Hoyal B. MOORE et al., Petitioners, v. Troy C. VINES et al., Respondents, 474 S.W.2d 437

STEAKLEY, Justice. This suit was brought by parties holding remaindermen interests under the joint will of Ruby N. Vines, deceased, and Troy C. Vines, to obtain a construction of the will and a declaration of their rights as to two tracts of land located in Van Zandt County, Texas, and identified as Tract A and Tract B. Defendants to the action, and respondents here, are Troy C. Vines, the life tenant and independent executor of the decedent’s estate; Pan American Petroleum Corporation, Service Pipe Line Company and four assignees through assignments originally made by Troy C. Vines.

The question with which we are concerned is whether the open mine doctrine is operative as to Tract A. The courts below answered in the affirmative; our view is otherwise. The full facts of the case are available in the opinion of the court of civil appeals and only those matters material to our determinations will be stated. Troy and Ruby Vines were married in 1931. Thereafter they acquired the two tracts in question. On March 26, 1951, they executed an oil and gas lease covering both tracts.

Upon a subsequent divorce in 1953, Ruby was awarded Tract A as her separate property and Troy was awarded Tract B as his separate property. After remarrying in 1958, they executed a joint will in August of 1959, which provided: “State of Texas 1 County of Van Zandt J" Know all men by these presents that we, Troy Vines and wife Ruby Vines, residents of Van Zandt County, Texas, above the age of 21 and of sound mind, do hereby make this our last will, revoking all other wills, if any, at any time heretofore made by us or either of us.

Upon the death of either of us, it is our will that all the property owned by both of us, both real and personal and both separate and community go to the survivor to be used by such survivor during his or her life time. The survivor is hereby appointed independent executor of this will and is directed to act without bond. Upon the death of both of us the separate real estate owned by Troy Vines shall go to L. R. Vines for his life time, and the separate real estate owned by Ruby Vines shall go to her heirs. In case L. R.

Vines shall die before Troy Vines does then Troy Vines Real estate at the deth (sic) of the survivor shall got to Harold David Moore, grandson of Ruby Vines. The said Harold David Moore to have said land at death of L. R. Vines. Witness our hands at Grand Saline, Texas this the 13th day of August 1959 in the presence of the undersigned witnesses who are signing this will at our request. /s/ Troy C. Vines /s/ Ruby N. Vines Troy Vines Ruby Vines /s/ Nancy S. Mayne /s/ H. E. Henderson Witness Witness” Ruby Vines died in October, 1959. The will was probated and Troy was appointed independent executor.

The oil and gas lease which had been executed by Troy and Ruby in 1951 remained in effect during its ten year primary term upon timely payment of delay rentals. No production was obtained and the lease expired in March of 1961. On April 3, 1961, Troy Vines individually executed and delivered to Pan American Corporation an oil and gas lease covering Tract B, his separate property. The court of civil appeals correctly held that the evidence supported the trial court’s finding that the joint will was not contractual in nature.

Troy Vines was entitled to execute the lease upon his separate property and to enjoy the royalties which resulted therefrom. On June 1, 1961, Troy Vines, individually and as independent executor, joined by the remainderman, Hoyal B. Moore, and the involuntary plaintiffs, executed an oil and gas lease to Pan American Corporation covering Tract A. This tract was the separate property of Ruby Vines at her death. Production was timely obtained upon Tract A, and Pan American paid $64,500 in royalties to Troy individually and as/independent executor; he has expended all but $2,150.

On October 3, 1963, Vida Aleen Han-dley, joined by her husband, made a conveyance by deed to Troy Vines of all her one-half interest in the royalties accruing from production on Tract A. This portion, to be paid during Troy’s lifetime, remained his regardless of the applicability of the open mine doctrine to the tract. The issue with which we are concerned is the correct disposition of the remaining one-half interest in the royalty proceeds from Tract A, as between Troy, the life tenant, and the remaindermen. Ordinarily a life tenant who dissipates the corpus of an estate is liable to the remaindermen for waste.

Waste is defined as “permanent harm to real property, committed by tenants for life or for years, not justified as a reasonable exercise of ownership and enjoyment by the possessory tenant and resulting in a reduction in value of the interest of the reversioner or re-mainderman.” American Law of Property, Vol. I, ¶ 2.16e. Mineral royalties and bonuses are part of the corpus and the life tenant is entitled only to the interest thereon. The open mine doctrine forms an exception to the general rule. Clyde v. Hamilton, 414 S.W.2d 434 (Tex.Sup.1967).

Blackstone expressed the original doctrine in this manner: “To open the land to search for mines of metal, coal, §c., is waste; for that is a detriment to the inheritance: but if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use; for it is now become the mere annual profit of the land.” 2 W. Blackstone, Commentaries *282. See also Woodward, The Open Mine Doctrine in Oil and Gas Cases, 35 Texas L.Rev. 538 (1957).

We have held that the doctrine is invoked where wells were producing under a lease executed by the testator at the time the life estate came into being, and where producing wells were drilled after the vesting of the life estate but under an oil and gas lease in force and effect at the time. Youngman v. Shular, 155 Tex. 437, 288 S.W.2d 495 (1956); Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779 (1951); and Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986 (1905).

It is said that the fiction will be indulged that the wells were opened by the testator or settlor where they were drilled- under authority of an oil and gas lease executed by them; or, as it has been otherwise expressed, the drilling of wells under authority of an existing lease is the equivalent of an open mine. See 1 Kuntz, Oil and Gas, § 8.2 (1962). It is further stated in this treatise that there is uncertainty as to the result if the lease in existence at the time the life estate began thereafter terminates.

The comment is made that solution of the problem turns on whether emphasis is given to the factor that wells are drilled under authority of an existing lease which is the equivalent of an open mine, it being apparent that such authority for opening mines or drilling wells no longer exists after termination of the outstanding lease; or if emphasis is given to the intention of the grantor that the land be dealt with as he had dealt with it, from which it would follow that the life tenant would be entitled to enjoy the proceeds of a subsequent lease. The Supreme Court of Oklahoma in Lawley v.

Richardson, 101 Okl. 40, 223 P. 156, 43 A.L.R. 803 (1924), reached these conclusions: “An examination of the foregoing cases, together with the authorities holding that a life tenant has no right to lease the lands for oil and gas purposes or to open new mines on the property where the opening of the same is not authorized under a contract executed prior to the death of the owner, discloses that a life tenant takes the land in the condition in which it was when the estate vested in him, and that he is entitled to all of the rents and profits which may accrue from the lands by reason of minerals which may be produced from mines or wells existing at the time of the death of the testator, or which may be produced from mines or wells opened under authority of conveyances executed prior to the vesting of the life estate.

The life tenant has no authority by his own acts to obtain a profit on income from the land which would result from an injury to the inheritance, but he is entitled to the income and profits from the land when it is produced by reason of conditions which have been fixed by the deceased prior to his death, although the production of the same may result in an injury to the inheritance.” Among the cases examined was Andrews v. Andrews, 31 Ind.App. 189, 67 N.E. 461, (1903) where the mineral lease in question was executed before the beginning of the life estate.

In upholding the right of the life tenant to the rents and profits thereunder, the Court emphasized that the life tenant had not attempted to grant any new right; that the additional wells were not opened by any authority from the life tenant; that the wells were opened by virtue of a lease without reference to the wishes of the life tenant; and that the opening of the new wells under the lease was, in practical effect, the act of the testator. This same emphasis is present in Cherokee Const. Co. v.

Harris, 92 Ark. 260, 122 S.W. 485, (1909) where it was said that a life tenant is not entitled by an original act of his own to obtain from the land any profit that would result in an injury to the inheritance. The Court in Heyser v.

Frankfort Oil Co., 316 F.2d 441 (10th Cir. 1963), considered a comparable problem in this manner: “Unquestionably, the occupant of an Oklahoma probate homestead, like the holder of a life estate in lands, takes the land in the condition in which it was when the estate vested. * * * The historical rule against waste by a life tenant or a homestead occupant seems to militate against the opening of new mines or the drilling of new wells, after the vesting of the estate, and to confine new exploration to authority expressed or clearly implied at the time of the vesting of the estate.” The better view, in our opinion, is that the open mine doctrine is not applicable beyond the lease in existence at the time of the vesting of the life estate of Troy Vines, i. e., beyond the last leasing act of Ruby Vines.

The rights of Troy Vines in such respect rested on this lease and expired upon its termination. The lease executed after the vesting of the life estate was not the equivalent of an open mine at such prior time. Troy Vines as life tenant was not authorized by the will of Ruby Vines to lease the land for mineral development nor was he given enjoyment of the proceeds from any such lease.

Under these circumstances we are unable to attribute an intent to Ruby Vines that the land should continue to be leased for mineral development for the benefit of Troy Vines with a resulting diminishment in the value of the interest of the remaindermen. Cf. Bergendahl v. Blanco Oil Co., 440 S.W.2d 81 (Tex.Civ.App.1969, writ ref. n. r. e.) and Johnson v. Messer, 437 S.W.2d 643 (Tex.Civ.App.1969, writ ref. n. r. e.). We are otherwise in agreement with the conclusions of the court of civil appeals.

For the reasons stated, however, we reverse the judgments below and remand the cause to the trial court for further proceeding consistent with this opinion. It is so ordered. . Hoyal B. Moore and Harold David Moore, son and grandson of decedent by a previous marriage; Vida Aleen Moore Handley, daughter of decedent by the prior marriage, and her husband, joined pro forma, were involuntary plaintiffs. . Loyd Bussell Vines, Harlie L. Clark, Elise M. Young and Stanton L. Young. . Tex.Civ.App., 461 S.W.2d 642. . Yida Aleen Moore Handley and her husband, joined pro forma.