White v. Blackman

• Decision Date: 22 December 1942
• Docket Number: No. 5999.,5999.
• Citation: 168 S.W.2d 531
• Parties: WHITE et al. v. BLACKMAN.
• Court: Texas Court of Appeals

168 S.W.2d 531

WHITE et al. v. BLACKMAN.

No. 5999.

Court of Civil Appeals of Texas. Texarkana.

December 22, 1942.

Rehearing Denied February 11, 1943.

Appeal from District Court, Gregg County; Earl Roberts, Judge.

Suit by Bennie Blackman, widow of J. M. Blackman, against Allie B. White, executrix and others, to recover and set aside to the plaintiff a homestead right and to recover oil and gas royalties. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

Hurst, Leak & Burke, and E. H. Murphy, both of Longview, M. H. Barton, of Overton, Frank C. Bolton, of Henderson, and A. W. Christian, of Fort Worth, for appellants.

Bibb & Bibb, of Marshall, and Cecil Storey, of Longview, for appellee.

WILLIAMS, Justice.

This is a suit by Bennie Blackman, widow of J. M. Blackman, against appellants, Allie B. White and others who are adult married daughters of J. M. Blackman and Mary, his first wife, in which Bennie seeks to recover and have set aside to her a homestead right in a 125-acre tract and in an undivided 1/2 interest in a 36-acre tract. She also sought a recovery of all the oil and gas royalties and proceeds therefrom which had accrued subsequent to the death of J. M. Blackman and which would accrue so long as she continued to use and occupy said properties as her homestead. The larger tract was the separate property of J. M. Blackman, and the small tract was the community property of J. M. Blackman and Mary, his first wife, who died intestate in 1932. Prior to Mary's death, she and J. M. Blackman executed oil and gas leases covering both tracts. J. M. Blackman married appellee in 1933. No children were born to this marriage. J. M. Blackman died in 1940, leaving a will which was duly probated and under which he bequeathed above lands to his four daughters, appellants here. Other provisions of the will are to be observed later.

It is without controversy that the larger tract was the homestead and so occupied by J. M. Blackman and Bennie, his wife at the time of his death. The court's finding, recited in the judgment, that the 36 acres also was a part of the homestead at the time of his death is in dispute. The latter finding will not be disturbed for reasons later herein stated, and in the discussion to follow all the larger and the 1/2 undivided interest in the smaller tract will be treated as the homestead of J. M. and Bennie Blackman at his death. Prior to and at the time of his death there were thirty-five producing oil wells on the larger and six on the 36-acre tract. The amount of the proceeds of royalty oil received by the administratrix and produced subsequent to J. M. Blackman's death and the amounts held in suspense by the oil companies not being in dispute were stipulated.

A trial was had to the court. The 125-acre tract and a 1/2 undivided interest in the 36 acres was impressed with a homestead estate in favor of Bennie, the surviving wife. The judgment entered further decreed to appellee a recovery of all proceeds of oil and gas royalties produced since the death of J. M. Blackman from the larger tract and 1/2 the proceeds of such royalty oil produced from the 36-acre tract, together with all the proceeds of oil and gas royalties that may be produced during her natural life, or so long as Bennie elects to use above lands as her homestead.

Under the 4th point, which substantially embraces the first five points presented, appellants assert that the trial court erred in "awarding Bennie Blackman, as the widow of J. M. Blackman, deceased, all of the royalties from the homestead of J. M. Blackman, — the plaintiff being entitled only to the amount of the interest, during her lifetime so long as she may occupy the land as a homestead, on the proceeds of such royalties invested at interest." The "open mine" theory is invoked by appellee to support the judgment entered.

The homestead rights of the survivor in the separate estate of the deceased who died testate is here involved. With respect to the homestead interest in land created by Secs. 51 and 52 of Art. 16 of the Constitution of Texas, Vernon's Ann.St. and Art. 3501, R.C.S. of 1925, the Commission of Appeals in Sargeant v. Sargeant, 118 Tex. 343, 15 S.W.2d 589, 593, adopted by our Supreme Court, said: "It is clear to us that the homestead right in land contains every element of a life estate, and is therefore at least in the nature of a legal life estate, or, in other words, a life estate created by operation of law."

In Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 743, 69 L.R.A. 986, 8 Ann.Cas. 1117, our Supreme Court held that the common law rule with respect to the incidents of a life estate were applicable to the rights of the owner of a legal life estate in 1/3 of the land of the intestate created by virtue of Art. 2571, R.C.S. of Texas. Involved there was royalty oil from wells developed and produced subsequent to the creation of a legal (statutory) life estate. A recovery of such royalty was denied, giving the reason that "the right of the life tenant is to the use, and not to the corpus, of the estate."

"The rights of owners of life interests of realty in minerals are predicated primarily upon doctrines which have grown up from the common-law rules of waste." 33 Am.Jur. p. 829. "In accordance with an ancient principle which accords a life tenant the issues and profits of real property in which a life estate has been granted, * * * a legal life tenant * * * may continue to work or have operated (oil wells) mines or mineral deposits that were open when the life interest commenced, or to receive the proceeds (royalties) of such operation." 33 Am.Jur. p 829, Sec. 328, p. 835 Sec. 331; Lawley v. Richardson, 101 Okl. 40, 223 P. 156, 43 A.L.R. 803, and authorities collated on page 813; Summers Oil & Gas, pp. 618, 619; 31 C.J.S., Estates, p. 49 § 42. This rule being based upon the theory, as expressed in 2d Blackstone's Commentaries, p. 282, "it has now become the mere annual profit of the land," or as stated in Summers Oil & Gas, p. 618, 619, "the life tenant is doing no more than claiming the yearly profits of the land." See Summers Oil & Gas, Perm.Ed., § 613.

The rights of the widow to the corpus (royalty) and not to the interest on the royalty, was recognized in Petrus v. Cage Bros., Tex.Civ.App., 128 S.W.2d 537, 538, writ refused. It is there stated: "Mrs. Petrus, upon the death of her spouse, took an estate for life, by operation of the law, in that part of the homestead which descended in fee, upon the death of the father, to their children, appellants herein, and by virtue of her said estate therein thus acquired, she had the right to continue to take caliche from the mine which had been opened prior to and was being operated at, the time her life estate came into existence * * *. The right to operate may be exercised by the surviving spouse in person, or through any other agency selected by her."

It appears that above decision necessarily was predicated upon the theory that the royalties from the mines became "annual profit of the land." If so, such basis is not in harmony with the settled law of this state that oil and gas in place is a part of the corpus of the property itself and the "royalties" received therefrom are not "rents" or "income" or "profits." State v. Hatcher, 115 Tex. 332, 281 S.W. 192; Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021; Stephens v. Stephens, Tex. Civ.App., 292 S.W. 290; Sheppard v. Stanolind Oil & Gas Co., Tex.Civ.App., 125 S.W.2d 643, 647; 31 T.J. p. 518. To limit the right of the surviving widow here to the use of the corpus of the royalty, that is, to the interest on the royalty derived from the wells, for her natural...