84 W. Va. 679 | W. Va. | 1919
The questions presented for decision upon this appeal arose in the prosecution of a suit instituted in the circuit court of ■ Clay County by the widow of J. L. Minner against the administrator of his estate, his heirs at law and several other defendants, for the purpose of causing to be laid out and •set apart as and for her dower interest a one-third part of a tract of land containing about 72 acres, of which her husband •died seized, and for the further purpose of ascertaining the -extent of her dower interest in the delay rentals, oil royalties, ■and gas well rentals which had theretofore been paid and are to be paid pursuant to the provisions of an oil and gas lease executed by her husband and herself during his lifetime. The lease, dated January 11, 1907, granted to J. M. Geary for a term of ten years, and as long thereafter as oil or gas is produced from the land leased and royalties and rentals ■paid therefor, the exclusive right to drill and operate for oil and gas upon said tract of 72 acres, upon the stipulated consideration of one-eighth oil royalties and an annual rental of $150.00 for each gas well, with the usual provision for delay
The only question presented involves the extent of the dower rights of the plaintiff in the delay rentals, oil royalties and gas well rentals paid and to be paid pursuant to the lease prior to the assignment of her dower in the land subject to the lease. We are not concerned at this time with any question respecting the assignment of dower in the land itseif, •or with the proper disposition of the royalties and rentals after such assignment. The court below in its decree found that plaintiff was entitled as dowress to ‘ ‘ one-third part of all moneys paid as delay rentals under the oil and gas lease oh said land up to the time of the completion of an oil or gas well on said land, and that thereafter she is entitled to the ■interest on the one-third of the ■ one-eighth oil royalty reserved * * * in said lease, and that she is likewise entitled to the interest on the one-third of all moneys paid * * * as gas well rentals on producing gas wells drilled under said lease.” As to the first proposition contained in the decree there is no cause of complaint, but plaintiff, however, insists that, because the. lease was executed during the lifetime of her husband, she is entitled to the full one-third of the royalty ■oil and gas well rentals instead of the interest only on such third, though no production was had within the lifetime of her husband.
' Until the death of her husband a widow’s dower is inchoate, but immediately upon his death becomes consummate. That, however, does not signify that she is vested with an estate in his lands. Until assignment of her dower the widow has merely a vested right, not an estate, to sue for and compel the setting aside to her, as her dower interest, of one-third of the real estate of which her husband died seized, and it is only upon such assignment that she acquires a vested estate in the assigned portion of his lands for the remainder of her life. Haskell v. Sutton, 53 W. 206; Darnell v. Flynn, 69 W. Va. 146, 150; Huddleston v. Miller, 81 W. Va. 357.
For the.purpose of • determining what portion of the yield from real estate of the deceased shall be termed issues and profits, and what shall be deemed part of the corpus of the<%, estate, it is usually'the custom to employ as a starting point the date of the death of deceased. Take, for example, a contest between a tenant for life and a reversioner or remainder-man. The former is entitled to the issues and-profits during his life, but must preserve intact the corpus of the estate. That is his only to enjoy, not to destroy. It is settled that, gas and oil, like other minerals, until brought to the surface, constitute part of the real estate in which they are found. Williamson v. Jones, 43 W. Va. 562; Wilson v. Youst, 43 W. Va. 826; Preston v. White, 57 W. Va. 278. The life tenant,
Applying these wells settled rules to the facts involved in this appeal, we find that the opening of the well was authorized by a valid lease executed by plaintiff and her husband before his death. Though the well was not drilled till after his demise, the yield therefrom, according to the authorities just cited, is considered part of the issues and profits of the land, and not a portion of the corpus of the estate which must be preserved for the remainderman or reversioner. Hence there seems no room for doubt that plaintiff was entitled to one-
Defendants, however, insist that plaintiff should receive only the interest on such one-third, and in support of their contention cite and rely on certain cases decided by this court which do restrict the widow or life tenant to interest on the one-third of the royalty oil and gas rentals. Wilson v. Toust, 43 W. Va. 826; Ammons v. Ammons, 50 W. Va. 390; Eakin v. Hawkins, 52 W. Va. 124; Stewart v. Tennant, 52 W. Va. 559; Headley v. Colonial Oil Co., 67 W. Va. 628. Before proceeding to a discussion of these cases, and as preliminary thereto, certain further principles should be noted. As was above stated, the life tenant, while enjoying the privilege of working old wells on the land, has no right to drill or open new wells which were ’not authorized to be 'opened at the beginning of his estate. His authority to remove that which is considered part of the real estate is limited to those wells which were opened or authorized by the preceding owner of the fee, the yield from such wells being deemed part of the issues and profits of the land, because made so in effect by the action of the preceding owner. All else belongs to the corpus of the estate and must be preserved intact. Hence it is waste for such tenant to open or authorize the opening of' new wells. Williamson v. Jones, 43 W. Va. 562. In ease he does so, the yield therefrom is not part of the issues and profit's, but a part of the corpus of the estate, and the proceeds or return derived from the sale of such product must be preserved and invested for delivery to the remainderman or reversioner upon the commencement of his estate. These proceeds now stand in the place of and represent that part of the corpus which has been removed.
This question is usually presented in the form of a joint lease by the life tenant and remainderman, reserving royalty or rent, and in such case the royalty or rental, being part of the corpus., is invested and preserved for the remainderman, but the interest thereon, being the yield therefrom, is paid to the life tenant, since the nature of his estate entitles him to
The case of Stewart v. Tennant, 52 W. Va. 559, is quite analogous to Wilson v. Youst, Ammons v. Ammons, and Eakin v. Hawkins, supra, but with this distinction, that, whereas in the last three cases the lease was executed by the life tenant and remainderman, in the ease first named the right to drill was conferred by the widow before assignment of her dower, and hence before she had received any definite or vested estate for life, and by ten of the twelve reversioners. There, as in the ease at bar, the widow’s dower was consummate but not as- . signed, and the court held that the vendee, as the owner of her dower, was entitled, under section 8, ch. 65. Code, and pursuant to the authority of the three cases last cited, to the interest on one-third of the royalty from the wells. An attempt was there made to differentiate between a situation where dower had not been assigned, as in that case, and where the life state was vested, but the court (p. 576) definitely declined to recognize any such distinction as valid. The only difference between that case and this is that the well there involved was not drilled or authorized to be drilled before the death of the husband, while here it was so authorized. For that reason, in the former the issues and profits to which the widow or those holding her dower right were entitled consisted of the interest on one-third of the royalty, while in this case they should include the one-third of the royalty itself, for here it is not part of the corpus, but authorized to be removed by the preceding owner of the fee and hence by him made an issue and profit of the land.
These cases relied on by defendant all deal with leases made ■after the death of the holder of the preceding estate of inheritance by a life tenant or by a widow before assignment of •dower, who at the time had no authority or right to drill new ‘wells, and could not by a lease-convey a greater right than they had. Hence the royalty oil and gas rentals represented the corpus of the estate and belonged ultimately to the heirs, the life tenant or widow being entitled only to the interest therefrom. But in this case the well drilled after the husband’s death pursuant to the terms of a lease made during his life is deemed an “open well’ as of the date of his death, ‘the royalty from' which is part of the issues and profits of the land. Koen v. Bartlett, 41 W. Va. 559; Alderson’s Adm’r v. Alderson, 46 W. Va. 242; Section 8, ch. 65, Code. See also Campbell v. Lynch, 81 W. Va. 374, 384-386.
• For these reasons our order will reverse the decree complained of in so far as it fails to award to plaintiff the full ■one-third of the oil royalties and gas rentals, and otherwise .'affirm it, and remand the cause for further proceedings consistent with this opinion.
Reversed in part. Affirmed in part. Remanded.