46 W. Va. 242 | W. Va. | 1899
This was a suit in equity instituted in the circuit court of Greenbrier County by S. L. Price, administrator with the will annexed of Mary P. Alderson, against J. C. Aider-son and others. The object of the bill seems to be to obtain a proper administration and distribution of the estate of said Mary Alderson. One of the principal questions presented by the pleadings is whether J. C. Aider-son, as the husband of said Mary P. Alderson, is entitled to curtesy in the estate left by his wife. It appears that said J. C. Alderson and Mary P. Alderson were married in 1874, and that she departed this life on the 15th of August, 1895, having disposed of her property, consisting principally of real estate, to various relatives, to the exclusion of her husband. A portion of said real estate consists of an interest in certain farms in Greenbrier Count}', and certain coal and timber lands in Fayette, Raleigh, Brax-ton, and Clay Counties. It is alleged that no mines had been opened at the time of Mrs. Alderson’s death, hut it appears that during her lifetime a lease was executed by herself and husband, together with other parties interested therein, to one James Laing, of Raleigh County-, W. Va., of a tract of coal land, containing five hundred and twenty-five acres, situated in Fayette County, for the term of twenty-one years. The circuit court held that said J. C. Alderson was entitled to curtesy in said coal mine and farming lands, and said administrator obtained this appeal.
The lease above mentioned was executed July 22, 1895, and said Mary Alderson, as stated above, died August 15, 1895. It is contended by counsel for appellant that J. C. Alderson is not entitled to curtesy in any of the lands of ■which his wife died seised, for the reason that at the time of the marriage, in 1874, the law required, as a condition precedent to entitle the husband to curtesy in his wife’s estate, the birth of issue and the death of the wife, and that, although the statute was so changed by the acts of 1882 as to dispense with the birth of issue as a condition precedent, aqd to read thus (Code, c. 65, s. 15): “If a married woman die seized of an estate of inheritance in lands, her husband shall be tenant by the curtesy in the
It is further contended by counsel for appellant that J. C. Alderson was not entitled to curtesy in his wife’s estate because the married woman’s act of 1893, chapter 3, as amended in its first section by chapter 43 of the same acts, places the married woman, in reference to her estate of inheritance, in the same position she occupied at common law when an estate was settled on her with jiower of disposition by will, or in the exercise of a power of appointment, and that, Mrs. Alderson having by will disposed of her whole estate, her. husband is barred of his curtesy. The case of Kiracofe v. Kiracofe, 93 Va. 591, (25 S. E. 601), is relied upon to support this contention. The syllabus in that case reads thus: “A married woman owning'an equitable separate estate in fee may, unless prohibited by the instrument creating it, devise the same,
This Court held in Austin v. Brown, 37 W. Va. 634, (17 S. E. 207), that: “Where a married woman, not living separate and apart, but with her husband, undertook, by deed dated April 20, 1878, to sell and convey a certain tract of land, part of her real estate, to two of her sons, without her husband joining in such deed, said pretended deed was wholly ineffectual to devest the grantor of her ownership of such land, and did not pass any interest therein, legal or equitable, to the said grantees. * * * The said grantor having died intestate, her other heirs at law, and the surviving husband, as tenant by the curtesy, have a right to such deed set aside and removed as a cloud upon her title, — -the former, as remainder-men fee, according to their interests, subject to the life estate of the surviving husband.” See, also, Cunningham v. Cunningham, 30 W. Va. 599, (5 S. E. 139), where it is held that, under the statute in force in 1887, curtesy cannot be barred by a provision of the will of a wife, even when( it is expressed to be for that purpose, but such bar can be made effectual only by agreement between husband and wife inter vivos, See, also, Bierne's Ex’rs v. Bierne, 33 W. Va. 663, (11 S. E. 46). While it is true that the wife, in this case, devised her entire separate estate to relatives, to the exclusion of her husband, it is also true that at the time she did so the statute had removed the important condition precedent to the right of curtesy in the husband, to-wit, the birth of issue, and at the death of the wife said de-
We come now to the consideration of the question as to the exent of the life estate of the husband, and as to Alder-son’s right to the rents or royalties of coal mines in Fay-ette County which were unopened at the time of the wife’s death, in August, 1895. All the leading authorities concur in asserting the general principle that the life tenant may work mines that were opened by the former owner of the fee. See 1 Kerr, Real Prop. p. 494, § 583; Crouch v. Puryear, 1 Rand. (Va.) 258; Washb. Real Prop. 208. Can we say this coal mine was opened during the lifetime of Mrs. Alderson? On the 1st of August, 1895, she joined in a lease to one James Laing, conferring on him the exclusive privilege of mining coal on the land therein described. Was this an opening of the mine? This question was before this Court in Koen v. Bartlett, 41. W. Va. 560, (23 S. E. 666), in which case it was held that “the tenant of an estate for life, unless restrained by covenant or agreement, has the right to the full enjoyment and use of the land, and all its profits, during his estate therein, including mines of oil or gas open when his life estate begins, or lawfully opened or worked during the existence of such estate.” President, speaking for the Court in that case, said: “A mine lawfully leased to be opened is an open mine, within the reason of the rule as laid down infhese cases; and when lawfully opened and worked, as in this case, during the time the freehold estate of the life tenant continues, the profits issuing therefrom, thus lawfully severed and produced, belong of right to him.” So, in Kier v. Peterson, 41 Pa. St. 357, the court holds that: “If mines are already opened, or if the lease permits their being opened, it is not waste for the tenant to work them, even to exhaustion. Nor would it be waste to open new shafts or pits to follow the same vein.” See, also, Eley’s Appeal, 103 Pa. St. 300, in which the executors were authorized, with the consent of six-tenths of the owners, to lease the coal underlying a tract, which they did; and it was held that “the power given the executors to lease or sell the coal, with the consent of six-tenths ofthe owners, gave the life tenants the same rights over unopened mines that
The cause was referred to a commissioner, who made his report, which was excepted to by J. C. Alderson upon several grounds, — among them, that he was not reported as a tenant by the curtesy of the lands of which Mrs. Al-derson died seised. On November 23, 1897, the cause was heard, the exceptions to said commissioner’s report were sustained, and it was held that J. C. Alderson was entitled to an estate by the curtesy in all the real estate of which his wife died seised of an estate of inheritance, except a tract situated in Greenbrier County, known as the “Andrew Stuart Farm,” of about six hundred and ninety acres; that he was entitled to curtesy only to the extent of the interest of his wife therein after subjecting said interest to the payment of that portion of the purchase money for which it is first liable, which was paid by Margaret L. Price and James S. Price, joint owners with Mary P. Al-derson of said farm, and also holding that J. C. Alderson was entitled to a life estate by the curtesy in said M. P. Alderson’s interest in the mineral lands leased to James Laing by deed of lease dated August 1, 189S, and decreed accordingly. Having considered the points of error relied on, my conclusion is that the decree complained of must be affirmed, and the cause remanded for further proceedings to be had therein. This affirmance is without prejudice to any oí the creditors hereafter introducing proper proof to sustain their debts included in the commissioner’s report, to which the exceptions of J. C. Alderson were sustained for want of sufficient proof.
Affirmed.