
    25 So.2d 329
    GULF REFINING CO. v. GARRETT et al.
    No. 37419.
    April 30, 1945.
    On Rehearing Feb. 11, 1946.
    
      Lee & Emery and Cook, Lee, Clark & Egan, all of Shreveport, for petitioners and applicants F. J. Garrett and others.
    Turner B. Morgan, of Shreveport, for respondent Mrs. Mary McKinnon Garrett.
   O’NIELL, Chief Justice.

This is a concursus proceeding to determine the ownership of a fund in contest, The fund represents the 3/10 part of the Ys royalty due by the lessee, Gulf Refining Company, for oil produced from land owned by the defendants jointly. The oil was produced under a lease of 80 acres forming part of a farm called the Sherman Place, The Gulf Refining Company is only nominally the plaintiff, having no interest in the suit except to know who is entitled to this 3/10 part of the Ys royalty. Having deposited the fund in the registry of the Gourt, the company cited as defendants-Mrs. Mary McKinnon Garrett, widow of John L. Garrett, claiming all of the fund,on the one hand, and her five stepsons and three stepdaughters, and the three daughters and a son of a deceased stepdaughter, issue of a former marriage of John L. Gar-rett, also claiming all of the fund.

The Sherman Place, having an area of, about 129 acres, belonged to the matrimonial community between John L. Garrett and Mrs. Mary McKinnon Garrett. The lease of the 80 acres was made by John L. Garrett to the Gulf Refining Company on March 23, 1937, for the primary term of five years; but no well was drilled on the. land until a year after the death, of John L. Garrett. He died on May 14, 1941, survived by the five sons and three daughters of his first marriage, and by the four grandchildren, namely, three daughters and a son of a deceased daughter of the first marriage. The contest is between the heirs of the first marriage of John L. Garrett, on the one side, and the widow, on the other side.

John L. Garrett was survived also by three sons and three daughters of his marriage to Mrs. Mary McKinnon Garrett. The fund in contest is the 3/10 portion of the Ys royalty which belongs to the five sons and three daughters of the first marriage and the grandson and three granddaughters of the deceased Jphn L. Garrett, unless their 3/10 portion of the % royalty became the property of the widow by virtue of an agreement made on June 17, 1941, by and between her and the heirs of her deceased husband. The judge of the district court decided that the fund in dispute belonged to the heirs of the first marriage of John L. Garrett; but the court of appeal reversed the judgment, holding that the futid belonged to the widow by virtue of the contract dated June 17, 1941. The case is before us on a writ of review.

It is not disputed that Mrs. Garrett owns a half interest in the Sherman Place as surviving partner in the matrimonial community between her and the late John L. Garrett; nor is it disputed that she is entitled to the usufruct of the Ys interest inherited by her three sons and three daughters, in the Sherman Place. The only question is whether she acquired by the agreement dated June 17, 1941, the 3/10 portion of the Ys royalty interest which otherwise belongs to the other defendants, — heirs of the first marriage of john L. Garrett.

The legacy bequeathed by John L. Garrett to his wife was the usufruct of the farm called the Sherman Place, and was described in the following paragraph in his-will: “I give and bequeath unto my wife, Mary McKinnon, the following described property, to-wit: My undivided one half interest in * * * [describing the 129 acres of land comprising the Sherman. Place] * * * for her use and benefit as long as she shall live, afte r her death to be divided in equal amounts between, my surviving children or the heirs of any of the said children who may be dead. It being my intention that this land shall be held by my said wife until her death, for ner use and benefit, and then to be divided equally between my heirs.”

The widow and all of the heirs of John L. Garrett agreed among themselves that his will should not be probated; and, accordingly, it was not offered for probate. In a joint petition to the court, the widow and heirs accepted the succession unconditionally, and by an ex parte judgment were recognized, respectively, as the surviving partner in the matrimonial community and as the heirs of John L. Garrett. This judgment and the written agreement entered into between the widow on the one hand and the heirs of John L. Garrett on. the other hand were filed for record in the recorder’s office on the same day, and almost simultaneously; that is, the judgment was filed at 9:40 a.m. and the contract at 9:53 a.m. on July S, 1941; that is,- on the day on which the judgment was signed.

The farm called the Sherman Place, embracing the 80 acr|^ under lease to the Gulf Refining Company, was the family home. If the bequest of the Sherman Place to the widow for her use and benefit as long as she should live, and after her death to be divided among the heirs of the testator, was not the bequest of a usufruct it might have been deemed a prohibited substitution. Rev.Civil Code, arts. 1520 and 1522. The validity of the bequest, however, as giving to the widow the usufruct ■of the Sherman Place, was not questioned. On the contrary, all of the heirs of the testator, by their written agreement with the widow, on June 17, 1941", consented that the bequest to her should have effect. The agreement reads as follows:

“The above appearers [referring to the 18 heirs of John L. Garrett] do hereby agree, without any revocation, to the use ■of the property described herein below for the use of Mrs. Mary McKinnon Garrett, during her entire lifetime, and from which she shall have the revenues, and at the ■death of the said Mrs. Mary McKinnon Garrett said property will be divided under the laws of the State of Louisiana, it being understood that at this date the said Mrs. Mary McKinnon Garrett owns one half of the said property and that the other haif was inherited by these appearers on the death of the said John L. Garrett, but that said property is community property of the said John L. Garrett and Mrs. Mary McKinnon Garrett and by that fact an undivided one half belongs to her and one half belonged to said John L. Garrett and now to your appearers, and that - at the death of the said Mrs. Mary McKinnon Garrett her heirs will inherit her undivided one half of said property, which property is hereby described as follows, to wit: [describing the 129 acres comprising the farm called the Sherman Place].
* >|? * * * *
“It is further understood and agreed that the said Mrs. Mary McKinnon Garrett shall have full charge of said above described real estate, but shall not attempt to encumber said property or sell same to disadvantage of your appearers.”

The widow of John L. Garrett contends that this agreement, dated June 17, 1941, superseded the bequest of the usufruct, in the will of her husband, and gave her the right to receive, as her own, the 3/10 share of the heirs of the first marriage of her husband in the proceeds of any oil that might be produced thereafter by the Gulf Refining Company from the 80 acres covered by the lease dated March 23, 1937. She contends, alternatively, that this agreement, dated June 17, 1941, enlarged or extended her rights as usufructuary, so as to give her all .of the future revenues of the Sherman Place, — including as revenues all of the proceeds of any oil that might be produced thereafter from the 80 acres of land leased to the Gulf. Refining Company.

Inasmuch as the Sherman Place belonged to the ' matrimonial community between John L. Garrett and his second wife, she was entitled, under article' 916 of the Civil Code, to the usufruct of the 1/5 interest inherited by her three sons and three daughters; but she was not entitled under the law to the usufruct of the 3/10 interest inherited hy the heirs of the first marriage of her husband. See Succession of Williams, 168 La. 1, 121 So. 171. All that the widow could have acquired by the legacy in the will of her husband, therefore, if it had been admitted to probate, was the usufruct of the 3/10 interest inherited by the heirs of the first marriage of her husband, in the fafm called the Sherman Place.

Mrs. Garrett relies upon the fact that in her husband’s will he used the phrase “use and benefit” and the phrase “as long as she shall live”; whereas, in their written agreement, the widow and heirs of the testator used the words “use” and “revenues”, and the phrase “during her entire lifetime”. The heirs of the first marriage of John L. Garrett say that it was not intended, by the substitution of the words “use” and “revenues”, for the phrase “use and benefit”, to enlarge or extend the legacy of the usufruct of the Sherman Place,— so as to give to the legatee these heirs’ right to receive 3/10 of the proceeds of any oil that might be produced thereafter from the 80 acres leased to the Gulf Refining Company.

We concur in the opinion of the trial judge that the heirs of the first marriage of John L. Garrett did not intend by the agreement which they made with the widow of John L. Garrett on June 17, 1941, that it should have the effect of conveying to her these heirs’ 3/10 of the proceeds of any oil that might be produced thereafter from the 80 acres leased to the Gulf Refining Company. As far as these heirs were concerned the giving of the usufruct of the Sherman Place was a gratuitous transaction. Therefore, if the wording of the agreement has left any doubt about the extent of the right which these heirs conveyed to the widow of John L. Garrett, on June 17, 1941, the doubt must be resolved in favor of the grantors, and the agreement must be construed as giving to the widow only the usufruct of the grantors’ interest in the Sherman Place. Article 2474 of the Civil Code provides that any obscure or ambiguous clause in an act of sale must be construed against the seller, but in a gratuitous conveyance the rule is the other way; for it is declared in article 1717 of the Civil Code that if the extent of a legacy cannot be ascertained it must be decided to be for the least quantity. And in Bettison v. Avoyelles Land & Improvement Company, 120 La. 498, 45 So. 403, it was held: “An obscure clause in an act of sale will be construed against the vendor, but the rule is different as to uncertainty in an act of donation as between the donee and the donor and parties holding title under the latter.”

The widow and all of the heirs of John L. Garrett seem to have construed the agreement which they entered into on June 17, 1941, as conferring upon the widow no greater right than that of usufructuary of the interest owned by the heirs of the first marriage in the Sherman Place; because on that date the widow and all of the 18 heirs filed a joint petition in the Succession of John L. Garrett, asking the court to send them into possession of his estate; and in their petition they asked that the widow should be sent into possession as owner of a half interest in the Sherman Place and as usufructuary of the other half interest, belonging to the heirs of John L. Garrett, — thus: “Wherefore, petitioners pray that Mrs. Mary McKinnon Garrett be recognized as the surviving spouse in community of the deceased, entitled, as such, to the ownership of an undivided one half of the following described property, to wit: * * * [Here follows a detailed description of the farm called the Sherman Place], and to the usufruct thereof of the other undivided one half; and your other petitioners pray, that is, the children and grandchildren, pray to be recognized as the sole heirs of their deceased father, entitled, as such, to the ownership of the one undivided one half of all the property left by the deceased, particularly the real estate hereinabove described in this’ prayer, subject to the usufruct in favor of the surviving spouse of said community; and of the other real estate [be ing separate property of the deceased] described in paragraph five of this petition; and of all the personal property left by said deceased.” [The italics are ours.]

In response to that petition, filed jointly by the widow and heirs of John L. Garrett on June 17, 1941, the court rendered judgment on July S, 1941, recognizing and decreeing that the widow was entitled to one half of the community property of the estate, which included the Sherman Place, and recognizing and declaring her to be entitled to the usufruct of the half interest which was inherited by the heirs of John L. Garrett. The judgment also recognized, by name, the five sons and three daughters of the first marriage and the four grandchildren, as being the only heirs of the first marriage of John L. Garrett, and recognized, by name, the three sons and three daughters of the second marriage as being his only heirs by that marriage. It was decreed also in the judgment that the half interest inherited by the heirs of John L. Garrett, in the Sherman Place, was subject to “the usufruct of said property as provided by law”.

In fact, the widow of John L. Garrett, in her answer to this suit, averred that shortly after the death of her husband it was represented to her that, instead of having the will probated, it would be more economical for her and the heirs of her deceased husband to obtain a judgment sending her and the heirs into possession of the estate unconditionally, and recognizing her as the owner of half of the community property and as usufructuary of the other half, and recognizing the heirs of her husband as owning the other half of the community property, subject to the usufruct in favor of the widow. She annexed to her answer to this suit a copy of the agreement signed by her and the heirs of her deceased husband on June 17, 1941, and she averred that she made the same a part of her answer, “as if fully written herein”. She annexed also to her answer a copy of her husband’s will and averred that she made the will a part of her answer “as if fully written herein”. She averred also in her answer that the agreement dated June 17, 1941, was entered into in order to carry out the terms of the will, and was ' filed for record “within a few minutes after the judgment in the succession proceedings” was filed.

The record therefore convinces us that the widow and heirs of John L. Garrett did not intend, by the agreement which they signed on June 17, 1941, that she should have any greater right in the Sherman Place than the ownership of one-half and the usufruct of the other half interest, inherited by the heirs of the deceased. As usufructuary, the widow did not acquire title to the mineral rights, or mineral wealth, in the 3/10 interest inherited by the heirs of the first marriage of John L. Garrett in the 80 acres of land leased to the Gulf Refining Company. Rev.Civ.Code, arts. 533 and 552.

The widow averred in her answer to this suit that at the time of the death of her husband a tract containing 20 acres, forming part of the Sherman Place, and adjoining on the north side the 80 acres leased to the Gulf Refining Company, was under lease to the Ohio Oil Company and had one or more shallow wells thereon, and that immediately after the signing of the agreement between her and the heirs of John L. Garrett, dated June 17, 1941, all of the heirs of John L. Garrett signed, a division order, 'or transfer order, authorizing and directing the Ohio Oil Company to pay to her all of the royalty for oil that might thereafter be produced from the 20 acres of land, thus, — as she avers, — “clearly demonstrating that it was their intention that your respondent should receive the oil royalties from the Sherman Place under the agreement- that she should receive the revenues from the Sherman Place.” The shallow wells drilled by the Ohio Oil Company on the 20 acres were producing oil previous to and at the time of the death of John L. Garrett. They were producing there only small quantities of oil and produced very little if any oil after his death. As the wells of the Ohio Oil Company were in operation at the time when the usufruct in favor of the widow of John L. Garrett was created, it is not disputed that she was entitled, as usufructuary, to any royalties owed by the Ohio Oil Company for oil produced thereafter under that lease; because, under article 552 of the Civil Code, a usufructuary has a right to the proceeds of an oil well on the land subject to the usufruct, if the well was already drilled and producing oil at the time when the usufruct was created or established. It is so provided in article 552 of the' Civil Code, thus: “The usufructuary has a right to the enjoyment and proceeds of mines and quarries in the land subject to the usufruct, if they were actually worked before the commencement of the usufruct; but he has no right to mines and quarries not opened.”

That article ' is in harmony • with the proviso in article 533 of the Civil Code, defining usufruct, thus: “Usufruct is the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing” [Italics are ours.]

■ In the case of Elder v. Ellerbe, 135 La. 990, 66 So. 337, it was held that the right of a possessor of land in good faith to retain the “products” of the land, under article 502 of the Civil Code, or to retain the “fruits”, under article 3453, if evicted by a plaintiff proving his ownership of the land, did not give the possessor in good faith the right “to extract the mineral oil and gas from the land and retain the proceeds.” In so deciding it was declared that the right of the possessor in good faith in such a case, under articles 502 and 3453 of the Civil Code, “cannot be greater than the right of a usufructuary”, and that a usufructuary had no right to open a mine, and hence no right to drill an oil or gas well, and to appropriate the proceeds to his own use, if the mine was not opened or the well not drilled at the time of the creation or establishment of the usufruct. That decision was affirmed in Jackson v. Shaw, 151 La. 795, loc.cit. 799, 92 So. 339, loc.cit. 341, where it was held that the defendant, even though he possessed the land in good faith, was obliged to account to the plaintiff, as owner of the land, for the oil produced therefrom by the defendant. The court declared: “And the fact is that, even if he had possessed in legal as well as actual good faith, he still would owe this accounting; since oil and other minerals taken from the land by a possessor in good faith continue to belong to the owner of the land, and therefore must be restored to this owner along with the land — unlike in that respect to fruits, which pass into the ownership of the possessor in good faith as soon as reduced to possession by him. Elder v. Ellerbe, 135 La. 990, 66 So. 337.”

The ruling in Elder v. Ellerbe and in Jackson v. Shaw, that the production of mineral oil and gas is a mining operation, and the statement that it therefore comes under the provisions of article 552 of the Civil Code, referring to mines and quarries, is founded upon the several statutes declaring that the production of mineral oil or natural gas is a mining operation. We refer particularly to Section 2 of Act 144 of 1908 and to Section 2 of Act 254 of 1910, declaring that the supervisor of minerals shall see that all of the laws pertaining to mining, particularly those pertaining to the drilling of wells and the piping and consumption of natural gas and oil, are faithfully carried out.

In the case of Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 So. 867, 869, after a review of the statutes on the subject, it was declared: “From the above summary of the laws of 1908 and 1910, all referring to the subject of minerals, gas, oil, etc., we are forced to the conclusion that the Legislature has now classified oil and gas as minerals; and [has declared] those who are engaged in extracting them from the earth to be engaged in mining pursuits.”

And near the end of the opinion'rendered in that case, the court, referring to Act 196 of 1910, declared: “In view of the language used, we are constrained to hold the production of oil to be a mining pursuit.”

One of the arguments urged in support of Mrs. Garrett’s claim, that she is entitled to all of the royalties from oil produced from the well drilled on the 80-acre tract after the agreement dated June 17, 1941, was entered into, is that the royalty on oil or gas, in a mineral lease, is rent, and that rent is revenue. The argument refers to the third paragraph in article 545 of the Civil Code, where it is declared: ■“Civil fruits are rents of real property, the interest on money, and annuities.” But the word “rents” as used in that paragraph means the rent of a farm or house, — not the royalty stipulated in a mining lease; otherwise the paragraph would conflict with article 552 of the Civil Code, referring to the right of a usufructuary with regard to the “proceeds of mines and quarries.” And it would conflict with the proviso in article 533, defining “usufruct”, and limiting the right of the usufructuary to “all the profit” of the property subject to the usufruct, “provided it be without altering the substance of the thing.” [Italics ours.] The cases cited to support the argument for Mrs. Garrett in that respect are Logan v. State Gravel Co., 158 La. 105, 103 So.. 526, and Board of Commissioners of Caddo Levee District v. Pure Oil Co., 167 La. 801, 120 So. 373, and several other decisions, maintaining that the royalty stipulated in a mining lease is considered rent. Notwithstanding the royalty stipulated in an oil or gas lease may be considered as rent for certain purposes, or in some aspects, it is well settled now that the royalty stipulated in an oil or gas lease is not to be compared with the rent of a house or a farm. It is true that in the case of Gulf Refining Co. v. Glassell, 186 La. 190, 171 So. 846, 850, it was declared that a mineral lease, for the production of oil or gas, and a lease of a farm, should be placed in the same legal category, that is, as leases, conferring “personal rights and not real rights.” But the holding in that case was abrogated by the Legislature at its next session, by Act 205 of 1938, declaring that oil and gas leases and the rights resulting therefrom “are hereby defined and classified as real rights and incorporeal immovable property.” In the case of Amerada Petroleum Corporation v. Reese, 195 La. 359, 368, 196 So. 558, the court quoted with approval from Allison v. Maroun, 193 La. 286, loc.cit. 291, 190 So. 408, loc.cit. 409, the following observation : “It is a matter of general knowledge, and is conceded by all parties to this suit, that the cause which induced the Legislature to enact Act No. 205 of 1938 was the decision in Gulf Refining Co. v. Glassell, 186 La. 190, 171 So. 846, that the holder of a mineral lease had not a real right on the leased land and therefore could not institute successfully a petitory or possessory action. That the statute was enacted in consequence of that decision is emphasized by the provision in the second section, that the act shall apply as well to leases made previous to the passage of the act as to leases made afterwards.”

Therefore the ruling in Logan v. State Gravel Company and in like cases, maintaining that the royalty stipulated in oil and gas leases is to be considered as rent, is not applicable to this case.

Counsel for Mrs. Garrett cite the case of J. M. Guffey Petroleum Co. v. Murrel, Tax Collector, 127 La. 466, 53 So. 705, where it was held that a “mining operation” had to do with the working of a mine, and that an oil well was not a “mine” within the meaning of article 230 of the Constitution, of 1898, exempting property employed in mining operations from parochial and municipal taxes for a period of ten years. But the decision was based expressly. upon the rule that statutory exemptions must be strictly construed. The decision was rendered in 1910, since which time it is well settled that the drilling or operating of an oil or gas well is a mining operation.

The fact that the mineral lease of the 80 acres to the Gulf Refining Company was made before the death of John L. Garrett, and hence before Mrs. Garrett acquired the usufruct of the half interest inherited by the heirs of John L. Garrett, does not entitle her to the heirs’ share of the royalty on oil produced from the well drilled subsequent to the creation or establishment of the usufruct in favor of Mrs. Garrett. One reason for that is that the granting of the lease, although it gave to the lessee the right to drill on and produce oil from the leased premises after the death of the lessor, did not direct or indicate how or to whom any royalty that might become due or payable for oil produced from a well drilled subsequent to the death of the lessor should be paid. Besides, the well drilled on the 80-acre tract by the Gulf Refining Company was not drilled within the original term of the lease. The five year term of the lease expired on March 23, 1942. A few days before that date the Gulf Refining Company obtained from the widow and all of the heirs of John L. Garrett a written agreement authorizing the company to make the necessary pooling or unitization contracts for drilling on the 80 acres, and for that purpose allowing the company a period of 30 days in which to begin the drilling of a well on the 80 acres. The agreement was signed by the widow and heirs on different dates in the month of March 1942, namely, on the 4th, 10th, 11th and 12th day of that month; and the agreement was signed and accepted by the Gulf Refining Company on March 20, 1942, which was only three days before the lease would have expired. The company commenced the drilling of the well on April 4, 1942, and completed it as a commercial producer on May 10, 1942; that is, nearly a year after the widow acquired her usufruct on the half interest belonging to the heirs of John L. Garrett, on the 80 acres of land.

Mrs,. Garrett, in her answer to this suit, refers to the fact that her three sons and three daughters signed a division order, or transfer order, authorizing the Gulf Refining Company to pay to her their share of the royalty from the oil produced on the 80 acres, and that under the terms of the division order, or transfer order, she is receiving their share of the royalty. That may show how the sons and daughters of Mrs. Garrett have construed her rights, under the agreement dated June 17, 1941;. but that construction is not binding upon-the heirs of John L. Garrett by his first marriage. They declined to sign a transfer order, or division order, with reference to the royalties from the 80-acre tract.

Mrs. Garrett’s plea that the heirs of the first marriage of her husband, by signing the transfer order, or division order, au-l thorizing the Ohio Oil Company to pay to her all of the royalty that might thereafter he produced from the" 20-acre tract, “clearly demonstrates” that it was their intention that she should receive all of the royalties that might thereafter he due for oil produced from any part of the Sherman Place, is not well founded. On the contrary, the fact that all parties deemed it necessary that the heirs of John L. Garrett should sign a transfer order, or division order, authorizing the Ohio Oil Company to pay all of the royalty from oil produced from the 20-acre tract, is an indication that all of the parties considered that without such an ■order from the heirs of John L. Garrett the Ohio Oil Company would have no authority to pay their share of the royalty to the widow; otherwise they would have ■considered the agreement dated June 17, 1941, sufficient authority for the Ohio Oil Company to pay to the widow all of the royalty due for oil thereafter ■ produced from the 20-acre tract. This is particularly obvious when we consider that the well drilled by the Ohio Oil Company on the 20-acre tract was producing oil before and at the time of the death of John L. Garrett, — and when we consider that there is therefore no dispute about the right of the widow to collect and appropriate to her own use and benefit all royalties which the Ohio Oil Company owed for oil produced from the 20-acre tract after the usufruct was created.

Our conclusion is that the judgment rendered by the district court in this case is correct and should have been affirmed.

The judgment of the court of appeal is annulled and the judgment rendered by the district court is reinstated and affirmed. The costs of this proceeding are to be paid out of the fund deposited by the Gulf Refining Company in the registry of the court.

PONDER, J., dissents.

HAMITER, Justice

(dissenting).

Unquestionably, the claimants herein intended that their rights to the estate of John L. Garrett, deceased, should be determined solely by agreement among themselves, not by the provisions of decedent’s last will and testament. That this is true is shown by their failure and refusal to probate the will, by their having themselves sent and put in possession of the estate in an intestate succession proceeding, and by their assenting to the solemn declarations of the written instrument dated June 17, 1941. Their agreement, therefore, has superseded the will, and its provisions are controlling herein.

As to the construction and interpretation of the written contract, my views are in accord with those expressed by the Court of Appeal in the following language [24 So.2d 632, 634]:

“The agreement clearly and definitely provides that Mrs. Mary McKinnon Garrett was given certain rights with reference to the property described, which may be briefly stated as follows: The use of the property during her lifetime; the revenues from the property; full charge of the real estate described.
“In consideration of the above enumerated rights, Mrs. Garrett bound herself not to encumber or alienate the property to the disadvantage of the other parties to the agreement.
“It is to be observed that the rights granted went beyond the use of the property and specifically comprehended the enjoyment of the revenues arising from the property during the entire lifetime of Mrs. Mary McKinnon Garrett. Regarded in this light as a plain contract, the interpretation of the instrument presents no difficulty. Only by wandering from the four corners of the instrument itself and the reasonable interpretation thereof does the matter present involved questions of interpretation.
“Since ‘revenue’ indisputably includes rents, and since royalties under the well-established jurisprudence of Louisiana must be regarded as rents, we can only conclude that royalties accruing from the production of oil, under the plain provisions of the agreement at issue, belong to Mrs. Mary McKinnon Garrett during her lifetime.”

Accordingly, I respectfully dissent with the majority holding, my belief being that the judgment of the Court of Appeal should be affirmed.

FOURNET, Justice

(dissenting).

It is my opinion that the Court of Appeal for the Second Circuit, in a well-considered opinion, has given an accurate statement of the facts of this case and has properly disposed of the issues raised. See 24 So.2d 632. Its judgment should be affirmed.

When the widow and heirs of the late John L. Garrett executed the instrument of June 17, 1941, with respect to the property belonging to the community that had existed between Garrett and his wife, they agreed that the surviving widow would have the exclusive use and full charge of the realty belonging to the said community during her lifetime, as well as the revenues therefrom. They are bound by this agreement for, unaer the express provisions of the Revised Civil Code, it has the effect of law upon them and no one but the parties themselves can abrogate or modify it. Article 1945. See, also Larguier v. White, 29 La.Ann. 156; Union Tank Car Co. v. Louisiana Oil R. Corporation, 184 La. 121, 165 So. 638; Reconstruction Finance Corporation v. Mickelberry, 189 La. 105, 179 So. 49; and Vincent v. Bullock, 192 La. 1, 187 So. 35. It is also pointed out in this same article that “courts are bound to give legal effect to all such contracts according to the true intent of all the parties,” and this “intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.” (Italics mine.)

The language used in the agreement is clear and unambiguous. In no sense can it be said the same would lead to absurd consequences. Consequently, the court is without authority to wander beyond the four corners of the instrument and in construing the same to substitute a technical legal word that was not only not used in the instrument but was neither intended nor contemplated by the parties when the instrument was drawn, for it is not the province of the court to either alter by construction the plain and obvious intention of the parties or to make new contracts for them by resorting to extrinsic evidence. See Blakesley v. Ransonet, 159 La. 310, 105 So. 354; Wiley v. Davis, 164 La. 1090, 115 So. 280; and Moriarty v. Weiss on second rehearing, 196 La. 70, 198 So. 655. In other words, when parties have with openness and care and deliberation prepared and confected a contract that is couched in clear and unambiguous terms, it is the letter of these contracts that must prevail and not some supposed or remote intent of the parties that can be arrived at by the bending or twisting of some of the words with the result that an entirely different agreement than the one entered into is reached. The parties must be held to have understood what they expressed in plain English.

If the parties to the instrument of June 17, 1941, had had any intention of placing any limitations on the rights being granted the widow thereby, they could very easily have made a stipulation to that effect. That they did not intend to limit these benefits to the rights construed in the majority opinion is, I think, borne out by the fact that the instrument was obviously prepared by an attorney who, in its preparation, sought thereby to convey the true intention of the parties. Certainly it cannot be said the attorney did not know the difference between the granting to the widow of all of the revenues from the property and the granting to her of the mere usufruct thereof. Unless the parties meant by this instrument to grant the surviving widow all of the revenues from the property, the execution thereof was vain and useless, for the widow was entitled to the usufruct of the property under the will of her deceased husband and she received no benefit or advantage when she bound herself by the instrument not to alienate or encumber the property, an undivided half of which she owned unqualifiedly, during her lifetime.

I therefore respectfully dissent from the majority holding.

On Rehearing

HAMITER, Justice.

To restate the material facts of this case chronologically and as briefly as possible, for the purpose of giving expression to our views on the rehearing, John L. Garrett, on March 23, 1937, executed in favor of the Gulf Refining Company an oil, gas and mineral lease having a primary term of five years and affecting the West Half of Southwest Quarter (W% of SW%) of Section 24, Township 23 North, Range 8 West, Claiborne Parish, Louisiana. This property, being part of a farm known as the Sherman Place, belonged to the community of acquets and gains existing between him and his second wife, Mrs. Mary McKinnon Garrett, it having been acquired during their marriage.

On May 14, 1941, John L. Garrett died. Surviving were children and grandchildren of his first marriage and also his widow and some children of the second marriage. The last will and testament left by him provided that his one-half interest in the above land, as well as in other property, be held by his widow, Mrs. Mary McKinnon Garrett, for her use and benefit as long as she shall live, and after her death to be divided between his heirs. Instead of offering the will for probate, the widow and the descendants of both marriages joined in a petition to the court, as if in an intestate succession, in which they averred an acceptance of decedent’s estate unconditionally and prayed to be recognized, respectively, as the surviving spouse in community and the sole heirs at law of John L. Garrett. By an ex parte j'udgment dated July 5, 1941, the petitioners were so recognized, and in the named capacities they were placed in possession of the property. On the same day there was recorded in the Conveyance Records of Claiborne Parish a contract signed by the widow and heirs, describing the Sherman Place and bearing date of June 17, 1941, in which the following was recited:

“The above appearers do hereby agree, without any revocation, to the use of the property described herein below for the use of Mrs. Mary McKinnon Garrett, during her entire lifetime, and from which she shall have the revenues, and at the death of the said Mrs. Mary McKinnon Garrett said property will be divided under the laws of the State of Louisiana, it being understood that at this date the said Mrs. Mary McKinnon Garrett owns one-half of the said property and that the other half was inherited.by these appearers on the death of the said John L. Garrett, but that said property is community property of the said John L. Garrett and Mrs. Mary McKinnon Garrett and by that fact an undivided one-half belongs to her and one-half belonged to said John L. Garrett and now to your appearers, and that at the death of the said Mrs. Mary McKinnon Garrett her heirs will inherit her undivided one-half of said property, * * *.
* * h= * *
“It is further understood and agreed that the said Mrs. Mary McKinnon Garrett shall have full charge of said above described real estate, but shall not attempt to encumber said property or sell same to disadvantage of your appearers." (Italics ours.)

On March 20, 1942, the Gulf Refining Company consummated with the widow and heirs of John L. Garrett an agrees ment, styled a Pooling and Unitization Contract, respecting the oil, gas and mineral lease obtained by the former from John L. Garrett on March 23, 1937. . Un,der the agreement, confected three days prior to the expiration of the original lease, the Gulf Refining Company obligated itself to commence operations within 30 days for the drilling of a well on the 80 acres, to a depth below 3,000 feet from the surface, and to make a bona fide test of what is known as the Pettit Zone formation.

Drilling operations contemplated by the agreement of March 20, 1942, were begun on April 4, 1942, and a producing well was completed on May 10, 1942.. From the date of commencement of production until September 30, 1942, the Gulf Refining Company purchased the royalty oil (% royalty due under the terms of the lease), and sought to make payment of the proceeds to the lessors.

As to a .032733 royalty interest, however, a dispute developed between Mrs. Mary McKinnon Garrett on the one hand and the children and grandchildren of Mr. Garrett’s first marriage on the other, the basis of which was the above-quoted contract entered into by the- parties under date' of June 17, 1941. Mrs. Garrett’s position was that by such contract she should receive in full and perpetual ownership all of the revenues from the Sherman Place during her lifetime, including the proceeds from any oil wells drilled on the land, in consideration for which she obligated herself not to alienate or dispose of any part of the property (she owned a community one-half interest therein) ; her opponents insisted that the instrument gave her only the usufruct of the interest in the land which they inherited and that the proceeds from the well in question were not affected by that usufruct.

In view of that disagreement the Gulf Refining Company, in this cause, deposited the proceeds of the disputed royalty interest in the registry of the court for the purpose of having payment made to the person or persons judicially determined to be entitled thereto.

The district court, after a trial in which there was excluded all evidence tending to show the intention of the parties in the execution of the mentioned contract, rejected Mrs. Garrett’s demands and decreed the deposited funds to be the property of the children and grandchildren of Mr. Garrett’s first marriage. In reaching this result, the judge reasoned in part: “We are satisfied that the instrument clearly conveys a usufruct. * * * We think the purpose clearly was to give her the same usufruct of the portion inherited by the children of the first marriage that she had by law over that falling to her own children.”

The Court of Appeals, by a unanimous decision, reversed that judgment and awarded the funds to Mrs. Garrett. 'The Court commented that “the words of the contract * * * are clear and explicit”, that “the rights granted went beyond the use of the property”, and that “royalties accruing from the production of oil, under the plain provisions of the agreement at issue, belong to Mrs. Mary McKinnon Garrett during her lifetime.”

On the original hearing in this court and with three members dissenting, the cause having reached here on a writ of certiorari or review, the judgment of the Court of Appeal was annulled and that of the district court reinstated and affirmed. By the granting of a rehearing, however, both the decree and the entire supporting opinion of this court gn such original hearing were set aside and vacated.

In reaching the conclusion announced in the majority opinion on the original hearing that the widow and heirs of John L. Garrett seem to have construed their agreement of June 17, 1941, as conferring upon the widow no greater right than that of usufructuary of the interest owned by the heirs of the first marriage in the Sherman Place, consideration was not restricted to the express words of that instrument; rather there were also considered the provisions of the will of decedent John L. Garrett (which was never probated), certain allegations contained in the answer filed in this cause by Mrs. Garrett, and the record in the succession proceeding through which the widow and heirs of Mr. Garrett were placed in possession of the estate. The use of such extrinsic evidence in the interpretation of the disputed contract was justified in the mentioned majority opinion by the observations that Mrs. Garrett in her answer herein referred to the intestate proceeding as being a more economical method for settling the estate of her husband, that she attached to and made a part of such answer the last will and testament of decedent, and that she averred that the agreement of June 17, 1941, was entered into in order to carry out the terms of the will.

On further examination of Mrs. Garrett’s pleadings herein, along with the referred to documents, we are not now certain that by them she seems to have construed the contract as conferring upon her only a usufruct of the interest owned by the heirs of the firsdfenarriage. Notwithstanding that the will of -her late husband was annexed to and made a part of her answer and that she used the above-recited averments, she specifically alleged that the will of Mr. Garrett “provided that your respondent should inherit from him the Sherman Place * * * and that she would have the full use, benefit, revenues and income therefrom * * * Further, with reference to the execution of the contract in dispute, she averred that it was intended that “she would have the use and benefit, with the right to receive all the revenues, from the Sherman Place * * * It is quite possible, in other words, that at all times since the execution of the contract she has construed the instrument as granting to her in perpetuity the entire income from the property, including the proceeds of the oil royalties involved in this cause.

It is elementary that in the interpretation of a contract the court must give legal effect to the instrument according to the true intent of all the parties, and such intent is to be determined by the words used therein, without the aid of extrinsic evidence, when these are clear and explicit and lead to no absurd consequence. Revised Civil Code, Article 1945; Hello World Broadcasting Corporation v. International Broadcasting Corporation, 186 La. 589, 173 So. 115; Rudman v. Dupuis, 206 La. 1061, 20 So.2d 363. Where, however, the instrument is so ambiguous that it creates doubt as to what the parties intended, extrinsic evidence may be resorted to as an aid in its construction. Bank of Napoleonville v. Knobloch & Rainold, 144 La. 100, 80 So. 214; Holloway Gravel Company, Inc., v. McKowen, 200 La. 917, 9 So.2d 228; Rudman v. Dupuis, supra.

As before shown, the district judge on the trial of this cause excluded all extrinsic evidence that was offered for the purpose of showing the intent of the parties in the execution of the contract, in which the heirs agreed “to the use of the property • described herein below (Sherman Place) for the use of Mrs. Mary McKinnon Garrett, during her entire lifetime, and from which she shall have the revenues * * * ”, such judge taking the position that the instrument was free of ambiguity; and thereafter, in support of his judgment rejecting Mrs. Garrett’s demands, he held that “the instrument clearly conveys a usufruct.” The Court of Appeal likewise thought that the words of the contract are clear and explicit; but it concluded that from the language thus employed the rights granted to Mrs. Garrett went beyond the mere use of the land and specifically comprehended the enjoyment of all revenues in complete ownership, including the royalties accruing from the production of oil, arising from the property during her lifetime. In the majority opinion of this court on the original hearing, no comment was offered on the question of whether or not the words of the contract are clear and explicit. But the reasons assigned for the judgment rendered disclose that in the interpretation of the instrument resort was had to extrinsic evidence (the will and the record in the succession proceeding), a procedure that is sanctioned in law only when a contract is uncertain or ambiguous.

On giving further consideration to the' instant contract we have decided that it is attended with ambiguity sufficient to leave the mind in doubt as to the true in-tention of the parties and, further, that a resort to extrinsic evidence as an aid in its construction would be permissible and appropriate. Influencing, but not entirely responsible for, the decision are the diverse interpretations placed on the contract by the several judges who have heretofore passed on it. The extrinsic evidence should not be restricted, however, to that furnished by Mrs. Garrett’s pleadings in this cause, which alone was before this court on the original hearing; rather all admissible evidence, both documentary and parol, that tends to show what was intended by the agreement, should be received and considered. Consequently, for the purpose of affording the respective litigants the opportunity of offering proof of that kind the case will be remanded to the district court.

Authority for our remanding this case to receive additional evidence is also furnished by Code of Practice, Article 906, in which it is said: “But if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions .as to the testimony which it shall receive, to the end that it may decide according to law.”

The procedure outlined in this article is authorized so that the interests of justice may be better served.

For the reasons assigned (the original decree and opinion of this court having been previously vacated by the granting of the rehearing) it is now ordered that the judgment of the Court of Appeal, as well 4S of the district court, be reversed and set aside and that the case be remanded to the district court for the purpose of hearing and receiving additional evidence respecting the intention of the parties in the execution of the contract of date June 17, 1941. At the conclusion of the hearing the district court shall render judgment, according to law, on the evidence heretofore and to be adduced. All costs shall await the final determination of the litigation. The right to apply for a rehearing is reserved to all the litigants.

ROGERS, Justice

(dissenting).

With all due respect for the views expressed in the majority opinion, rendered on rehearing, I feel compelled to differ from them and in the conclusions to which they lead. I do not find any substantial ground for the remand of the case in order to permit the introduction of extrinsic evidence to show the intention of the parties in executing the contract of June 17, 1941. The case was fully tried in the district court, heard by the Court of Appeal and considered by this Court on both the original hearing and rehearing. All the relevant evidence is in the record, and the Court should review and decide the case on the record as it is now made up.

The only extrinsic evidence that was offered and excluded on the trial of the case in the district court was the oral testimony of M. M. Morelock, the attorney who prepared the agreement entered into by the heirs of John L. Garrett and his surviving widow, Mrs. Mary McKinnon Garrett, and also a certain letter written by Mr. More-lock to J. B. Garrett, of Haynesville, Louisiana. Mr. Morelock, as a witness for the heirs of Garrett by his first marriage, was asked on direct examination what the parties to the instrument he had prepared intended to convey thereby. On objection by counsel for Mrs. Mary McKinnon Garrett that the agreement was not ambiguous and was satisfactory to him, the trial judge excluded the testimony. On cross-examination Mr. Morelock was asked and admitted that he had written the original of a carbon copy of the letter which was shown to him by counsel for Mrs. Garrett. The letter was dated May 17, 1941, and addressed to J. B. Garrett, at Haynesville, Louisiana. Asked if he had sent copies of the letter to the various children, Mr. Morelock replied that he thought a copy was sent to every one of them. When counsel for Mrs. Garrett offered the letter in evidence, counsel for the children of the first marriage of John L. Garrett objected to the offer and the objection was sustained for the reason as announced by the trial judge that he had ruled “in support of the contention of counsel that the agreement is not ambiguous,” and therefore there was no question as to intention. Whereupon, counsel for Mrs. Garrett stated that he was not offering the letter for the purpose of showing intention, “but for the purpose of showing the background leading up to the execution” of the agreement. In response to counsel’s statement, the trial judge announced his ruling as follows: “I see no occasion when the agreement is not ambiguous for going into the background. Objection sustained.” Even if the testimony and letter of Mr. Morelock were improperly excluded, which I do not concede, there is an entire absence of any showing that if this evidence were admitted it would change the result reached by this Court on the original hearing.

On further consideration of the case, in connection with the arguments of counsel on rehearing, I remain convinced that the reasons set forth in our original opinion are sound and that our decree based thereon should be reinstated and made the final judgment of this Court.

O’NIELL, Chief Justice

(dissenting).

I respectfully decline to subscribe to the remanding of this case to the district court, because I see no good reason why the case should be remanded — especially at this late stage in the proceedings — and without any suggestion by any party to the suit that the case ought to be remanded.

The parties have had ample time to complain, either in the court of appeal or in this court, if they or any one of them felt aggrieved by the ruling of the judge excluding the so-called extrinsic evidence. The only evidence that was excluded was, first, the testimony of the attorney who prepared the agreement which forms the basis of this contest, and, second, a carbon copy of a letter written by him to one of the stepsons of Mrs. Garrett. The attorney was tendered as a witness for the stepchildren of Mrs. Garrett, and the objection to the admissibility of his testimony was made by the attorney for Mrs. Garrett. The ruling excluding the testimony was acquiesced in by the attorney for the stepchildren ; hence neither he nor the attorney in whose favor the ruling was made could complain of it, consistently. In fact neither of them has complained of the ruling.

The attorney who offered the carbon copy of the letter in evidence also acquiesced in the ruling excluding the evidence. He had the right to bring the carbon copy of the letter before the appellate court for consideration, by objecting and excepting to the ruling excluding it, and by attaching to his objection and exception the carbon copy which he had offered in evidence.

The issue in this case is very simple. John L. Garrett in his will undertook to bequeath to his widow the usufruct of the farm called the Sherman Place. She was entitled by law, R.C.C. art. 916, to the usufruct of the 1/5 interest inherited by her children from their father, but was not entitled to the usufruct of the 3/10 interest inherited by her stepchildren. The purpose of the will, obviously, was to give to the widow the usufruct on all of the % interest in the property inherited by all of the children of the testator, John L. Garrett. The testator did not use the term “usufruct” in his will, but declared: “I give and bequeath unto my wife, Mary McKinnon, the following described property, to-wit: My undivided one half interest in * * * [describing the 129 acres of land comprising the Sherman Place] * * * for her use and benefit as long as she shall live, after, her death to be divided in equal amounts between my surviving children or the heirs of any of the said children who may be dead. It being my intention that this land shall be held by my said wife until her death, for her use and benefit, and then to be divided equally between my heirs.”

Obviously, there must have been some doubt about whether the bequest of the property to the widow, for her use and benefit during her lifetime, might be construed as a prohibited substitution, and hence null so far as the stepchildren were concerned, under article 1520 of the Civil Code, but, if the bequest should be considered as the giving only of the usufruct of the stepchildren’s share of the property to the widow of the testator, the bequest would be valid under the terms of article 1522 of the Civil Code. Therefore, in order to carry out the terms of the will, under an interpretation that would make it valid, the widow and all of the children of the testator entered into the agreement, by which she was given the usufruct of the share of her stepchildren, in addition to the usufruct which she was entitled to, of the share inherited by her own children. Hence they agreed that the will should not be probated but that she should be sent into possession of the property unconditionally, as ovtner of one-half and usufructuary of the other half, and that the children of the deceased should be recognized as owners of the one-half of the property, subject to the usufruct in favor of the widow. That agreement was carried out by a joint petition signed by the widow and all of the children of the deceased, and by- the judgment of the court sending the widow into possession of the property as owner of one-half and usufructuary of the other half, and as recognizing all of the children to be the owners of the other half of the estate, subject to the usufruct in favor of the widow. The only effect of this petition and judgment was to invest the widow with the usufruct of her stepchildren’s share of the property, she being already legally entitled to the usufruct of her own children’s share. She acknowledged in her pleadings in this case that the purpose of the agreement, which was signed contemporaneously with her taking possession of the property under the judgment of the court, was to carry out the terms of the will. She annexed the will to her pleadings in this suit, and averred that she made the will a part of her answer “as if fully written herein”. The will therefore formed a part of her judicial declaration that the purpose of the contemporaneous agreement entered into between her and the heirs of her deceased husband, on June 17, 1941, was to carry out her husband’s will. That is why we gave due consideration to the judicial declarations and admissions of Mrs. Garrett, and did not consider these declarations and admissions merely as “extrinsic evidence” of the intention of the parties to the agreement dated June 17, 1941. According to article 2291 of the Civil Code, a judicial admission, or declaration, which a party makes in a judicial proceeding, amounts to full proof against him. The judicial declaration of coufse cannot be divided against the party making it; all of the facts stated must be considered together. But that does not mean that the conclusions of law, stated in the pleadings in which a party makes a judicial adtnission of fact, must be accepted as true. In this case Mrs. Garrett’s admission that the purpose of the agreement made on June 17, 1941, was to carry out the terms of the will, — together with her making the will a part of her declaration, — is not affected in any way by her conclusion of law with respect to the effect of the agreement.

It is stated in the prevailing opinion rendered on rehearing in this case that Mrs. Garrett gave a consideration for what was given her by the contract dated June 17, 1941. It is said: “in consideration for which she obligated herself not to alienate or dispose of any part of the property (she owned a community one-half interest therein).”

I respectfully submit that the statement made in the contract dated June 17, 1941, that Mrs. Garrett should not attempt to encumber or sell the real estate to the disadvantage of the heirs of John L. Garrett, was not stated as a consideration for what she received by the contract. The statement was made merely as an explanation of Mrs. Garrett’s right to have possession and charge of the Sherman Place. The statement in the contract is as follows: “It is further understood and agreed that the said Mrs. Mary McKinnon Garrett shall have full charge of above described real estate, but shall not attempt to encumber or sell same to the disadvantage of your appearers [heirs of John L. Garrett]”.

It is not at all likely that any person or group of persons owning an undivided 3/10 interest in a farm would deem it a real consideration for a transfer of the usufruct on the 3/10 interest in the farm, together with a transfer of 3/10 mineral interest therein, to a co-owner having already an undivided half interest in the farm and having the usufruct of an additional 1/5 interest, that the transferee should promise not to “attempt to encumber or sell same [the real estate] to the disadvantage of” the transferor or transferors. Mrs. Garrett, notwithstanding she was given “full charge of above described real estate [known as the Sherman Place]”, could not legally “encumber or sell same to the disadvantage of” her stepchildren, — any more effectively before than after agreeing not to attempt to do that. I do not believe that either her children or her stepchilden ever feared or anticipated that she might attempt to encumber or sell the Sherman Place to their disadvantage. The paragraph on that subject was written into the contract by its draftsman merely in explanation of the right of the usufructuary to “have full charge of above described real estate.” The transfer of the usufruct of the 3/10 interest in the Sherman Place, to the widow by her stepchildren, was a gratuitous donation, made for the purpose of carrying out the will of her husband,— as declared by the widow in her pleadings in this suit, — and as shown by the judgment obtained by her and the heirs of John L. Garrett, placing her in possession of his estate as owner of one-half and usufructuary of the other half of the estate. The only question in the case therefore is whether the usufructuary is entitled to take and retain for herself the 3/10 mineral interest in her stepchildren’s share of the land. That is a question of law, to be decided from the proven and admitted facts in the record.

I respectfully submit that the remanding of this case is unique in several respects. In the first place it is extraordinary in that the remanding is done not by the court to which the case was appealed, but by the court to which the case was brought finally on a writ of review. It is extraordinary in that the remanding is done after the case has been decided and is pending on rehearing, and in that none of the parties to the litigation is complaining of the exclusion of the evidence, for the introduction of which the case is being remanded. The parties have had an unusually long time in which to make the request if any of them wanted the case remanded. The suit was filed in the district court on October 15, 1942, and was tried there on January 28, 1943; that is, more than three years ago. The appeal was filed in the court of appeal on May 17, 1943; the petition for a review of the judgment of the court of appeal was filed in the supreme court on December 31, 1943; and the writ of review was issued and the original record was filed in this court soon afterwards. The case was first argued and submitted to the supreme court for decision on November 14, 1944, that is, a year and three months ago. The case was ordered reargued on January 31, 1945, and was argued and submitted again for decision on March 26,, 1945. The case was actually decided by this court on April 30, 1945, that is, more than nine months ago. A rehearing was granted on June 5, 1945; and the case was again argued and submitted for decision on December 10, 1945. If history should repeat itself, so far as the law’s delay in this case is concerned, we will have an opportunity to dispose of the case finally about three years from the date on which the district judge will receive the new evidence for which the case is being remanded. If the case maintains its previous schedule on its way through the courts we will dispose of it finally, say, sometime in April or May 1949. I have given the dates from the record to show that the remanding of this case is not only uncalled for — in the true sense of the term — and not warranted by article 906 of the Code of Practice — but will result in a hardship in preventing the payment for a very long time of that part of the royalty which should be paid either to the children and grandchildren of the first marriage of John L. Garrett or to his widow. My own opinion, of course, is that the money should be paid to the children and grandchildren of the first marriage of John L. Garrett, and hence that the judgment which we rendered on April 30, 1945, should be reinstated and affirmed and made the final judgment of the court. I say this because the title under which Mrs. Garrett was placed in possession of the Sherman Place was the judgment which she and the heirs of her deceased husband asked for and obtained from the judge of the district court. That title gave her the possession of the Sherman Place only as usufructuary, as far as the.half interest belonging to the heirs was concerned. A usufructuary, according to the definition in article 533 of the Civil Code, has the right to “all the profit, utility and advantages which it [the property subject to the usufruct] may produce, provided it be without altering the substance of the thing.” Accordingly, the word “revenues” in the contemporaneous agreement made between Mrs. Garrett and the heirs of her deceased husband on June 17, 1941, means the revenues from the products of the farm. The “revenues” to which a usufructuary is entitled does not mean the mineral rights in the land subject to the usufruct, because taking the oil, gas or other minerals from the land of another would be “altering the substance of the thing.”  