(248 S.W.)

A. W. Surtees and his wife, Dora A Surtees, [cerned, is to be considered like iron, coal, lead, knew that the land was the separate property or other solid mineral substances." of the first wife of A. W. Surtees, Ethel Surtees, who was dead, and that the title to

See the rule laid down in the law of Oil

298, 299:

the land had passed under the statute to her and Gas (3d Ed.), volume 1, by Thornton, §§ children, who were the appellees, subject to a life estate in one-third use of the land by "The rule concerning the right of a life tenher surviving husband, A. W. Surtees. The ant to open new mines or work old ones aplease to appellants cast a cloud upon appel-plies to oil or gas wells upon the life estate. lees' title, authorizing a suit to remove same Thus, where oil wells had been sunk, in the

and to cancel the lease.

testator's life, under a lease, and one was being sunk when he died, it was held that the life tenant was entitled to the royalties under the

lease. But if no well has been sunk in the landowner's lifetime, his life tenant cannot sink an oil well, nor lease the land; and if he does lease. The life tenant cannot justify his conduct in boring oil or gas wells by claiming that if he did not take out the oil or gas, the neighboring landowners will drain the land; for the the owner of land, after leasing it for mining of oil or gas belongs to the remainderman. Where oil and gas, conveyed it to his children, reserv

[1] Since the splendid and able opinion written by the late David Bryant of the then United States Circuit Court of Appeals, in Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433, 51 C. C. A. 267, the rule seems establish- lease it, he cannot recover the rent under the ed firmly that a life tenant cannot bore for and take minerals out of the remaindermen's lands to the injury of the remaindermen, and is clearly announcing a doctrine that is universally followed in this state and other tribunals. In the case of Lone Acre Oil Co. v. Swayne, 78 S. W. 383, the Court of Civil Ap-ing to himself a life estate in it, it was held peals for the First District, sitting at Galveston, followed that case with approval. It was carried to the Supreme Court on a writ of error and affirmed, opinion by the late Chief Justice Gaines, Swayne v. Lone Acre Oil Co., 98 Tex. 605, 86 S. W. 740, 69 L. R. A. 986, 8 Ann. Cas. 1117.

In discussing the statute of this state in regard to the rule of descent and distribution, providing, "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" (Vernon's Sayles' Ann. Civ. St. 1914, art. 2462), Judge Gaines propounded the question:

"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?"

Judge Gaines then proceeds to answer the question, after discussing the common-law doctrine and dower estates, dividing the estates into two classes of life estates: "First, conventional life estates, or those which are created by contract; and, second, those which came into existence by operation of law"-proceeds to say:

"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. 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 question under discussion is con248 S.W.-28

that he was entitled to the royalties under the lease. And where a lessee in an oil lease from a life tenant continues to take oil after the death of the life tenant, he is liable to the remainderman.

"A life tenant may not open new mines upon the life estate; for him to do so is waste, even though, as in case of oil, it be necessary to secure it, where adjoining landowners have opened wells on their own lands, and the effect is to draw the oil from the land in which the life estate exists. "The fact that possibly, by operations upon neighboring lands, all the gas will be taken before the remainderman came into possession, cannot affect the right of the remainderman to prevent the taking by the lessee or grantee of the life tenant. That such lessee or grantee will not derive any benefit from a grant or lease which the life tenant had no right to make cannot be regarded as a hardship to any person.' If a stranger dig and carry away coal from land in possession of a life tenant, upon which no mine has been opened, the remainderman must bring the action to recover damages."

The same holding has been made in all the states, with practical unanimity. See two recent Kentucky cases: Crain v. West, 191 Ky. 1, 229 S. W. 51, and Meredith v. Meredith, 193 Ky. 192, 235 S. W. 757.

[2] Appellants acquired no rights whatever by virtue of the lease to mine and operate for oil and gas only on the land of the remainderman, and to lay pipe lines and build tanks, towers, stations, and structures on said land, to produce, save, and take care of said products on land never before devoted to producing oil. A. W. Surtees, as shown, could not himself open mines on this land to the detriment of the remaindermen, the appellees herein. And the existence of this lease was a menace, a cloud upon appellees' title. Minerals being real estate, a prima facie case for relief under the common source of title was shown. Word v. Houston Oil

Error from Red River County Court; R. worked under the contract, it appears, from J. Williams, Judge.

Error is predicated upon the ruling of the by the parties thereto. The language of the court. clause has the effect of expressly "limiting,"

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(248 S.W.)

requirements of statute, it is valid.

3. Depositaries 7-Stipulation in bond, providing for interest on average daily balances on school district funds, held not to render bond more burdensome than statute contemplated.

While Vernon's Sayles' Ann. Civ. St. 1914, art. 2771, as amended by Act March 20, 1917

as stated in Bateman v. Maddox, 86 Tex., 2. Bonds 32-If bond contains substantial 546, 26 S. W. 51, "both the time of commencement and continuance" of the agreement such Except where the statute declares all bonds as it prohibits the enforcement of. The "one void which do not strictly comply with the reyear" begins and is to be computed "from quirements therein prescribed, a bond need not the making of it," the agreement. Conse-be in the exact words of the statute, provided it includes substantially all that the statute requently, such a contract as the one here in quires. suit is within the terms of the statute. 2 Elliott on Contracts, § 1179; Moody v. Jones (Tex. Civ. App.) 37 S. W. 379; Publishing Co. v. Moore, 46 Tex. Civ. App. 259, 101 S. W. 867. According to the evidence, on Thursday, August 5, 1920, the plaintiff in error acceded to the proposition of the manager of the oil company. In legal effect the contract on that date became instantly binding on the parties, and neither party could subsequently recede from the contract without the consent of the other. This contract was, by its terms, for a year's service; performance to begin at a future time appearing in the facts to be on August 23, 1920. The contract, as seen, by its terms is not capable of entire and complete execution within a year from the date of "the making of it," because the period of service agreed upon was to extend one year from the time "performance commenced." "Performance commenced" on August 23, 1920. Therefore there would not be an entire and complete execution of the contract, if its terms were followed, before and until August 23, 1921, showing an excess of 18 days above one year from the date of the making of the contract on August 5, 1920. The excess of 18 days from August 5th to August 23d was just as efficient as a longer period to render the agreement void under the statute. Indeed, an excess of the period of "one year," however short, is sufficient to satisfy the terms of the statute and make such agreement unenforceable. Affirmed.

AMERICAN SURETY CO. OF NEW YORK v. TARBUTTON. (No. 2677.)

(Court of Civil Appeals of Texas. Texarkana. Feb. 28, 1923. Rehearing Denied March 8, 1923.)

1. Depositaries 7-Recital in bond that bank chosen depository for "scholastic year" held not part of conditional bond limiting term of appointment.

The recital in a statutory bond executed by a bank, as depository of school district funds, that the bank was chosen depository for the "scholastic year beginning September 1, 1920, and ending August 31, 1921,” held not a part of the condition of the bond operating to limit the terms of appointment of the bank as depository in a way not authorized by Vernon's Sayles' Ann. Civ. St. 1914, art. 2771, as amended by Act March 20, 1917 (Gen. Laws 1917, c. 160 [VerLon's Ann. Civ. St. Supp. 1918, art. 2771]).

Gen. Laws 1917, c. 160 [Vernon's Ann. Civ. St. Supp. 1918, art. 2771]), provides that a bank selected as treasurer of school district funds shall give a bond "to safely keep and faithfully disburse same," and to "pay over to his successor all balances remaining in his hands," a provision in a bond requiring the bank to "faithfully keep said funds and account for them," with interest on the average daily balances, held not to render such bond more onerous than authorized by the statute, which declares that the person making the best bid of interest on the average daily balances shall be chosen treasurer; a stipulation that the bank pay interest being no more than a particular undertaking covered by the stipulation that it would "faithfully discharge the treasurer's duties."

4. Depositaries

7-What must and must not be read in statutory bond.

Where a bond is given under the authority of a statute in force when it is executed, it will be presumed, in the absence of a contrary intention, that the intention of the parties was to execute a bond as required by the statute, which becomes a part of the bond as if incorporated in it; whatever is included in the bond and not required by statute must be read out of it and whatever is not expressed in the bond, but required by statute, must be inserted in the bond.

5. Depositaries

7-That statutory bond executed by bank acting as treasurer of school district funds was not in exact words of statute held not to invalidate it.

That the statutory bond executed by a bank as treasurer of school district funds and containing a provision that the bank should account "to the school board of the district and to the state superintendent of public instruction, according to law," did not in terms require it to pay over balances remaining in its hands to its successors, as provided in Vernon's Sayles' Ann. Civ. St. 1914, art. 2771, as amended by Act March 20, 1917 (Gen. Laws 1917, c. 160 [Vernon's Ann. Civ. St. Supp. 1918, art. 2771]), held not to affect its validity as a statutory bond, the provision that the bank account to the school board and state superintendent to be treated as surplusage if such accounting is not required by law, and the requirement of the law that it should pay over balances in its hands to its successors to be read into the bond.

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6. Depositaries 14-What evidence held suf-, ficient to show breach of statutory bond executed by bank as treasurer of school district funds.

Breach of a statutory bond executed by a bank as treasurer of school district funds and by a surety company held sufficiently shown by evidence that, after the bank ceased to do business and closed its doors, the board of the trustees of the school district drew on it for the amount on deposit, that the draft was not paid, and that no part of the deposit was ever paid. 7. Depositaries 13-Undertaking of surety on bond executed by bank as depository of school district funds held to continue until bank's successor qualified and selected.

dent of the board of trustees of said district, and his successors in office. It was otherwise as follows:

that whereas the above-bounded Guaranty State "The condition of the above obligation is such Bank of Troup, Tex., offered the best bid of interest on average daily balances of school funds, and was on August 31, 1920, chosen by board of trustees as depository of the Troup independent school district for the scholastic year beginning September 1, 1920, and ending August 31, 1921:

"Now, therefore, if the said Guaranty State Bank of Troup, Tex., shall faithfully discharge its duties and pay the said funds received by it upon draft of the president, drawn upon order, duly entered by the board of trustees, and shall faithfully keep said funds and account for them, together with the interest thereon, at the rate of five per cent. per annum, calculated on average daily balances, to the school board of said district and to the state superintendent of public instruction according to law, then this obligation shall be void, but otherwise it shall remain in full force and effect."

At the end of the scholastic year mention

Under Vernon's Sayles' Ann. Civ. St. 1914, art. 2771, as amended by Act March 20, 1917 (Gen. Laws 1917, c. 160 [Vernon's Ann. Civ. St. Supp. 1918, art. 2771]), a bank selected as depository of school district funds held required to serve as such until its successor is "duly selected and qualified," and hence, where a bank, after executing the statutory bond, was chosen depository "for the scholastic year beginning September 1, 1920, and ending August 31, 1921," and had been selected as its own successor on August 31, 1921, but not qualify-ed in the bond, to wit, August 31, 1921, the ing as such by giving another bond, it was, by the terms of the statute, at the time deposits after August 31, 1921, were made, serving as depository under its appointment on September 1, 1920, and the undertaking of the surety on the bank's bond continued until the bank's successor was selected and qualified, and as such the surety was liable for the amount deposited after August 31, 1921.

8. Depositaries 13-Surety on bank's bond held not relieved from paying interest after

bank closed its doors.

A surety on a statutory bond executed by a bank under Vernon's Sayles' Ann. Civ. St. 1914, art. 2771, as amended by Act March 20, 1917 (Gen. Laws 1917, c. 160 [Vernon's Ann. Civ. St. Supp. 1918, art. 2771]), as depository of school district funds, who undertook that the bank would pay interest on deposits, such surety held not released from paying interest from the time the bank was ordered to close its doors by the Commissioner of Insurance and Banking.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Action by A. B. Tarbutton, President of the Board of Trustees of the Troup Independent School District, against the American Surety Company of New York and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

The Troup Guaranty State Bank was duly selected as treasurer of the Troup independent school district for the scholastic year beginning September 1, 1920, and ending August 31, 1921, and on August 31, 1920, made a bond (which was duly approved) as such treasurer, with appellant (a corporation) as surety. The bond was for $35,000 and was payable to appellee, then the presi

school district had $5,489.85 on deposit with said bank as treasurer. On the day last mentioned the bank was reappointed treasurer, but did not then or thereafter make a bond as such. October 21, 1921, the bank was closed by order of the Commissioner of Insurance and Banking, who took charge of same for the purpose of winding up its affairs as provided by law. At that time, to wit, October 21, 1921, the school district had $7,559.15 on deposit with the bank as treasurer. At some time not stated in the record,

but after said October 21, 1921, the board of trustees of the district "drew a draft or voucher" on the bank for said $7,559.15, which was not paid. This suit was by said district and appellee as the president of said board of trustees against the bank as the principal and appellant as the surety on the bond referred to, and was to recover said $7,559,15 and interest thereon. The trial was to the court without a jury, and resulted in a judgment in appellee's favor against the bank and appellant jointly for $7.607.05, and against appellant alone for the further sum of $300 as the interest at 5 per cent. per annum on said $7,607.05 from October 20, 1921, to June 29, 1922, the date of said judgment. The appeal is by the surety company alone.

T. N. Jones, of Tyler, and Fiset & Shelley, of Austin, for appellant.

Simpson, Lasseter & Simpson, of Tyler, for appellee.

WILLSON, C. J. (after stating the facts as above). The contentions presented in appellant's brief are: (1) That the obligation sued on was not valid as a statutory bond because it was not conditioned as required

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(248 S. W.)

by the statute; and, therefore, that appellant's liability was determinable with reference alone to rules applicable to common law bonds. (2) That it did not appear from the testimony that there had been a breach of the condition of the bond. (3) That appellant was not in any event liable for money deposited with the bank after August 31, 1921, nor for interest which accrued after October 21, 1921, the date when the bank was closed by order of the Commissioner of Insurance and Banking.

tially all that the statute requires, that is such obligations as are imposed by the statute, and allows every defense given by law, as where it is more specific than the statute requires, 24; and see 4 R. C. L. 54; Johnson v. Erskine, but imposes no additional obligation." 9 C. J. 9 Tex. 1; Ward v. Hubbard, 62 Tex. 559; King v. Frazer, 2 Willson, Civ. Cas. Ct. App. § 788; Bank v. Parrish (Tex. Civ. App.) 207 S. W. 939; State v. Harper, 99 Tex. 19, 86 S. W. 920.

We think the bond is within the rule stat

sion requiring the bank to account for interest on average daily balances rendered it more onerous than was authorized by the statute; and in that event that it would be invalid in that respect only, and would be enforceable in the respects it conformed to the requirement of the statute, within a rule stated in 9 C. J. 25, as follows:

[1] The first one of the contentions is pred-ed, unless it should be said that the proviicated upon the view that the condition of the bond was materially different from the condition prescribed by the statute applicable, to wit, article 2771, Vernon's Statutes, as amended by Act March 30, 1917, General Laws, c. 160 (Vernon's Ann. Civ. St. Supp. 1918, art. 2771). The statute referred to required the bank, when it was selected as treasurer of the school district, to give a bond "conditioned for the faithful discharge of the treasurer's duties and the payment of the funds received by him upon the draft of the president of the school board drawn upon order duly entered of the board of trustees. Said bond shall be further conditioned that the treasurer shall safely keep and faithfully disburse all funds coming into his hands as treasurer, and shall faithfully pay over to his successor all balances remaining in his hands."

"Where a bond contains the conditions prescribed by the statute, and also contains conditions in excess of those required, if the excess can be separated from the authorized porrejected as surplusage and the rest of the tion without destroying the latter it may be bond held valid, in the absence of a statutory provision expressly or by implication making it void, unless the language of the bond precludes a construction giving it validity."

Did the provision in the bond referred to render it more onerous than was authorized by the statute? We think not. The statute declared that "the treasurer of the school fund (quoting) shall be that person or corpo

best bid of interest on the average daily balances for the privilege of acting as such treasurer," and that the bond given should be conditioned, among other things specifically mentioned, "for the faithful discharge of the treasurer's duties." One of the duties of the treasurer was to pay interest it agreed to pay on funds intrusted to it, and the stipulation that it should pay interest on the average daily balances was no more than a particular specification, or definition, of an undertaking covered in a general way by the stipulation that it should "faithfully discharge the treasurer's duties."

[2, 3] It will be seen on reference to the statement above that the bond contained a recital that the bank had been chosen depository for "the scholastic year beginning Sep-ration who offers satisfactory bond and the tember 1, 1920, and ending August 31, 1921." Appellant insists that the recital was a part of the condition of the bond and operated to limit "the term of the appointment" in a way not authorized by the statute: But plainly, we think, the recital was not a part of the condition of the bond and is of no importance in determining the contention. The difference between the condition in the bond and the condition prescribed by the statute lies alone in the fact that that in the statute required the treasurer, or depository of such funds "to safely keep and faithfully disburse same," and to "faithfully pay over to his successor all balances remaining in his hands," while that in the bond required the bank to "faithfully keep said funds and account for them," with interest on the average daily balances, "to the school board of said district and to the state superintendent of public instruction according to law."

The rule applicable has been stated as follows:

Except where the statute, either expressly or impliedly, declares all bonds void which do not strictly comply with the requirements therein prescribed, a bond need not be in the exact words of the statute, and the fact that it slightly varies from the form prescribed will not invalidate it, provided it includes substan

[4, 5] We do not think the fact that the bond contained a provision that the bank should account "to the school board of the district and to the state superintendent of public instruction according to law," and did not in terms require it to pay over balances remaining in its hands to its successor affected its validity as a statutory bond. The provision that the bank should account to the school board and state superintendent should be treated as surplusage if such accounting was not required by law, and the requirement of the law that it should pay over balances in its hands to its successor should be read into the bond. The rule is "that the law" quoting further from 9 C.