168 S.W.2d 819 | Ark. | 1943
By complaint filed in the lower court the appellee, William E. Hodnett, executor and trustee under the last will and testament of Joseph Hodnett, deceased, who was a resident of Illinois at the time of his death, asked for a construction of this will as to the powers of the appellee thereunder: (1) to execute oil and gas leases upon certain lands in Lafayette county, Arkansas, owned by the testator at the time of his death, (2) to execute conveyances of minerals in and under said lands, (3) to execute deeds of conveyance covering said lands containing reservations of minerals thereunder, and (4) to sell and assign royalties payable under any oil and gas leases covering said lands; and the appellee also prayed that his action in executing certain oil and gas leases and conveyances of minerals and assignments of royalties upon these lands be approved by the court. All the living beneficiaries under the will of Joseph Hodnett were made parties defendant, and, as they were nonresidents of the state, service was properly had upon them by warning order, and a guardian ad litem was appointed for the minor defendants, Mary Layman, John W. Savage and Joseph H. Savage, who are grandchildren of the testator. All of the adult defendants entered their appearance, and the guardian ad litem filed an answer denying the allegations of the complaint. By the decree of the lower court it was found that the trustee had power under the will to sell and convey the minerals, including oil and gas, under the lands belonging to the trust estate, to convey said lands, reserving the minerals thereunder, to execute oil and gas leases, and to sell and assign the royalties and rentals *369 payable under such leases; and the court also ratified and approved the oil and gas leases and conveyances of interests in oil and gas produced under various portions of the lands owned by the testator, which had been theretofore executed by the trustee. The guardian ad litem for the minor defendants has appealed from this decree, but no appeal therefrom is prosecuted by any of the adult defendants.
The rule is well settled in this state that a court of equity has power and jurisdiction to construe a will where such will creates a trust. Davis v. Whittaker,
So far as we have been able to discover, the precise question involved in this case has not been passed upon by this court, but it was held in the case of Standard Oil Company of Louisiana v. Oil Well Salvage Company,
The Supreme Court of Illinois held in the case of Ohio Oil Company v. Daughetee,
Hodnett, in his will, expressly empowered his trustee "to sell all or any part of the real estate," and, since minerals underlying land constitute a part of the real *372 estate, and the execution of a lease for the purpose of exploring the land for minerals and for the removal thereof by the lessee is in effect a conveyance of part of the land, we conclude that the appellee was authorized and empowered to execute oil and gas leases covering any or all of the lands owned by his testator on such terms as he might deem proper, and to make disposition of the rentals and royalties arising therefrom.
It is a matter of common knowledge that it frequently becomes necessary for the owners of land to procure the drilling of wells oil their land in order to prevent drainage of valuable oil therefrom by wells located on adjacent lands. Our Legislature has recognized this necessity and has authorized guardians of minors and insane persons to lease, under certain conditions, the lands held by them in their fiduciary capacity for the purpose of having oil and gas wells drilled thereon. Sections 6264, 6265, 6266, 6280 and 6281 of Pope's Digest. In an act amending these sections (act 143, approved February 25, 1939) it was recited that this power of the guardians was necessary in order to prevent loss to their wards. Under Hodnett's will all of his land was devised to the appellee as trustee, and all management and control thereof was taken away from the testator's widow and family. We can find no reason, either in the language of the will, or in any of the circumstances surrounding the matter, to justify a construction of the will that would deprive Hodnett's estate of the manifest benefits to be derived from having this land explored for the production of oil and gas, and having the minerals suitably and in due time removed therefrom, under proper leases executed by the trustee.
The decree of the lower court was in all things correct, and is affirmed. *373