Appeal, No. 436 | Pa. | Jul 11, 1894
Opinion by
This case depends on the construction of the will of Francis X. Christy, the general scheme of which is somewhat obscure. He left to survive him a wife and eight children. He was the owner of a large body of unimproved land near the town of Gallitzin in Blair county which was chiefly valuable for the coal measures known to underlie it. In preparing his will he-was evidently inops consilii, and made use of words that, however clear they may have seemed to him, were not well chosen. He seems to have considered his lands as having a surface value,, and a mineral value, that should be estimated separately, and-divided separately among his children. He made provision for his widow with which she appears to have been satisfied, and then undertook to divide his real estate equally among his eight children. But Agnes and Gallitzin, two of his children,, were living on parts of the land which were improved, and the-task which the testator proposed for himself was to make an-equal division of his estate and yet leave Agnes and Gallitzin in possession of their respective homes. In order to do this he-gave to Agnes “ the farm on which she now resides which is to be her share of my.estate,” and immediately added these words, “ should the coal be opened on said land or sold in a body, she, my daughter Agnes, to have equal share with the-other heirs.”
Taken altogether this provision means that the farm was to be in full of her share of the surface, but that she should be-entitled to her share of the mineral estate in whatever manner it might be turned into money. To Gallitzin he gave in like-manner the farm on which he lived, adding, “ the mineral right is reserved. He to pay out of his share of mineral right his note and store account due F. J. Christy.” This gift of the farm, like that to Agnes, was intended to be in full of his share of the surface. To show that it was the surface only that was to pass under this devise he reserved the mineral
It will be noticed that in the devise to Agnes the reservation of the mineral right appears by implication, while the gift to her of her equal share in its proceeds is in express words. On the other hand in the devise to Gallitzin the reservation is in express words and the gift of an equal share in the minerals is to be gathered only by implication. There is however no other ■construction that can be given to either of these devises that will not do violence to the intention of: the testator, which so ■clearly appears throughout the will, to treat his children alike, and divide his estate equally among them. When the property was sold to J. T. Christy, by the executor, and he executed a declaration of trust stating the manner in which he was to hold the title acquired by him, and that the sale was not to change the interest of any one interested in it under his father’s will, the sale became merely a mode of enabling the purchaser to make title to a vendee or lessee, as trustee for all the parties in interest. If he advanced money for them it does not appear that he ever asked for repayment. He now has, however, money in his hands sufficient to fully reimburse himself, and leave a balance due to each of the several parties in interest. He is asked to render an account of his receipts as trustee, and
The decree of the court below is reversed and the record remitted that an account may be taken as prayed for, and stated on the basis indicated in this opinion. So much of the fund as arises from the lease or sale of the surface is to be divided into six equal parts from which Agnes and Gallitzin are excluded. So much of it as arises from royalty upon, or purchase money of, coal is to be divided into eight equal parts, one of which is to be awarded to each of the testator’s children, or the legal representative of such child or children as may now be deceased.