Blair v. Shannon , 349 Pa. 550 ( 1944 )

This is an appeal from a dismissal of a bill in equity. Appellants were legatees and devisees under the tenth paragraph of the last will and testament of William Shannon and as such they claimed that they were entitled to a certain interest in a "three foot vein" of coal underlying lands devised in that will and they asked for an accounting for all rents, issues and profits which may have been received by one of the appellees from the leasing, mining and sale of that coal.

Shannon, the testator, owned, inter alia, a tract of land of 230 acres. By an agreement dated February 4, 1896, he leased to the Beaver Coal and Coke Company, the "three foot vein" of coal under these acres for a term of 20 years unless terminated sooner under circumstances named in the lease. Coal in this vein was never mined under this lease, though minimum rentals as provided in the lease, were paid up to and including the year 1909. Thereafter there was complete default in the payments specified. It is admitted that the lease expired by its own terms, on February 4, 1916, which was twenty days prior to the death of William Shannon.

It is the tenth clause in Shannon's will which gives rise to this litigation. It reads as follows: "Whatever is realized out of the three foot vein of coal for which I gave a lease some years ago, I direct my executors to collect and divide the same among my eight children share and share alike".

The position taken by the appellants is that the paragraph just quoted devised in effect to the eight children of the decedent all of the coal in the three foot vein therein mentioned and that upon the mining and selling of the coal from that vein by the executors or administrators the children are entitled to share equally in the proceeds.

The defendants are (1) the widow of the testator and (2) his sons William G. Shannon, Royal G. Shannon, Haskell A. Shannon and James B. Shannon. By the 2nd and 3rd, 4th and 9th paragraphs of decedent's will these sons were devised all the real estate in fee simple owned by the testator. The "eight children" received by the 13th paragraph of the will in addition to what was bequeathed them in the 10th paragraph of the will, "whatever may remain after the payment of the above bequests" and the devises of the real estate.

The question then is: Was the coal in the three foot vein mentioned in the tenth paragraph of the will a part of the testator's real estate or a part of his personal property, at the time of his death? If it was real estate, as the court below concluded, appellants had no standing to maintain their bill in equity.

Appellees contend that "the legacy under paragraph ten being a bequest of personal property of William Shannon which disappeared before the date of his death, caused the legacy to lapse and the appellants have no rights upon which to found an action in equity". This contention the court below rightfully sustained. When Shannon leased the "three foot vein of coal" in and under the tract of land described in the agreement of February 4, 1896, his only interest in that coal became personal property. His interest in that coal as real property was a mere possibility of reverter. We said in Smith v. GlenAlden Coal Co., et al., 347 Pa. 290, 301, 302: "This is not an estate, present or future, but merely a possibility of having a future estate" in the coal leased. We said further as to "a possibility of reverter": "In the case of a base or qualified fee expiring by its own contingent limitation, it is a right to have the fee simple in possession contingent upon the determination of the fee defeasible. In the case of a fee limited upon a condition subsequent, it is a contingent right of re-entry upon condition broken": Copenhaver v. Pendleton, 155 Va. 463, 155 S.E. 802, 77 A.L.R. 324, 331.

When this lease, as to which the rentals had been in default since 1910, inclusive, expired by its own terms on February 4, 1916 (as is admitted), Shannon then repossessed this coalin fee simple. From that date to the end of Shannon's life this three-foot vein of coal was a part of his real estate. Whether it was on that date real estate or personal is so material that the decision in this case must be predicated on the fact of its being one or the other, for by his will, which spoke as of the day of his death, he divided his real estate among three of his sons, William G., Royal G., and James B. He made provision for the other three sons and the two daughters who did not receive any real estate; by bequeathing to each of them $2500 in cash. He also made other cash bequests to his sons.

The tenth paragraph of his will referred exclusively to a legacy of personal property, which was the testator's interest in the coal lease above referred to and in the royalties arising therefrom. In the tenth paragraph the testator specifically directed his executors "to collect and divide" "whatever is realized out of the three-foot vein of coal for which" he "gave a lease some years ago". This provision clearly contemplated the devise of personal property, for testators do not direct the "collection" of real estate. On the day the testator died and for 20 days previously the coal in the three-foot vein had been by operation of law real estate and nothing else and its descent must be controlled by those provisions in the will which relate to devises of real estate. What these are we have already pointed out.

The facts in the case of Hyde v. Rainey, 233 Pa. 540,82 A. 781, are wholly at variance from the facts in the instant case. In the Hyde case there was no question raised as to whether the property in dispute was real estate or personalproperty. There had been no lease of any kind ever executed on the coal, gas and oil under the farm described. The only question was whether the testatrix intended by her will to give the surface of her farm to her son and to devise the minerals under the ground on the farm to her four children. It was purely a question of interpreting the words of a will, which, as the court said, "was drawn by a minister of the gospel, who, it is apparent, was not an apt draughtsman." The court said: "This case is not free from difficulty" but came to the conclusion that the testatrix intended to give the minerals under the farm to her four children. In the instant case the lease is well drawn. Nothing could be clearer than the fact that the testator expressly gave all his real estate to the children we have above mentioned, and that by the tenth paragraph he intended to divide among his eight children the proceeds of the lease which he had executed over twenty years previously, which had produced no royalties for over six years preceding the testator's death, and which at the time of his death was absolutely non-existent. In other words, the tenth paragraph of the will applied to only personal property which was non-existent at the time of the testator's death.

When a testator devises all his real estate to certain of his children and when by the law of this Commonwealth certain property in dispute is real estate, the testamentary provisions as to real estate absolutely controls the descent of that property, and no court has any right to speculate as to whether or not the testator intended the property in dispute to descend in any other way than his unequivocal language declared that it should descend. Judicial speculation as to an individual's intentions can never prevail over the unmistakable language of that individual's legal documents. What is said in the Statutory Construction Act of 1937, P. L. 1019, about not disregarding "the words of a law" which "are clear and free of all ambiguity" "under the pretext of pursuing its spirit," applies also to the construction of wills. When the words of a will are free and clear from all ambiguity, as this will is, its words should not be disregarded under the pretext of pursuing the testator's "intentions." 28 R. C. L., sec. 174, p. 215, lays down this principle "The purpose of construction, as applied to wills, is unquestionably to arrive at the intention of the testator, that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will." (Citing numerous cases.) This court said in Groninger's Estate, 268 Pa. 184,187, 110 A. 465: ". . . our first duty is to examine the will, and if possible ascertain its meaning without reference to canons of construction." We have repeated this in many other opinions. In 69 Corpus Juris, sec. 1119, p. 59, is stated this principle: "The intention which controls in the construction of a will is that which is manifest, either expressly or by necessary implication, from the language of the will, or, as is sometimes said, the testator's intention must be ascertained from the four corners of the will." (Citing numerous cases.)

Presiding Judge READER of the court below succinctly and accurately summed up this case when in his opinion he said: "The tenth paragraph of the Shannon will does not pass title to the coal underlying the land as such, but disposes only of such proceeds of that coal as may be realized under the lease existing at the time the will was executed. The coal remaining unmined at the expiration of the lease, and at the death of William Shannon, passed, not under the tenth paragraph of his will, but under the other provisions thereof as part of the land therein devised."

We decide that the specific legacy made in the tenth paragraph of this will had been adeemed by the extinction before the testator's death of the personal property bequeathed, i. e., the rentals "realized out of the three-foot vein of coal" for which the testator "gave a lease some years ago."

The decree is affirmed at appellants' cost.