they did in this case, and the Supreme Court...

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