Priddy v. Griffith

Mr. Justice Baker delivered the opinion of the Court: There is no objection urged against the decree assigning dower or partition of the land. The only question presented to this court by the record is, did the circuit court err in hold-i'ng that the widow was not entitled to the rents or royalties due and to become due by the terms of the foregoing lease from the coal company. It is a well established rule of law, that a person occupying land as dower can not commit waste upon such land, and that the opening of coal or bther mines thereon amounts to waste. But it is equally well settled in this State, that where mines are already opened upon land assigned as dower, the widow has the right to operate the same and receive the proceeds thereof. (Lenfers et al. v. Henke et al. 73 Ill. 405, and cases there cited.) It is true, in this case the mines have not been actually opened upon the lands assigned as dower, but there being a valid subsisting contract, executed by the husband in his lifetime, under which the lessees may, at any time, open the mines, and by the terms of which one dollar per acre rent or royalty is to be paid annually to the lessor, his heirs or other legal representatives who, at the time, shall be legally entitled to the life estate in or fee simple title, to the land, until the mines are opened, and certain fixed royalties after the mines are opened and worked, it seems clear to us, that in justice the widow is entitled to that rent or royalty after the assignment of her dower. Should the lessees open mines on the lands assigned as dower, as by the terms of the lease they may, without the consent of the widow, she certainly would, upon the principle announced in the above cited case, be entitled to the royalty named in the lease. The act of opening the' mine would, in such case, be practically the act of the husband, viz., authorized by him. Then, in contemplation of law, for the purposes of this case the mine may be treated as already opened when the widow’s right of dower attached. In the case of Lenfers et al. v. Henke et al. supra, the question was, had the widow the right to the mineral rents and profits of mines opened by the owner of the fee after the right of dower had attached. This court said: “On principle, why may she not be endowed of mines opened by the heir or owner of the fee, after dower attaches and before there has been any assignment ? By all the decisions it is not waste for her to work mines opened, although the same had been abandoned before the death of her husband. She may construct new approaches and not be guilty of waste. On the same principle, if the cases on this question can be said to rest upon any principle, she could work mines opened by the heir without being guilty of waste, * * * there is no reason why the wife may not be entitled to be endowed of mines opened by the heir or owner of the fee after the right of dower attaches and before there has been any assignment, as well as in mines opened by the husband.” We think, upon the reasoning of said case, appellant is entitled to the one dollar per acre after the assignment of her dower and until the opening of mines, if any are opened, on her land, after which she should receive the royalty mentioned in the lease. It is also clear from the terms of the lease under which the fund in question accrued, that the one dollar per acre rent, to be paid until the mines should be opened, is to be treated as the annual rental for lands, and not mines, and if so treated, appellant is clearly entitled to the rent arising from the land set off to her by the assignment of her dower. The bill in this case seeks the distribution of funds accruing before and after the assignment of dower. As to that part accruing before the assignment, no right exists in the widow, but for the reasons stated she should receive all that has ac- , crued or will accrue, during the continuance of her life estate, from the lands set off to her by the assignment of her dower and homestead. The decree of the circuit court will be reversed, and the cause will be remanded to that court, with directions to enter a decree in conformity with the views here expressed. Decree reversed.