dissenting.
I respectfully dissent. The Court agrees that Kiser reserved something more than a mere naked power. Then it narrows the question to whether this reserved leasing power may be exercised by the heirs of the grantor after his death. I contend that the reservation of power to lease contained in the deed from Kiser to Mrs. Johnston amounts in law to a property right which never at any time passed by the grant, and that when Kiser died, intestate, this interest in land passed by descent and distribution to his daughters. As I will more specifically discuss later, the Court seems to base its holding that the power reserved was personal to Kiser on the proposition that the reservation does not include the words “heirs and assigns”.
Petitioner, Pan American, claims title under four separate but identical oil and gas leases, executed by the four daughters after the death of Kiser, covering the whole of Section 640. The four daughters received their interest in Section 640 under the laws of descent and distribution.
The Respondent, Cain, who holds title to 1/8 of the mineral *331interest purchased by Mrs. Johnston, contends that the leases, having been executed by parties other than the original holder of the executive right, have no binding effect on his undivided 1/8 mineral interest. In other words, Cain claims that his mineral interest is not leased. The Court of Civil Appeals has held that the right to lease, unlimited as to time, reserved by Kiser, terminated upon his death and did not pass by descent and distribution to his heirs. The Court here, in holding that the power did not pass to the daughters, lays down the rule that the reserved executive right terminates with the death of the original holder unless there is something to indicate that the parties intended that the power should survive and be exercised by others.
Cain’s contention is that there was a complete lack of power in the Kiser daughters to ever execute the leases: (a) because of the death of Kiser, and (b) because the reservation to Kiser violated the Rule against Perpetutities, and, also that the power was improperly exercised.
Pan American, et al., including the Kiser daughters, contend that the leases they executed were and are valid, and that their motions for summary judgment instead of Cain’s motion for summary judgment should have been granted. I agree with Pan American. However, since the Court confines its opinion to the question of whether or not the power to lease terminated at the death of Kiser, I shall confine this dissent to that question, and shall not discuss all the reasons why I think the summary judgment should have been entered in favor of Pan American.
The executive right reserved by Kiser, in his deed to Mrs. Mae Johnston, to lease the fractional interest therein conveyed was a property right, an interest in land, appurtenant to the mineral interest therein conveyed, and for the use and benefit of the mineral interest retained and owned by Kiser, and as such passed on his death by descent to his heirs. This property right was expressly excepted from the grant. The executive right expressly reserved by Kiser never, at any time, vested in Mrs. Johnston for the simple reason that property excepted, or the estate reserved, is never included in the grant. Cockrell v. Texas Gulf Sulphur Co., 157 Texas 10, 299 S.W. 2d 672.
This Court, as well as the Court of Civil Appeals, apparently misinterpret the true contention of Pan American when it says that the executive right reserved by Kiser is a power “coupled with an interest”. In my opinion, we have here a power “coupled with an interest” not in the sense discussed by these courts, but *332in the sense that the power reserved was “engrafted on and was annexed” to the 1/4 undivided interest conveyed to Mrs. Johnston. The power was also “annexed” to the remaining 90-acre interest in the minerals which Kiser retained. In the case of Hunt v. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589, the Court speaks in terms of the power being “engrafted on the estate”. The power “connected with” or “engrafted on” Mrs. Johnston’s interest in the mineral estate, which was expressly excepted in the deed to Mrs. Johnston, remained annexed to Kiser’s property interest upon his death, as well as the Johnston-Cain interest. Thus, the power and the interest were united in Kiser. The phrase “coupled with an interest” does not mean an interest in the exercise of the power. It means, in the sense used here, that Kiser retained an interest in the property on which the power was to operate. In the case of Drake v. O’Brien, 99 W. Va. 582, 130 S.E. 276, Sup. Ct. W. Va., 1925, it was held that “the power is to be construed liberally in favor of the object to be accomplished”. Although in that case the complete executive rights were conveyed to the grantees, who had purchased only a one-half interest in the 1,000 acres of land involved, the principle is the same where, as here, all of the executive rights have been reserved by the grantor. In the Drake case the Court said: “* * * The language employed in the Gale deeds aptly fits this definition.2 By the deed of June 26, 1875, there was conveyed to the grantees a one-half interest in 1,000 acres of land. Not only that, but the deed gave the power to take, operate, and control the entire tract as their own for the production of timber, coal, and salt, with power to lease the same in their own names as owners of the entirety. Thus, the grantee had an interest in every stick of timber, bushel of coal, and barrel of oil under the 1,000 acres.” The Court, in holding that the power did not terminate with the death of the grantor, quoted from Perry on Trusts, Sec. 602h:
“It is a universal rule that a power coupled with an interest is irrevocable. * * * Not even the death or the insanity of the grantor or donor will annul or suspend its exercise. * * * In other words, the power is annexed to the property, and is an irrevocable part of the security, and goes with it.” (Emphasis added.)
The Court also states:
“Where the power is coupled with an interest so that it *333may be exercised in the name and as the act of the donee of the power, the death of the person who conferred the power has no effect upon it.” (Emphasis added.)
Although it is unnecessary to the decision, it could be plausibly (argued that since the power was reserved by Kiser, he conferred the power upon himself. In other words, Kiser was actually both the donor and donee. In such a situation, the general rule announced in the Drake case, and many other cases, that the power does not terminate at the death of the donor-grantor, would certainly be applicable.
The majority opinion says: “Our question is whether the reserved leasing power may be exercised by the heirs of the grantor after his death.” The Court’s opinion indicates that its holding that Kiser’s right to lease terminated upon his death, and, therefore, did not pass by descent and distribution to his heirs, is based largely on the fact that words of inheritance were not used in the language of the reservation. The Court holds that the executive right terminates with the death of the original holder unless there is something to indicate that the parties intended tha,t the power should survive and be exercised by others. The Court then discusses the case of Stone v. Texoma Production Co., Okla. 336 P. 2d 1099. In that case the only “something to indicate that the parties intended that the power should survive and be exercised by others” is the fact that “the right was expressly reserved to the grantor, his heirs, executors, administrators and assigns as an exclusive right and a proper subject of ownership.” (Emphasis added.) The reservation in the deed in the present case does not contain the underscored words “his heirs, executors, administrators and assigns”. This is the only possible difference between the reservation in the Stone case and the present case. There is nothing about the Stone case which would lead to the conclusion that the Court based its holding on the fact that the reservation contained words of inheritance. It is clear, from the opinion, that the Court in the Stone case held that the right to lease was reserved to the grantor, and, therefore, the title to such right did not pass to the grantee. The Court further held that the reserved executive right was a proper subject of ownership, and that upon the death of the grantor the right to lease descended to his heirs and they became vested with a right to assign. It is clear to me that the words of inheritance contained in the Stone instrument did not control the Court’s judgment, but rather the controlling factor was the rule that the executive right or interest reserved or excepted was a reserved property right which could never pass *334to the grantee by reason of the deed containing the reservation or exception. It is well established that an interest or estate in land excepted from a grant is excluded from the grant and does not pass to the grantee. Pich v. Lankford, 157 Texas 335, 302 S.W. 2d 645; King v. First National Bank of Wichita Falls, 144 Texas 583, 192 S.W. 2d 260, 262,163 A.L.R. 1128; Reynolds v. McMan Oil & Gas Co., Texas Comm. App., 11 S.W. 2d 778, motion for rehearing overruled, 14 S.W. 2d 819; 14 Texas Jur. 958, Deeds, See. 175.
The right to lease, having been reserved by the grantor Kiser in his deed, could not under any circumstances, by reason of such deed, ever become the property of the grantee, Mrs. Johnston, or her subsequent assignee, Cain.
The argument that the reservation did not expressly provide that the power was to extend to Kiser’s “heirs and assigns” is of no force, especially in the light of Article 1291, Vernon’s Annotated Civil Statutes of Texas.3
This statute has been construed to apply in the same way in cases involving reservations from grants. Word v. Kuykendall, Texas Civ. App., 246 S.W. 757, no wr. hist. The effect of this type of statute has been adequately stated in 26 C. J. S. 1001, Section 138, in this way:
“* * * Under a statute providing that a conveyance of realty shall be construed to be a conveyance in fee without the use of the word ‘heirs’, unless it appears from the language of the instrument that the grantor meant to convey an estate of less dignity, it is not necessary in order to constitute a reservation in fee that the reservation be limited to the heirs of the grantor.”
The purpose of the statute would be thwarted if we were to hold at this late date that technical words of inheritance were necessary to secure to the heirs of the grantor the rights expressly reserved to the grantor.
The Court of Civil Appeals has held that Article 1291, supra, only has reference to the conveying of the fee simple estate. This Court has held that Article 1291, supra, applies to a mineral *335estate. In the case of Mitchell v. Castellaw, 151 Texas 56, 246 S.W. 2d 163, this Court said:
“* * * It would seem to be the better rule that neither words of inheritance nor other words of art are essential to the valid reservation of an appurtenant easement of even unlimited duration. Restatement, supra, Sec. 468, comment b and Sec. 473, comment a; 28 C.J.S. supra. See also Word v. Kuykendall, supra. We are cited no Texas authority to the contrary. Clearly such is the case with reference to an exception clause operating to sever the minerals from the surface. Associated Oil Co. v. Hart, Texas Com. App., 277 S.W. 1043.” (Emphasis added.)
It is significant that while no technical words of inheritance are included in the reservation involved here, there is likewise no mention in the reservation of any provision directing that the power to lease is to pass to Mrs. Johnston, her heirs and assigns, at the death of Kiser. The clear import of the statute is to require words of reversion in order that the right or interest may return to the party who would otherwise enjoy the same but for the grant or reservation rather than the common law’s requirement that words of inheritance be included in the grant or reservation. Rogers v. Nixon, Texas Civ. App., 275 S.W. 2d 197, wr. ref. Even the states that recognize and follow the common law rule, requiring words of inheritance in order for a reservation to vest in the heirs of the grantor, recognize that the same is not necessary after the passage of a statute such as Article 1291, supra.
The judgments of both the trial court and the Court of Civil Appeals should be reversed, and the motion of Pan American, et al. for summary judgment should be granted.
ASSOCIATE JUSTICES GRIFFIN, NORVELL and HAMILTON join in this dissent.
Opinion delivered January 17, 1962.
. “By the phrase ‘coupled with an interest’ is not meant an interest in the exercise of the power, but an interest in the property on which the power is to operate." (Emphasis added.)
. “Every estate in lands which shall thereafter (hereafter) be granted, conveyed or devised to one although other words heretofore necessarily at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”