Skeeters v. Granger , 1957 Tex. App. LEXIS 1933 ( 1957 )

DAVIS, Justice.

On or about April 6, 1950, Cora Granger, a widow, and her children, executed an oil and gas lease to A. Z. Skeeters covering 76.5 mineral acres in a certain 87.5 surface acres of land, more or less, in the Wm. Watson Survey in Harrison County, Texas. No cash bonus was paid 'for the lease but it contained a provision for the payment of a bonus of $50 per acre out of ⅛ of ⅝ of any minerals produced from a block which was then being assembled by Skeeters. The lease required that drilling operations be commenced within 120 days within the block, which was done, and minerals were discovered in the form of gas and gas distillate in paying quantities, but not from the Granger tract.

After the discovery of minerals, payments were made to the Grangers in the sum of $123.97 on the basis of ⅛ of % royalty. No further payments being made and Skeeters having denied liability for the balance of the $50 per acre due under the terms of the lease, suit was filed for the balance by the children of Cora Granger, Mrs. Granger having died May 19, 1953. Suit was filed June 22, 1955, in the district court. Judgment was rendered for plaintiffs and Skeeters has appealed.

Plaintiffs-appellees failed to plead or prove in the court below that no administration was pending upon the estate of Mrs. Granger, and that no such administration was necessary. Such proof is jurisdictional in such cases. There are exceptions to the rule but the exceptions must be shown. Tyler Bank & Trust Co. v. Shaw, Tex.Civ.App., 293 S.W.2d 797, wr. ref., N.R.E., and authorities therein cited; Goss v. Phillips, Tex.Civ.App., 292 S.W.2d 700, no writ history, and authorities therein cited.

The failure to prove that no administration was pending upon the estate of Mrs. Cora Granger, deceased, being fundamental error, the judgment of the trial court is reversed and the cause remanded.