7 S.W.2d 140 | Tex. App. | 1928
Fannie S. Frame, for herself and as guardian of the estate of her minor child, Betty Lu Frame, brought this action against W. W. Whitaker and G. W. Whitaker to cancel and annul a certain oil, gas, and mineral lease of a certain tract of land containing 328.25 acres, executed by D. A. Frame and appellant, Fannie S. Frame, his wife, to appellees and C. V. McBeth, of Tulsa, Okla., the latter having transferred his interest in the lease to W. W. Whitaker. Appellant alleged a failure to comply with the lease contract on the part of appellees which was made the basis of the cancellation sought by her. The court sustained a plea in abatement and to the jurisdiction after the evidence had been adduced, and after the same pleas had been overruled before the evidence was heard, and the cause was dismissed. A motion by appellees for an instructed verdict was overruled, of which action complaint is made in this court.
It is alleged in the petition that Fannie S. Frame is the guardian of her minor daughter, Betty Lu Frame, that the mother owns five-sixths of the property and the minor the remaining one-sixth, upon which the lease was executed by David A. Frame and Fannie S. Frame, on October 17, 1918, to the Whitakers and McBeth. It was alleged that David A. Frame died on May 1, 1925, leaving a will which was duly admitted to probate, in which the land in question was bequeathed to his wife, appellant herein, but that, the said minor having been born after said will had been executed, she was entitled under the laws of Texas to a one-sixth interest in the land. The son of a former marriage, E. W. Frame, was appointed independent executor of the estate of his father.
Evidence was heard in testing the plea in abatement and to the jurisdiction of the court. Appellees filed a general demurrer and twenty-two special exceptions to the petition and an elaborate answer covering some ten pages of the transcript. The exceptions were overruled.
In the plea in abatement it was alleged that only a life estate with power of alienation by will was bequeathed to Fannie S. Frame by the will of David A. Frame, *142 deceased, that the will was probated, that subsequent to the making of the will a codicil thereto was made, but said codicil was not probated, that the codicil has been sued on as a contract by appellant against E. W. Frame, executor of the will and is now pending. In the second paragraph of the plea in abatement it is alleged that the independent executor, knowing all the facts surrounding the oil lease, refused to join in the suit, although he, if any one, is the proper person to prosecute this suit. It was also alleged that the appellant was seeking to oust the county court of its jurisdiction and deprive the independent executor of his jurisdiction. It was alleged that the oil lease was made after the will had been made by David A. Frame, and such lease had the effect of taking the minerals in the land out of the scope and effect of the terms of the will, and so far as such minerals were concerned the will was revoked and adeemed, and that there was a defect as to parties plaintiff.
Under the provisions of article 3436, old Nos. 3362 and 1995, a person may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will and the return of an inventory, appraisement, and list of claims of the estate. That constitutes what is known in opinions of courts and among attorneys denominated an "independent executorship"; and provision may be made in a will that no bond shall be required of the executor, although not so designated in the statutes. Dwyer v. Kalteyer,
The life estate, with power of disposal by will, was a specific devise, and it was evidently the intention of the testator to vest title in the devisee, superior to any other devise, and when the will was probated it became the property of appellant and not subject to any action on the part of the executor, unless it be as to the oil lease. No debts were shown to exist against the estate unless the note given by David A. Frame to his wife could be held to be a debt. In this connection it may be said that the note given by David A. Frame to his wife, in 1922, had none of the earmarks of a codicil to a will. It was not shown to have been entirely in the handwriting of the testator, and was not attested by two witnesses. The same solemnities are required as to a codicil as to the original will. Magee v. Magee (Tex.Civ.App.)
There is no reference to the will in the note, and, while it is provided that it shall be paid six months after the death of the testator, there is nothing to indicate that the maker intended it to be made a part of his will On the other hand, it seems to have been the desire of the maker that it should not be a charge on his estate, for it is provided that it should not constitute a lien against the estate. In the case of Simon v. Middleton,
At the conclusion of appellant's testimony appellees moved the court to instruct a verdict for appellees, but the plea to the jurisdiction and plea in abatement were again taken up, the former order overruling such pleas set aside, the pleas sustained, and the cause dismissed. After the order of dismissal the court overruled the motion to instruct a verdict for appellees, and to that action they excepted.
It is provided in article 8285, Revised Statutes of 1925, a substantial re-enactment of article 7859, Statutes of 1914!
"No will in writing, made in conformity with the preceding articles, nor any clause thereof *143 or devise therein, shall be revoked, except by a subsequent will, codicil or declaration in writing, executed with like formalities, or by the testator destroying, canceling or obliterating the same, or causing it to be done in his presence."
In order to revoke a will, the statutory methods must be followed. Morgan v. Davenport,
"If oil or gas wells exist on a tract of land and a person be given a life estate therein, he is entitled to the oil and gas, and he may maintain an action in equity for an accounting of the royalties due him" (citing Woodburn's Estate,
The owner of the surface is the owner of the gas and oil beneath it to the extent of his interest, and when appellant obtained a life estate, under the will, to the land, she became the owner of an interest in the minerals beneath its soil when her life estate accrued. This rule would not include the royalties which became due before the life estate in the land vested in her. Those royalties were a part of the estate, and as such would be under the management and control of the executor.
The case of Swayne v. Lone Acre Oil Co.,
It follows from our conclusions hereinbefore stated that Mrs. Frame had no power or authority to institute a suit for the royalties accruing before the death of her husband, because they are a part of his estate to be distributed among the heirs, and that she had no right to cancel the lease on account of matters happening before the death of her husband. The independent executor alone could perform that duty or exercise that power. If there should be a breach of the lease contract after she entered into her life estate and the executor should refuse to join her in enforcing her rights, she could prosecute the suit.
The court having properly ruled that appellant was not authorized to institute the suit, a verdict for appellees could not be instructed.
The judgment is affirmed. *144