McClintock v. Dana , 106 Pa. 386 ( 1884 )

Mr. Justice Clark

delivered the opinion of the court,

The testatrix, Sarah IT. Woodbury, af the time of the making of her will, and at her death, was the owner of one undivided fifth part of the coal, in and under a certain tract of land, in the township of Kington, County of Luzerne, containing one hundred and sixty-eight acres and forty perches; she had no interest in the surface; that was hold in fee by Emily L. Wright, one third; Augusta McCliutock, one third; and the heirs and devisees of Ellen E. Rutter deceased, one third. There was, therefore, in the condition of the title, a severance of the surface from the underlying strata of coal; how that severance was effected we are not informed. The possession and ownership of the coal was and is distinct and independent of the surface.

By her last will and testament the testatrix, after providing for the payment of her debts, and certain legacies therein created, bequeathed and devised all the rest and residue of her estate, real, personal and mixed, to trustees, upon the trust:—

First — To invest the personal estate, and the proceeds of the real estate, in such securities as they may deem safe, and to apply so much of the interest and yearly income thereof as may be necessary to the support of her daughter, the appellee, until she should attain the age of twenty-one years, the balance of the income of the residuary estate to bo securely invested as aforesaid.

Second — When her said daughter should attain the age of twenty-one years to pay over to her yearly, during her life, “ the entire yearly interest and net income of her said residuary estate, and the yearly interest and net income of any and all accumulations thereof for her sole and separate use.”'

Third — After the death of her said daughter, to pay over the entire personal estate, and convey the real estate that may remain, as by the will is further directed.

She gave to her trustees, and the survivor of them, full power and authority either to lease “ for any term of years,” or “to grant, bargain and sell” her real estate at such time, on such terms and for such prices, as they might deem most for the benefit of her estate.

On the first day of July, 1882, the trustees, pursuant to the powers conferred by the will, joined with their co-tenants in an instrument of writing, which-is denominated a “lease,” and “leased” to the Lehigh Valley Coal Company “all the coal,” in or under the tract of land already referred to, “ with the right to mine and remove said coal until all the coal in, under and upon said tract of land, shall have been exhausted,” the lessees yielding- and paying therefor twenty-five cents per ton of 2240 pounds, for all coal larger than pea coal, during the first ten years, and thirty cents thereafter; the royalty on pea coal to bear the same proportion to the royalty on other coal as the market price of the former bears to the latter, but in “ computing the minimum tons of coal to be paid for annually, pea coal not to be considered;” the minimum rent or royaltjr for the first year to be $8,412.50, for the second year $12,618.75, and for each and every year thereafter $16,825. The lessees reserved the right of reimbursement, in coal larger than pea coal, for payments in excess of the quantity mined, and agreed to pay for all coal mined, over and above the minimum amount, at the price and rates per ton specified. Provision is made also for the ascertainment, from time to time,' of the precise quantity of coal mined, and for the payment of the rent or royalty in quarter yearly installments, the lessors reserving the right to forfeit and annul the lease,'in case of three months default in payment. The lessees agree to pay all the taxes, assessed or to be assessed, on the coal demised.

The question here directly involved, as in Eley’s Appeal (7 Out., 300), is to be determined according to the intent .of the testatrix; the daughter’s rights are commensurate with that intention, which being established the technical character of the rental becomes unimportant.

The daughter was the main object of the testatrix’s solicitude — she was an only child, and her marriage was then in contemplation; the .whole scheme of the will is to provide abundantly for her, and to-make her secure in the enjoyment of that provision. The coal in place was to her valueless; the powers given to the trustees were for her benefit, and extended her right of enjoyment beyond that of a mere life tenant. Her interest was but an equitable one, and for life; the mines were unopened, but her right was not as tenant for life, by the act of the law, but by the will of the owner, and that will provided the means by which an income might be realized.

If tlie mine was opened and operated under the power to lease, it was, beyond doubt, the testatrix’s intention that her daughter should receive the profit of it, no matter with what force or energy the operations might be conducted ; if it was sold outright, then she should have the yearly interest upon the proceeds. Her income, therefore, from this coal was to be computed either upon the basis of the operation of the mine, or upon the proceeds of ah actual sale. By a sale, however, tlie testatrix doubtless intended a conveyance of the property for an ascertained sum, paid in hand or properly secured, in the form usually pursued in the sale of real property. She certainly never intended that her daughter should receive merely tlie interest upon installments representing the actual annual profit or yield of the mines ; if she was to participate upon mere profits or yield, she was entitled to these wholly; if in the sole value of tlie coal, then she was entitled to tlie interest only. The authority to lease or sell the coal, which was vested by the will in the trustees, and was exercised by them, so far as the present inquiry is concerned, places the rights of the cestui que trust upon the same footing as if that power had been exercised by the testatrix in her lifetime. What was done under the authority of the will is to be considered as if done by the testatrix herself. If tlie instrument of writing, hero styled a lease, had been executed by Sarah II. Woodbury in her lifetime, and the mines had been in operation under it at her death, her intention as expressed in her will could not be mistaken. The word “income” is defined as the gain which accrues from property, labor and business; in the language of the will it is more specifically defined, in this ease, as “ the yearly proceeds of the real estate.” In its ordinary and popular meaning, or as defined by the contract, it would be clearly applicable to the periodical payments accruing upon tlie contract with the Lehigh Valley Coal Company.

Nor is there any provision, express or implied, in the will that the incomes are to be accumulated for those in remainder. The accumulations referred to in the will clearly consist of tlie balances of the income of the residuary estate remaining after the withdrawal of “so much” as was necessary for the support of the daughter during minority; the trust for accumulation is for the benefit of tlie first taker, and is expressly limited to the period of minority. Hxpressio unius esi exclusio altering. This case is, we think, in all points, similar to Eley’s Appeal, supra. We can discover no appreciable difference between that case and this, and the conclusions arrived at in one seem to bind us in determining the other.

The judgment is affirmed.

Chief Justice Mercur dissented.