Appeals, Nos. 12, 13 and 14, March T., 1955, from decree of Court of Common Pleas of Cambria County, Dec. T., 1949, in Equity, No. 4, in case of Katherine Agnes Stineman et al. v. Katherine R. Stineman et al. Decree reversed.
P. D. Larimer, with him Englehart, Larimer & Englehart and Shettig, Swope & Shettig, for appellants.
A. A. McDonald, with him Harry Doerr and Myers & McDonald, for appellees.
R. E. Porter, with him Greenwell & Porter, for J. Wilbur Stineman, appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Appellants, grandchildren and heirs of the testator, Jacob C. Stineman, filed a bill of complaint in equity for a partition of real estate devised by testator, including so-called coal and fire-clay real estate. Preliminary objections were sustained as to the real estate which contained coal and fire-clay, and the bill as to said land was dismissed, on the theory that the will created a trust with respect to such real estate, and that an absolute gift to named children of testator had been cut down by subsequent testamentary language to a lesser estate. Neither the interpretation nor the conclusion can be sustained.
In the Fourth paragraph of his will testator gave to named trustees the sum of $5,000 in trust for the persons and purposes therein clearly and specifically set forth. He then provided as follows: "Item. All the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath the same to my following named children: Albert M. Stineman, W. I. Stineman, Harvey C. Stineman, Netti M., intermarried with George A. Slick, Oliver M. Stineman and Jacob Wilbur Stineman, share and share alike, to have and to hold the same to them and to their heirs and assigns, forever. Jacob C. Stineman.
"It is my will and desire that the coal and fireclay in the real estate of which I may die seized, shall be retained by my children hereinbefore named, and that the same be operated under leases made in my lifetime, or under leases to be made by my Executors hereinafter named, or the survivor of them, which leases shall have the same force and effect as though made by me, and that no sale coal and fire-clay be made unless such sale meets with the approval of all of my children hereinbefore named, or the heirs*fn* who may inherit unde the provisions of this, my last will and testament, by reason of the decease of his, her or their parent; this provision, however, not to prevent or limit the sale of any portion of the coal or fire-clay of which I may die seized under like terms and conditions. In the event of the sale of the coal and fireclay in the real estate of which I may die seized, under the provisions and restrictions herein mentioned and for which royalties are parable to my estate, part of which is herein bequeathed to my wife, Ellen Stineman, for the term of her natural life, then and in that case I direct that a sum equivalent to six (6%) per
centum of the amount realized from such sale, be set apart by my Executors hereinafter named, or the survivor of them, and invested in good real estate or other security or securities, and the income derived therefrom to be paid to my said wife in quarterly installments for and during the term of her natural life, ...