I respectfully dissent.
In addition to the facts relied upon by the majority, one other fact is significant. *441It was stipulated by the parties that a prior oil and gas lease was executed by Troy C. Vines and wife, Ruby Vines, to Fred Herschback, dated March 12, 1943. The record reflects that the land was from 1943 until the death of Ruby Vines under an oil and gas lease. Hence it was clearly the intent of both Troy and Ruby Vines to procure production from the land almost from the time of its acquisition in 1941. Their intention was not merely to lease the land for oil and gas, but to secure production as soon as possible.
The common law regarding the open mine doctrine has been interpreted through a long line of cases. Bagot v. Bagot, 32 Beav. 509 (1863); Grenville-Nugent v. Mackenzie, A.C. 83, 90 (1900). The key word in these and cases following is intention — intention determined at the death of the testator.
Lawley v. Richardson, 101 Okl. 40, 223 P. 156, 43 A.L.R. 803 (1924), relied upon heavily by the majority merely holds that the same rule applicable to life estates applies with equal force to the homestead right of the surviving widow and minor children during the time the property is used and occupied as a homestead. Of greater interest are cases cited in the Lawley opinion. Without exception all look to the intent of the testator at the time of his death and the formation of the life tenancy.
The rule cited in and reaffirmed by Cherokee Construction Company v. Harris, 92 Ark. 260, 122 S.W. 485 (1909), is that the life tenant takes the land in the condition in which it was when the estate vested in him. Similar language is found in a line of Indiana cases beginning with Andrews v. Andrews, 31 Ind.App. 189, 67 N.E. 461 (1903). which relies heavily upon the English common law. Viner v. Vaughn, 2 Beav. 466 (1840); Bagot v. Bagot, supra.
Cases noted from other U.S. jurisdictions all rely upon the earlier English common law. All reach their respective conclusions by looking at the intent of the testator as of his death and the commencement of the life estate. None are cited in any brief before this Court or by the majority opinion to the contrary.
The open mine doctrine developed from the principle that the intention of the creator of the life estate controls. Under this doctrine, if the owner of a tract opens a mine, through lease or production before he creates the life estate, unless a contrary intention appears in the instrument creating the life estate, it should be presumed that the creator of the life estate intended to allow the life tenant to continue the exploitation of the mine and receive the royalty income therefrom.
The rights of the life tenant must be ascertained at the time of vesting of the life estate. Tract A was subject to an oil and gas lease at the time of Ruby Vines’ death and the vesting of Troy Vines’ life estate. Youngman v. Shular, 155 Tex. 437, 288 S.W.2d 495 (1956); Clyde v. Hamilton, 414 S.W.2d 434 (Tex.Sup.1967); Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352 (1957); Lange, Texas Land Titles § 847 (1961); Woodward, The Open Mine Doctrine in Oil & Gas Cases, 35 Texas L.Rev. 538 (1957); Annot., 18 A.L.R.2d 98 (1951); Kuntz, The Law of Oil & Gas § 8.2 (1962); Comment, The Open Mine Doctrine, 8 Hous.L.Rev. 753 (1971); Guittard, Rights of a Life Tenant in Production and Use of Oil and Gas, 4 Tex.B.J. 365 (1941).
Mitchell v. Mitchell, supra, involved the construction of a testamentary trust which in effect provided that the income of the trust should be paid to the life beneficiaries and the principal held intact until 21 years after the death of the last remaining life beneficiary, at which time the property should be delivered to the remain-dermen. We held that the royalties constituted a part of the corpus of the estate and not income. We concluded that the question as to whether the royalties constitute a part of the estate or income could be decided only by a construction of the will as a whole. Our holding that the royalties *442constitute a part of the estate and not income was based on the conclusion that “ * * * the expressed intention of the testator or testatrix is controlling over the open mine rule.” 157 Tex. at 349-50, 303 S.W.2d at 355. The opinion points out clearly the distinction between the facts of that case and the facts before us now. We said there: “Had this will made a simple devise to certain designated parties, the open mine rule of presumed intent would apply, but that is not the character of the devise in this will.” 157 Tex. at 349, 303 S.W.2d at 354.
The Vines’ joint will contained no expressed intention with regard to the distribution of royalties as between the life tenant and the remaindermen. In Clyde v. Hamilton, supra, we said:
“An exception to the rule that a life tenant is entitled to nothing but interest on the royalties and bonus is found in the ‘open mine’ doctrine. At common law, if mines or pits were open at the time the life estate began, it was not waste for the life tenant to continue digging for his own use; and the proceeds were regarded as a profit from the land. When the settlor of a trust or a testator had opened the mine, and he gave no directions as to the impounding or expenditure of the proceeds from the mine, the law presumed an intent that the life tenant could expend or dispose of them as this settlor or testator could. So the proceeds did not become part of the corpus to be preserved for the remainder-men. * * *” 414 S.W.2d at 439.
The law is clear in Texas that the creation of an oil and gas lease prior to the vesting of a life estate, absent language in the deed, will, or trust agreement expressing a different intention of the creator of the life estate, will give rise to the application of the open mine doctrine. This has been shown above. This is true even though production is obtained after the death of the creator of the life estate. The question here raised is the same as that posed in Mitchell v. Mitchell, 298 S.W.2d 236 [Tex.Civ.App.1957, rev’d on other ground as above noted, 157 Tex. 346, 303 S.W.2d 352 (1957)]: “Must the royalty come out of the very lease made by the testatrix in order to constitute income payable to the life tenant?” 298 S.W.2d at 248. I agree with the answer given in that opinion and the comment of Professor Woodward on that opinion in 35 Texas L.Rev. 538:
“A second tract of 150 acres was leased to Sun Oil in 1935. The lease was in force in 1940, when the testatrix died, by virtue of payment of delay rentals. It continued in force until 1945, the end of the primary term, and then expired. Then in 1946 the testamentary trustees executed a new lease on this tract to Gainer. Thus was presented one of the questions posed by Judge Garwood in the Shular case: Does the open mine doctrine apply where a lease was in force at the time the creator of the life estate died, but thereafter expired without production, and a new.lease to a different lessee is executed by the trustees: The court concluded that it does. It stated the issue in this way: ‘Whether the trustees’ lease should be considered as opening a new mine in land to which the “open mine” doctrine has previously had no application, or as being only a renewal, continuing in existence a previous condition or use of the land?’ It was reasoned that if production has been going on under the lease executed by the testatrix at the time of her death, there could be no question, but must the royalty issue out of the very lease executed by the testatrix? The Court examined the Kentucky case of Daniels v. Charles. There hard minerals were involved. The husband and wife executed a contract to give a lease for coal mining operations two years before the husband died. This contract was never performed and expired under its own terms about a year before the husband died. Some seven years later the wife made a lease to the same mining company that had contracted to take a lease during husband’s lifetime. The court said that had the contract been executed by the *443husband the lease would still be in force at the time the wife executed the lease, so that the execution of the lease would have been in performance of the contract, the lease could have been attributed to the act of the husband. In such a case the wife, by virtue of her dower rights, would have been entitled to payment of I/3 of the royalties. However, since the contract executed by the husband had expired prior to his death, there was no room for application of the open mine doctrine.
“The Texas court (in Mitchell) rejected this reasoning as applied to the facts under consideration. It began with the fundamental premise that the life tenant’s rights are fixed at the moment that his life estate comes into being, and not at some later date.” (Emphasis added.)
The following considerations are also useful in a case such as this: (1) the lease to Pan American executed by Troy C. Vines on Tract A was executed within a few months of the expiration of the lease to Cities Service in which Ruby Vines had joined; and (2) the record does not indicate that Tract A could have been put to some better or different use which would prohibit oil or gas production when the lease to Pan American was executed, so there is no reason to believe that Ruby Vines’ earlier manifested intention would have been different when the second lease was executed. Comment, The Open Mine Doctrine, supra at 764-765.
The judgments of the trial court and the Court of Civil Appeals should be affirmed.
DENTON, J., joins in this dissent.