dissenting.
I respectfully dissent. The trial court sustained appellee’s motion for summary judgment on the grounds that the suit was barred under the doctrine of res judicata.
Appellants are the surviving children of Claude B. Hudspeth, deceased, from a prior marriage and appellee is his surviving wife. Under decedent’s last will and testament, duly admitted to probate, appellee was devised a life estate in all his real property with remainder to appellants. The life estate included a ranch having approximately 16,359 acres. In 1950, appellants filed suit against appellee praying for an accounting, determination of matters pertaining to child support, widow’s election, for a declaratory judgment to construe the will, and to determine the rights of the parties under the will. Appellants filed their present trespass to try title suit in 1982 seeking to quiet their title to the minerals in the ranch lands of their deceased father and to recover bonuses, royalties, and delay rentals which they allege appellee wrongfully received. The main contention was that the production and severance of oil and gas deprived them of and wasted their mineral interest.
The relevant and pertinent part of decedent’s last will and testament provided as follows:
Item Two
I give and devise all personal property belonging to me at the time of my death unto my beloved wife, Inez Hudspeth, to have, hold and enjoy so long as she shall live, or until her marriage. I also give to the said Inez Hudspeth all rents, revenues and income of every kind and character derived from the real estate belonging to me at the time of my death during the span of her natural life, or until her marriage. The bulk of my estate consists of ranch land and the livestock situated thereon. There is very considerable indebtedness against both the real and personal property. My wife, Inez Hud-speth, shall, out of the income derived from said properties, and before appropriating any of said income to her own use, pay the interest and fixed charges against said properties, the taxes, and after appropriating to her own use only a sufficient amount to live on comfortably, the balance of said income shall be applied, first, to the payment of the indebtedness against the livestock, and when that indebtedness has been liquidated, she shall then apply such surplus balance to the principal indebtedness against the real estate. Or she may, in her discretion sell the livestock and apply the proceeds thereof to the payment of the mortgage indebtedness against said livestock, and any balance received to the principal indebtedness against the real estate, then lease the ranch lands at the then prevailing price, and all income of every kind and character derived therefrom, after meeting the fixed charges, if any remains, against said livestock and real estate, the balance of said rental payments shall be the sole and separate property of the said Inez Hudspeth to apply as in her judgment may seem wise and proper. But, if she so desires, she may continue to operate said ranch *254as a going concern, and in such event shall have the 'power to sell any and all livestock raised by her and purchase additional livestock as may be necessary to keep said ranch properly stocked. She may pay all expenses necessary in the operation of said ranch, but must at all times keep the taxes and other fixed charges against said land and livestock paid. To this end she may make bills of sale to livestock, a lease or leases on land, either for grazing purposes or for oil and gas, sell wool, buy bucks, and do and perform any and everything necessary and proper in the operation of said business. [Emphasis added.]
Appellants’ pleadings in their first amended original petition filed in the 1950 lawsuit included the following:
... Plaintiffs say that it is now necessary to construe said Will and determine the rights of the parties and that all questions in connection with such Will should be heard and determined by Declaratory Judgment, if necessary, in order to avoid a multiplicity of suits and prevent loss and possible loss, of interest and property to Plaintiffs. [Emphasis added.]
The prior judgment in Cause No. 5981 styled Claude B. Hudspeth, III, et al. v. Inez Hudspeth, et al., was rendered by the District Court of Val Verde County on the 27th of December, 1950. The court expressly found and decreed that defendant had no duty to report to plaintiffs as to the condition of the estate; that plaintiffs under the terms of the will were not given an interest of present enjoyment of said estate or the income therefrom until the death or remarriage of defendant; that under the term of the will defendant was devised and bequeathed all rents, revenues and income of every kind and character from the real estate and the right to execute grazing leases and oil and gas leases. Additionally, the judgment decreed the following: “It is further ordered, adjudged and decreed by the court that the said Inez Hudspeth be quieted in the use and enjoyment of said 16,359 acres tract of land for the term of her natural life, or until her marriage.
In the instant case, appellants in their first amended original petition allege, among other things, that appellee executed oil and gas leases and is wrongfully receiving the bonuses, delay rentals, and royalties, because under the terms of the testator’s will they own all the minerals and that appellee dispossessed them of their interests in the lands. Additionally, appellant asked for an order to quiet their title to their interest in the land, and that the court ordered appellee to render an accounting as to all sums of money received. Thus it appears that this case involves the same parties and the same subject matter, which conclusively establishes the requirements of res judicata. Under the doctrine of res judicata, a judgment is a final adjudication, not only of matters actually determined, but also of all other matters which the parties might litigate in the cause, and which they might have had decided. Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex.Civ.App.—Dallas 1973, no writ). The Supreme Court reiterated the rule in Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979), stating:
The doctrine of res judicata states that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings either before the same or any other tribunal. The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit. [Emphasis added.] [Citations omitted.]
Id. at 771-72.
Appellants argue that the instant case is a different cause of action because there was no production of oil and gas at the time of the prior adjudication and that res judicata is not applicable because conditions changed and material new facts arose *255subsequent to the prior suit. In Clyde v. Hamilton, 414 S.W.2d 434, 439 (Tex.1967), the Supreme Court stated:
The general rule of property law is that a life tenant may not dispose of the corpus of the estate_ The royalties and bonuses are corpus which is to be preserved for the remaindermen. The life tenant, however, is entitled to the interest or income derived from the investment of the royalties and bonus.
An exception to the rule is the “open mine” doctrine, where the mine was open at the time the life estate began. The Supreme Court in Clyde further stated that:
When ... 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 expand or dispose of them as ... the testator could. So the proceeds did not become part of the corpus to be preserved for the remaindermen. [Emphasis added.]
Id. at 439. In a later case, Moore v. Vines, 474 S.W.2d 437 (Tex.1971), the Supreme Court refused to approve a lease for mineral development executed by the life tenant, stating:
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 remainder-men. [Emphasis added.]
Id. at 440.
Obviously, the Supreme Court has recognized another exception to the general rule enunciated in Clyde v. Hamilton, supra. It now appears that remaindermen have no right to enjoyment of the corpus of the estate or the proceeds from mineral developments in those instances where the life tenant was expressly authorized by the will of the testator, to lease the land for mineral development, and was bequeathed the enjoyment of the proceeds from such leases.
The court in the prior suit determined and rendered final judgment on the same issues raised in the present case. The trespass to try title question was disposed of by the provision in the judgment, “that Inez Hudspeth be quieted in the use and enjoyment of the said 16,359 acre tract of land for the term of her natural life, or until her remarriage, ...” The trial court gave effect to the intent of the testator by decreeing, “by the terms of said will there was devised and bequeathed to her (appel-lee), among other things, all rents, revenues and income of every kind and character from the real estate ... and the right to execute grazing leases and oil and gas leases; ... ” The court further ruled that plaintiffs (appellants) under the terms of the will were not given an interest of present enjoyment of the estate or the income therefrom until the death or remarriage of Inez Hudspeth, and lastly that said Inez Hudspeth had no duty to report to plaintiffs as to the condition of the estate. The question of whether the bequest of income of all rents, revenue and income of every kind and character from the real estate included income, royalties and bonuses from the oil and gas leases constituted an issue that could have been litigated in the prior suit. Consequently, even if the court was wrong on the interpretation or import of the word “income,” the application of res judicata was not affected. See Segrest v. Segrest, 649 S.W.2d 610, 612-13 (Tex.1983). Appellants consider their action a trespass to try title matter. But, their trial petition in the present suit clearly prays for a declaratory judgment for determination of their rights to an interest in the land and minerals, including past and future productions. Declaratory judgment is an improper, as well as impermissible, collateral attack on a final and valid judgment. Segrest v. Segrest, id., at 613.
Appellants contend that a judgment is res judicata only with respect to facts and *256conditions that existed at the time of the judgment and that it does not prevent a re-examination of the same question between the same parties where facts have changed or new facts arise which alter the rights or relations of the parties, citing City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411 (1959). But, in the Stubbs case the prior and subsequent suits involved different use of the land in question under different city ordinances and the present suit had not been heard on its merits. Stubbs, 327 S.W.2d at 414. Thus, it is apparent that all the essential issues of fact have been conclusively determined and adjudicated in the prior suit, on the same subject matter, between the same parties and appellants cannot relitigate the same issues and subject matter in the present suit. There is no record evidence of changed conditions or new material facts that have arisen subsequent to prior suit. There is no evidence in this record favorable to appellant, to show a disputed fact issue that would preclude the summary judgment.
I would affirm the judgment.