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court held that the plaintiffs in error were garded of such authority as to fix the rule. entitled not only to a one-eighteenth inter. So in other instances rules established in est for life in the land, but "also to one England were not regarded as of controleighteenth of the net proceeds of the oil ex- ling authority in this state, for the reason tracted and marketed, after deducting ex- that it was thought that the conditions penses of producing and marketing,” and here were so different from those existing gave judgment as under the fifth para- in England that, if the conditions in that graph of the stipulation. The court of country had been the same as in this, the civil appeals, however, affirmed the hypoth- ruling there would have been different. At esis contained in tRe fourth paragraph, and all events, since the adoption of the comgave judgment under the stipulation in ac mon law the courts of this state have adcordance therewith, namely, for one-eight- hered to the decisions of the English courts eenth interest in the land for the life of with as much strictness as the courts of Mrs. Snow, and for $300.

the other states who have the common law, Our statute of descent and distribution not by adoption, but by inheritance, so to declares that, "where any person having speak. In order to illustrate the strictness title to any estate of inheritance, real, per- in which we have adhered to the common sonal, or mixed, shall lie intestate as to law, we need refer only to the “rule in such estate, and shall have a surviving hus- Shelley's Case,"--a rule which has been exband or wife, the estate of such intestate pressly repealed by a majority of the states shall descend and pass as follows: 1. If of this Union in which the common law the deceased have a child or children, or prevails, perhaps in every one in which the their descendants, the surviving husband or matter has been of sufficient importance to wife shall take one third of the personal es- call the attention of its legislature to it; a tate, and the balance of such personal es- rule founded upon the peculiar policy of tate shall go to the child or children of the the real-estate laws of England, and one by deceased and their descendants. The sur reason of its extreme technicality well calviving husband or wife shall also be enti- culated to thwart the clear intention of detled to an estate for life, in one third of the visors and grantors of real estate. Yet our land of the intestate, with remainder to the courts, ever since the decision in Hancock child or children of the intestate and their v. Butler, 21 Tex. 804, have followed the descendants." Rev. Stat. 1895, art. 1689. rule without question, because it was The question is, What under this provision, rule of the common law; the only question are the rights of the life tenant in the oil discussed being whether the rule was appliunderlying the land when no attempt had cable to the case in hand. We conclude, been made to extract it at the time of the therefore, that we may safely assume that descent cast? It is strenuously insisted on since the adoption of the act of January behalf of plaintiffs in error that the com- 20, 1840, the common law is as much the mon-law rules as to the incidents of life es rule of decision in this state as in those tates do not apply to is statute. But we states in which it was the law from the bedo not concur in the proposition. The stat. ginning of their political existence. ute of January 20, 1840, entitled "An Act But it is also insisted that, since there to Adopt the Common Law,” etc., reads as was no such life estate created by the operafollows:“The common law of England (so tion of the common law as the life estate far as it is not inconsistent with the Con- provided for under our statute of descent stitution and laws of this state) shall, to- and distribution, the common-law rule does gether with such Constitution and laws, be not apply to the estate in question. It is the rule of decision, and shall continue in true that the life estates which were deforce until altered or repealed by the legis- volved upon the husband and the wife relature.” Rev. Stat. 1895, art. 3258. Since spectively under the common law were the the passage of that act, which has ever tenancy by the curtesy on part of the hus-since remained the law, and is now incorpo- band and in dower on part of the wife. rated in our Revised Statutes as article The husband, when he became a tenant by 3258, probably few cases have been decided the curtesy, had a life estate in all the lands in this court in which the rules of the com- of the wife. The dower had to be assigned mon law have not been expressly or im- by the heir before the estate of the widow pliedly applied in the determination of one became fixed to her third. But it does not

more of the questions involved. In follow that because the life estate provided some instances it may be that the law as by our statute has no exact exampler in the announced by the English courts has not common law the quality and incidents of been followed; not for the reason, however, life estates at common law do not apperthat this court felt at liberty to depart tain to it. At common law there were two from the rule of the common law, but be classes of life estates: First, conventional cause the decision or decisions were not re.

life estates or those which were created by


contract; and, second, those which came in- | tion under discussion is concerned, is to be to existence by operation of law. The for- considered like iron, coal, lead, or other solmer were not impeachable for waste unless id mineral substances. Such authorities as expressly made so by the conveyance.

The we have been able to find sustain our view reason assigned for this rule is that it is of the effect of our statute. In reference presumed that, if the grantor intended to to the descent of real estate where the huslimit the enjoyment of the estate, he would band or wife dies, leaving children, the stathave expressed his intention in the deed. ute of Pennsylvania is the same as that of As to the second class of life estates, on Texas; that is to say, the surviving spouse the other hand, they are, as a general rule, takes a third interest for life in the land or impeachable for waste; that is to say, the lands of the deceased. In the case of the tenant for life cannot use the property for Westmoreland Coal Co.'s Appeal, 85 Pa. 344, any purpose which would result in an 11- the coal company, who claimed under a jury to the inheritance, save those only to woman who had inherited a third interest which it had been devoted at the time the for life in the land from a deceased husband, life estate came into existence. The rights was guilty of waste in opening mines upon a of a tenant of an estate tail after possibil. parcel of land upon which none had been ity of issue extinct may be an exception opened at the death of the husband. In to the general rule. As is said by Mr. the case of Franklin Coal Co. v. McMillan, Cruise: "He is dispunishible for waste, be- 49 Md. 549, 33 Am. Rep. 280, a life estate cause he continues in by virtue of the liv. in the land had been devised to a Mrs. Mcery upon the estate tail; and, having once Millan, with the remainder to her children. had the power of committing waste, he She conveyed her right in the land to the shall not be deprived of it by the act of coal company. Prior to the death of the God.” 1 Greenleaf's Cruise, Real Prop. p. testator the coal had been mined for domes143. On the other hand, speaking of tic uses, but had never been mined for marwaste Mr. Washburn says: “This restric-ket. In the suit by the children against tion existed at common law in respect to the coal company for damages for waste in estates in possession of tenants in dower mining the coal it was held they were enand curtesy, because, as these were created titled to recover. A like rule was made in by the law itself, it was thought that the the case of Gaines v. Green Pond Iron Min. law was bound to protect the reversioner or Co. 32 N. J. Eq. 86. There it was ruled remainder-man from being thereby injured. that the mining company who held the title But where the estate of the tenant was

of a life tenant was liable for waste in mincreated by act of the parties it was held, ing the land. Presumably the life tenant that, if the grantor or lessor failed to pro- acquired her estate by operation of law, tect the estate by stipulations in his deed but that matter does not clearly appear or lease, the law was not bound to supply from a report of the case.

That case upon the omission.” I Washb. Real Prop. p. 146. appeal was reversed by the court of errors The reason for excepting the tenant in tail and appeals of New Jersey, but upon anafter possibility of issue extinct from the other point. 33 N. J. Eq. 603. The rulgeneral rule applicable to life tenants whose ing of the chancellor upon the question estates have been created by operation of whether the life tenant was impeachable for law seems rather technical, and does not waste was neither questioned nor decided. apply to the life estates provided for in our In the case of Seager v. McCabe, 92 Mich. statutes. On the other hand, the reason 186, 16 L. R. A. 247, 52 N. W. 299, are found for holding the tenant by the curtesy or in expressions not in accordance with our dower impeachable for waste does so apply. views. But it seems to us that they were and with equal force. We conclude, there- not called for in the decision of that case. fore, that it was the intention of the legis. The statute of Michigan gives to the wife lature, in enacting the statute in question, the “use during her natural life of one to make the estate therein provided for third of the lands whereof her husband was subject to impeachment for waste.

seised” during marriage. The opinion in It is too well settled to require a citation the case cited shows that the land in conof authority that, while it is not waste for troversy was valueless for agricultural or a tenant by the curtesy or a tenant in dow- lumbering purposes. It contained a bed of er to work an open mine, it is waste to open iron ore, and that was practically the only a new mine; in other words, the tenant of use of which it was susceptible. It seems a life estate punishable for waste has no to us that under the Michigan statute it right to remove the minerals, when the land was not difficult to reach the conclusion had not been devoted to mining purposes that the widow, under the circumstances, before the creation of his estate. Oil, be was entitled to mine the ore, without refer. fore its extraction, is a mineral, and is ence to any rule of the common law. But part of the land, and, in so far as the ques. | in no aspect of this case do we think that

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the plaintiffs in error have cause of com- the principal to the remainder-man upon the plaint of the judgment of the court of civil termination of his estate. In the case of appeals. The right of the life tenant is to Clift v. Clift, 72 Tex. 144, 10 S. W. 338, the use, and not to the corpus, of the es Mrs. Clift had a one-sixth interest for her tate; and where his title is in an undivided life in a town lot, and this court adjudged interest, and not in the whole of the land, that the property should be sold, and that and a sale is ordered for partition, his right from the proceeds "there should be paid to in the proceeds is not a part proportionate Mrs. Clift a sum equal to a one-sixth into the undivided interest in which he has terest for life in the proceeds of the land the life estate, but to the interest on that proper.” Since the proceeds of the sale part as long as the life estate may continue must be money, and the value of the use of to exist. In speaking on this subject in the money is determined by the interest upreference to the remainder-men, Chief Jus on it, it follows that this recognizes the tice Marshall, in Herbert Wren, 7 same right in the life tenant which was anCranch, 380, 3 L. ed. 378, says: “They nounced in the cases before cited, but lays have a right to insist that, instead of a down a different rule for securing that sum in gross, one third of the purchase right. As to this last matter the rule anmoney shall be set apart, and the interest nounced by this court may be questionable, thereof paid annually to the tenant in dow- but, so far as we can now see, and so far er during her life.” The rule thus stated as the writer of this opinion can recollect, is followed in North Carolina. Ex parte that point was not mooted in that case." Winstead, 92 N. C. 703. The same prin Since we hold that the plaintiffs were ciple is announced in Alabama. McQueen not entitled absolutely to any part of the v. Turner, 91 Ala. 273, 8 So. 863; Kelly v. cil—that is to say, to the corpus of oneDeegan, 111 Ala. 152, 20 So. 378. As to eighteenth interest—it follows that under securing the life tenant in the use of the the stipulation as to the judgment to be part of the proceeds in which he has an in- rendered the judgment of the Court of Civi! terest the North Carolina court follows the Appeals should be affirmed, and it is asrule indicated by the remarks of Chief Jus- cordingly so ordered. tice Marshall above quoted. The Alabama court, however, permits that part to be Petition for rehearing overruled June 22, paid to him upon his executing a properly 1905. secured refunding bond conditioned to pay 69 L. R. A.



SHOWING the Changes, Progress, and Development of the Law during the First Quarler of the Judicial Year Beginning with October 1, 1905, Classified as Follows:





Eminent domain.

tion of works of internal improvement, nor See also Parks.

to grant any aid thereto which shall involve

the faith or credit of the state, nor make The right of a municipality to compensation for the value of sewer and water pipes any appropriation therefor. (Md.) 914.

Taxes. owned by it, and laid under streets which are taken by the Federal government, under A statute making all the property of corits power of eminent domain, for an en. porations engaged in maritime commerce or tirely different use, is sustained. (C. C. navigation taxable only at the place desig. A. 1st C.) 723.

nated in their charters as their general The power to separate the right to fish office for business is held to violate a conin an inland lake, in New Jersey, from the stitutional provision requiring a uniform ownership of the lake, and take it under the rate of taxation. (Mich.) 431. power of eminent domain for the benefit of The right of the legislature to provide the public, is denied. (N. J. Err. & App.) for the valuation and assessment of the 768.

property of railway companies by one asA farmer who supports his family from sessing body, and for ascertaining the value the products of the farm, and for many of the whole of such property of any one years has sold his surplus in a neighboring railway corporation subject to taxation in town, is held to have an established busi- the state as a unit, or as an entirety, and to ness within the meaning of a statute au- distribute the value as thus found over the thorizing the construction of a water-supply main line or track of such railway company, reservoir upon the site of the town, and and to the different taxing districts, municproviding compensation for any established ipalities, etc., on a mileage basis, is susbusiness thereby destroyed, although he has tained. (Neb.) 447. no regular route or customers, or anything

Schools. in the nature of good will. (Mass.) 599.

Offering a prayer at the beginning of Bankruptcy.

school each day, which does not represent A claim for unaccrued rents is held not any peculiar view or dogma of any sect or to be a fixed liability, which may be proved denomination, is held not to bring a pubin bankruptcy proceedings. (C. C. A. 8th lic school within a provision of the ConstiC.) 719.

tution that no portion of any fund or tax That a full discharge of individual lia- raised for educational purposes shall be bility of one partner on a firm debt may be used in aid of any sectarian or denominahad in bankruptcy proceedings concerning tional school. (Ky.) 592. that partner only, is decided. (Minn.) 771.

Internal improvements.

A receiver of a Federal court in charge Appropriations to aid counties in the of a railroad company, who, by statute, is construction of public roads are held not required to manage and operate the propto be forbidden by a constitutional provision erty according to the requirements of the that the general assembly shall not have valid laws of the state in which it is situpower to involve the state in the construc- / ated, in the same manner as the owner

(PUBLIC, OFFICIAL, AND STATUTORY MATTERS.) thereof would be bound to do, is held to

Requiring license of doctor. be subject to any rule prescribed by the An ophthalmologist, who prefixes to his state, imposing on railroad corporations a name the letters “Dr.” on his sign, and on liability for the negligence of employees notices in which he undertakes to correct having superior authority over other em certain diseased conditions by the fitting ployees. (C. C. A. 6th C.) 705.

of glasses to the eyes, is held to come within Attorneys.

the terms of a statute providing that, when A license to practise law is held to be

a person shall append the title “Dr.,” in a properly revoked, where it is secured by medical sense, to his name, he shall be refraudulent concealment of the fact that the garded as practising medicine, within the plaintiff has recently been convicted of em- meaning of a statute which requires a libezzling funds from a client in another cense as a condition precedent to doing so. state, although he has been pardoned for (S. D.) 504. the crime. (II.) 701.

Storage of oils.
Expelling member of legislature.

An ordinance prohibiting the storage of

refined and other explosive oils within the The power of the court to supervise the

corporate limits is held not to be unreason. exercise, by the legislature, of its constituable. (La.) 276. tional power to expel a member, is denied. (Cal.) 556.

Vumbering automobiles.

Power to require the registering and numThe power of the legislature to authorize bering of automobiles is held to be cona municipal corporation to condemn, for ferred upon a city council by charter aupark purposes and boulevards, land near to, thority to control, prescribe, and regulate but outside of, its corporate limits, is sus- the manner in which the streets shall be tained. (Tenn.) 750.

used and enjoyed. (Mich.) 345. Forbidding the use of land near a park

Use of voting machines. or park way for advertising purposes is held

A statute permitting the use of a voting to amount to a taking of it for public use,

machine is held not to contravene a constifor which compensation must be made. tutional requirement that all votes at elec(Mass.) 817.

tions shall be given by ballot. (Mich.) Public improvements; assessments.

184. A statute providing for the cleaning of drainage ditches, and the assessment of the

Employers' liability act. costs thereof according to benefits upon the

The employers' liability act, changing parties along its line who were assessed for the law as to the defense in case of neglithe cost of its original construction, is held gence of fellow servants of corporations, is not to take private property for public use

held to be constitutional. (Ind.) 875. without compensation. (Ohio) 805.

A corporation operating a “logging railVested right to damages.

road," not as a common carrier, but exclu

sively for its own private business, is held The statutory right to have damages for land, the fee which is taken for a public making railroad corporations liable for

to be subject to the provisions of a statute use, assessed and paid in money, is held to

injuries to servants caused by the neglibe a substantial right which, after the proceedings have progressed so far that the fee gence of fellow servants. (Minn.) 887. has passed, cannot be impaired by the pas

Building and loan associations ; usury. sage of a statute authorizing the aband- A statute giving building and loan assoonment of the land, and directing that the ciations the right to assess and collect from fee shall revest in the former owner, and members and depositors such dues, fines, that fact be considered in reduction of the interest, and premium on loans made, or damages. (Mass.) 314.

other assessments, as may be provided for Wrongful arrest; officer's liability.

in the Constitution and by-laws; and which The mayor and chief of police of a city provides that such dues

, fines, etc., shall are held to be liable in damages in case

not be deemed usury, although in excess of

the legal rate of interest,-is held to be they arrest motormen of street cars to abate

valid. (Ohio) 415. a nuisance caused by the operation of the cars, when the trolley wire is in such poor

Surety bonds. condition as to be liable to fall, when the A statute requiring all bonds given for object can be effected by merely cutting the faithful performance of official or fiduthe wires, or removing the controllers from ciary duties, or the faithful keeping, applythe cars. (Mich.) 350.

ing, or accounting for funds or property, to

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