Appeal from decree of Court of Common Pleas of Lawrence County, March T., 1968, No. 65, in re estate of Rolla D. Walter, deceased.
W. Walter Braham, with him Chris J. Mitsos, and Braham and Mitsos, for appellant.
Kenneth M. McLure, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
Rolla Walter (testator), a Lawrence County resident, on July 20, 1962, executed his last will; on September 30, 1964, he executed and delivered to a coal company a written instrument purporting to be a "coal lease;" he died on May 6, 1966. The issue on this appeal is: what was the effect, if any, of the execution and delivery of the "coal lease" on a specific devise contained in testator's will of testator's "farm," overlying the "leased" coal?
Under his will, testator gave his sister, Ivonette Walter, "for and during her natural life all income and net profit from [his] estate" (Paragraph 2); testator then provided that upon Ivonette Walter's death: "I give and devise my farm in Mahoning Township, Lawrence County, Pennsylvania, on which I now reside to my niece, Lucille Ruehle and to Stewart Ruehle [Lucille Ruehle's son] share and share alike" (Paragraph 3); testator then gave pecuniary legacies to two churches (Paragraph 4); testator then bequeathed, "[s]ubject to the bequests and devises hereinbefore stated," pecuniary legacies, ranging from $500 to $2,000, to twelve nephews and nieces and a cemetery, and
then stated that ". . . Whatsoever shall remain of my estate, after the devises and bequests hereinbefore contained, I direct to be divided pro-rata among the legatees in this . . . paragraph, in proportion to the above bequests." (Paragraph 5) Lastly, testator directed payment of transfer and other taxes out of the residuary estate.
Testator's sister, Ivonette Walter, predeceased him.
The so-called "coal lease" -- executed two years after the will -- recited that testator, as lessor, "leases, lets and demises" to the Ambrosia Coal and Construction Company (Coal Company) "[a]ll of the profitable and marketable seam or vein of coal in, under and upon" a fifty-five acre tract of land in Mahoning Township, Lawrence County (testator's "farm"), "[t]ogether with all the mining rights and easements owned by [testator] and appurtenant to the coal and land herein described, including the right of ingress, egress and regress in, to and upon said land for the purpose of exploring for and mining and preparing said coal for market, to deposit waste material and refuse on the surface of the land, to drain water upon the surface by any means, to transport coal from other properties through or over this premises and to do all things necessary, usual and proper in connection with said operations" with the lessor (testator) releasing all liability for damages to buildings and objects on the surface of the land. The "lease" further provided mining could be by any method whatsoever, i.e., deep or strip mining, and granted the right of depositing all the overburden on the land itself. The coal company was to pay to testator "the sum or price of thirty (30 cents) cents per ton of two thousand pounds for all profitably minable, merchantable and marketable coal mined and removed from said premises," such payments to be made on a monthly basis.
The nub of this controversy*fn1 is whether the royalties from the "coal lease," after testator's death, are distributable and payable to the farm devisees or the residuary legatees. The Orphans' Court of Lawrence County determined the coal royalties ...