Murray's Estate , 216 Pa. 270 ( 1907 )

Opinion by

Mr. Justice Brown,

In the issue directed to the common pleas it was found that the agreement between W. P. Murray, the testator, and E. N. Miller, dated February 1, 1899, was recognized by the former up to the time of his death as being a valid and existing one, in full force and effect; that he had not elected to forfeit the lease for breach of any of its conditions; that at the time the appellee presented her petition on which the issue was granted the lease was in full force and effect as to her, the widow of W. P. Murray; and that there had been a substantial performance, or a bona fide attempt at performance, by the lessees of the covenants contained in the original lease and agreement of extension. The appellee, who was the plaintiff in the issue, requested the court to find as a matter of law that the agreement between her husband and Miller was a sale of the coal in place. The appellants, who were the defendants, made a similar request. The court found what each of the parties requested. The finding, without a request from either, would not have been error in determining the rights of the appellee. When the findings of the common pleas were certified to the orphans’ court it would have been error to refuse the. decree awarding the appellee one-half of the royalties received by R. H. Murray, executor, from the sale of the coal that had been mined, less his commission for collecting and paying the same. Decree affirmed and appeal dismissed at appellants’ costs.