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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. esis contained in the 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, not by adoption, but by inheritance, so to speak. In order to illustrate the strictness in which we have adhered to the common law, we need refer only to the "rule in Shelley's Case," a rule which has been expressly repealed by a majority of the states of this Union in which the common law prevails, perhaps in every one in which the matter has been of sufficient importance to call the attention of its legislature to it; a rule founded upon the peculiar policy of the real-estate laws of England, and one by reason of its extreme technicality well calculated to thwart the clear intention of devisors and grantors of real estate. Yet our courts, ever since the decision in Hancock v. Butler, 21 Tex. 804, have followed the rule without question, because it was il rule of the common law; the only question discussed being whether the rule was applicable to the case in hand. We conclude, therefore, that we may safely assume that since the adoption of the act of January 20, 1840, the common law is as much the rule of decision in this state as in those states in which it was the law from the beginning of their political existence.

But it is also insisted that, since there was no such life estate created by the operation of the common law as the life estate provided for under our statute of descent and distribution, the common-law rule does not apply to the estate in question. It is true that the life estates which were devolved upon the husband and the wife respectively under the common law were the tenancy by the curtesy on part of the hus-band and in dower on part of the wife. The husband, when he became a tenant by the curtesy, had a life estate in all the lands of the wife. The dower had to be assigned by the heir before the estate of the widow became fixed to her third. But it does not follow that because the life estate provided by our statute has no exact exampler in the common law the quality and incidents of life estates at common law do not appertain to it. At common law there re two classes of life estates: First, conventional life estates or those which were created by

Our statute of descent and distribution declares that, "where any person having title to any estate of inheritance, real, personal, or mixed, shall die intestate as to such estate, and shall have a surviving husband or wife, the estate of such intestate shall descend and pass as follows: 1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one third of the land of the intestate, with remainder to the child or children of the intestate and their descendants." Rev. Stat. 1895, art. 1689. The question is, What under this provision, are the rights of the life tenant in the oil underlying the land when no attempt had been made to extract it at the time of the descent cast? It is strenuously insisted on behalf of plaintiffs in error that the common-law rules as to the incidents of life estates do not apply to this statute. But we do not concur in the proposition. The statute of January 20, 1840, entitled "An Act to Adopt the Common Law," etc., reads as follows: "The common law of England (so far as it is not inconsistent with the Constitution and laws of this state) shall, together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the legislature." Rev. Stat. 1895, art. 3258. Since the passage of that act, which has ever since remained the law, and is now incorporated in our Revised Statutes as article 3258, probably few cases have been decided in this court in which the rules of the common law have not been expressly or impliedly applied in the determination of one more of the questions involved. In some instances it may be that the law as announced by the English courts has not been followed; not for the reason, however, that this court felt at liberty to depart from the rule of the common law, but because the decision or decisions were not re


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 in- 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 dispunishable 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 created by act of the parties it was held, that, if the grantor or lessor failed to protect the estate by stipulations in his deed or lease, the law was not bound to supply the omission." 1 Washb. Real Prop. p. 146. The reason for excepting the tenant in tail after possibility of issue extinct from the general rule applicable to life tenants whose estates have been created by operation of law seems rather technical, and does not apply to the life estates provided for in our statutes. On the other hand, the reason for holding the tenant by the curtesy or in dower impeachable for waste does so apply. and with equal force. We conclude, therefore, that it was the intention of the legislature, in enacting the statute in question, to make the estate therein provided for subject to impeachment for waste.

of a life tenant was liable for waste in min

It is too well settled to require a citation of authority that, while it is not waste for a tenant by the curtesy or a tenant in dower to work an open mine, it is waste to open a new mine; in other words, the tenant of a life estate punishable for waste has no right to remove the minerals, when the land had not been devoted to mining purposes before the creation of his estate. Oil, before its extraction, is a mineral, and is a part of the land, and, in so far as the ques

ing the land. Presumably the life tenant
acquired her estate by operation of law,
but that matter does not clearly appear
from a report of the case.
That case upon
appeal was reversed by the court of errors
and appeals of New Jersey, but upon an-
other point. 33 N. J. Eq. 603. The rul-
ing of the chancellor upon the question
whether the life tenant was impeachable for
waste was neither questioned nor decided.
In the case of Seager v. McCabe, 92 Mich.
186, 16 L. R. A. 247, 52 N. W. 299, are found
expressions not in accordance with our
views. But it seems to us that they were
not called for in the decision of that case.
The statute of Michigan gives to the wife
the "use during her natural life of one
third of the lands whereof her husband was
seised" during marriage. The opinion in
the case cited shows that the land in con-
troversy was valueless for agricultural or
lumbering purposes. It contained a bed of
iron ore, and that was practically the only
use of which it was susceptible. It seems
to us that under the Michigan statute it
was not difficult to reach the conclusion
that the widow, under the circumstances,
was entitled to mine the ore, without refer-
ence to any rule of the common law. But
in no aspect of this case do we think that

the principal to the remainder-man upon the termination of his estate. In the case of Clift v. Clift, 72 Tex. 144, 10 S. W. 338, Mrs. Clift had a one-sixth interest for her life in a town lot, and this court adjudged that the property should be sold, and that from the proceeds "there should be paid to Mrs. Clift a sum equal to a one-sixth interest for life in the proceeds of the land proper." Since the proceeds of the sale must be money, and the value of the use of the money is determined by the interest upon it, it follows that this recognizes the same right in the life tenant which was announced in the cases before cited, but lays down a different rule for securing that right. As to this last matter the rule announced by this court may be questionable, but, so far as we can now see, and so far as the writer of this opinion can recollect, that point was not mooted in that case.

the plaintiffs in error have cause of complaint of the judgment of the court of civil appeals. The right of the life tenant is to the use, and not to the corpus, of the estate; and where his title is in an undivided interest, and not in the whole of the land, and a sale is ordered for partition, his right in the proceeds is not a part proportionate to the undivided interest in which he has the life estate, but to the interest on that part as long as the life estate may continue to exist. In speaking on this subject in reference to the remainder-men, Chief Justice Marshall, in Herbert v. Wren, 7 Cranch, 380, 3 L. ed. 378, says: "They have a right to insist that, instead of a sum in gross, one third of the purchase money shall be set apart, and the interest thereof paid annually to the tenant in dower during her life." The rule thus stated is followed in North Carolina. Ex parte Winstead, 92 N. C. 703. The same principle is announced in Alabama. McQueen v. Turner, 91 Ala. 273, 8 So. 863; Kelly v. Deegan, 111 Ala. 152, 20 So. 378. As to securing the life tenant in the use of the part of the proceeds in which he has an interest the North Carolina court follows the rule indicated by the "emarks of Chief Justice Marshall above quoted. The Alabama court, however, permits that part to be paid to him upon his executing a properly secured refunding bond conditioned to pay 69 L. R. A.

Since we hold that the plaintiffs were not entitled absolutely to any part of the cil-that is to say, to the corpus of oneeighteenth interest-it follows that under the stipulation as to the judgment to be rendered the judgment of the Court of Civil Appeals should be affirmed, and it is ac cordingly so ordered.

Petition for rehearing overruled June 22, 1905.



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








Eminent domain.

See also Parks.

The right of a municipality to compensation for the value of sewer and water pipes any appropriation therefor. (Md.) 914.


owned by it, and laid under streets which are taken by the Federal government, under its power of eminent domain, for an entirely different use, is sustained. (C. C. A. 1st C.) 723.

The power to separate the right to fish in an inland lake, in New Jersey, from the ownership of the lake, and take it under the power of eminent domain for the benefit of the public, is denied. (N. J. Err. & App.) 768.

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tion of works of internal improvement, nor to grant any aid thereto which shall involve the faith or credit of the state, nor make

Appropriations to aid counties in the construction of public roads are held not to be forbidden by a constitutional provision that the general assembly shall not have power to involve the state in the construc

A statute making all the property of corporations engaged in maritime commerce or navigation taxable only at the place designated in their charters as their general office for business is held to violate a constitutional provision requiring a uniform rate of taxation. (Mich.) 431.

The right of the legislature to provide for the valuation and assessment of the property of railway companies by one assessing body, and for ascertaining the value of the whole of such property of any one railway corporation subject to taxation in the state as a unit, or as an entirety, and to distribute the value as thus found over the main line or track of such railway company, and to the different taxing districts, municipalities, etc., on a mileage basis, is sustained. (Neb.) 447.


Offering a prayer at the beginning of school each day, which does not represent any peculiar view or dogma of any sect or denomination, is held not to bring a public school within a provision of the Constitution that no portion of any fund or tax raised for educational purposes shall be used in aid of any sectarian or denominational school. (Ky.) 592.


A receiver of a Federal court in charge of a railroad company, who, by statute, is required to manage and operate the property according to the requirements of the valid laws of the state in which it is situated, in the same manner as the owner


thereof would be bound to do, is held to be subject to any rule prescribed by the state, imposing on railroad corporations a liability for the negligence of employees having superior authority over other employees. (C. C. A. 6th C.) 705.


A license to practise law is held to be properly revoked, where it is secured by fraudulent concealment of the fact that the plaintiff has recently been convicted of embezzling funds from a client in another state, although he has been pardoned for the crime. (Ill.) 701.

Expelling member of legislature.

The power of the court to supervise the exercise, by the legislature, of its constitutional power to expel a member, is denied. (Cal.) 556.


The power of the legislature to authorize a municipal corporation to condemn, for park purposes and boulevards, land near to, but outside of, its corporate limits, is sustained. (Tenn.) 750.

Forbidding the use of land near a park or park way for advertising purposes is held to amount to a taking of it for public use, for which compensation must be made. (Mass.) 817.

Public improvements; assessments.

A statute providing for the cleaning of drainage ditches, and the assessment of the costs thereof according to benefits upon the parties along its line who were assessed for the cost of its original construction, is held not to take private property for public use without compensation. (Ohio) 80

Vested right to damages.

The statutory right to have damages for land, the fee of which is taken for a public use, assessed and paid in money, is held to be a substantial right which, after the proceedings have progressed so far that the fee has passed, cannot be impaired by the passage of a statute authorizing the abandonment of the land, and directing that the fee shall revest in the former owner, and that fact be considered in reduction of the damages. (Mass.) 314.

Wrongful arrest; officer's liability. The mayor and chief of police of a city

are held to be liable in damages in case they arrest motormen of street cars to abate a nuisance caused by the operation of the cars, when the trolley wire is in such poor condition as to be liable to fall, when the object can be effected by merely cutting the wires, or removing the controllers from the cars. (Mich.) 350.

Requiring license of doctor.

An ophthalmologist, who prefixes to his name the letters "Dr." on his sign, and on notices in which he undertakes to correct certain diseased conditions by the fitting of glasses to the eyes, is held to come within the terms of a statute providing that, when a person shall append the title "Dr.," in a medical sense, to his name, he shall be regarded as practising medicine, within the meaning of a statute which requires a license as a condition precedent to doing so. (S. D.) 504.

Storage of oils.

An ordinance prohibiting the storage of refined and other explosive oils within the corporate limits is held not to be unreason(La.) 276.


Numbering automobiles.

Power to require the registering and numbering of automobiles is held to be conferred upon a city council by charter authority to control, prescribe, and regulate

the manner in which the streets shall be used and enjoyed. (Mich.) 345.

Use of voting machines.

A statute permitting the use of voting machine is held not to contravene a constitutional requirement that all votes at elections shall be given by ballot. (Mich.) 184.

Employers' liability act.

The employers' liability act, changing the law as to the defense in case of negligence of fellow servants of corporations, is held to be constitutional. (Ind.) 875.

A corporation operating a "logging railroad," not as a common carrier, but exclusively for its own private business, is held to be subject to the provisions of a statute making railroad corporations liable for injuries to servants caused by the negli(Minn.) 887. gence of fellow servants. Building and loan associations; usury. A statute giving building and loan associations the right to assess and collect from members and depositors such dues, fines, interest, and premium on loans made, or other assessments, as may be provided for in the Constitution and by-laws; and which provides that such dues, fines, etc., shall not be deemed usury, although in excess of the legal rate of interest, is held to be valid. (Ohio) 415.

Surety bonds.

A statute requiring all bonds given for the faithful performance of official or fiduciary duties, or the faithful keeping, applying, or accounting for funds or property, to

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