Estate of Lazarus

• Decision Date: 04 January 1892
• Docket Number: 85
• Citation: 145 Pa. 1,23 A. 372
• Parties: ESTATE OF THOMAS LAZARUS, DECEASED
• Court: Pennsylvania Supreme Court

23 A. 372

145 Pa. 1

ESTATE OF THOMAS LAZARUS, DECEASED

No. 85

Supreme Court of Pennsylvania

January 4, 1892

Argued April 14, 1891

APPEAL BY G. LAZARUS ET AL., EXRS. OF R. LAZARUS, DECEASED, FROM THE ORPHANS' COURT OF LUZERNE COUNTY.

No. 85 January Term 1891, Sup. Ct.; court below, number and term not shown.

On November 2, 1889, George Lazarus and Chester B. Lazarus administrators of the estate of Thomas Lazarus, deceased filed their first and partial account, in which they charged themselves with "purchase moneys received" under a certain so-called lease of coal lands dated April 13, 1871 hereinafter mentioned, the said amounts being as follows:

Amount received January 22, 1889,

$ 1,645

Amount received April 12, 1889,

1,645

Amount received July 15, 1889,

1,645

Amount received October 14, 1889,

1,645

$ 6,580

To the said account certain of the heirs at law of the decedent filed exceptions, alleging, inter alia, that the accountants should not have embraced either of said four items in their account, because, being rents accruing from said coal-lease, the items were not collectible by the accountants, and they improperly charged themselves with them. Thereupon Mr. Joseph D. Coons was appointed auditor, "to report on exceptions and make distribution after taking testimony."

On May 12, 1890, the auditor filed a report finding in substance the following facts:

In 1871, Thomas Lazarus, the decedent, was the owner of 105 acres and 121.8 perches of land in Hanover township, underlaid with anthracite coal. Adjoining this tract were 20 acres 114 perches owned by John Lazarus; 34 acres 107 perches owned by A. B. Blodget and Mary, his wife; and 63 acres 139 perches owned by Richard Gunton; all underlaid with coal. On April 13, 1871, said owners, including the decedent, as parties of the first part entered into an "indenture of lease" with William Downs and John Dennis, as parties of the second part, the portions thereof, treated as material in the court below, providing:

"That the said parties of the first part, for and in consideration of the yearly rents, covenants and agreements hereinafter mentioned and reserved on the part and behalf of the said parties of the second part, their executors, administrators and assigns, to be paid, kept and performed, have demised and leased, and by these presents do demise and lease unto the said parties of the second part, their executors, administrators and assigns, all the anthracite coal on and under the following described contiguous tracts of land, situate in the said township of Hanover, with the privilege of mining and removing the same, and bounded as follows: . . . . Which said land is held in fee by the lessors above named, in severalty, in the following proportions, viz.: . . . . The quantity and boundaries of the respective land of each one is laid down upon the said accompanying draft, and hereto attached and made a part of this lease as aforesaid.

"To have and to hold the said anthracite coal upon and under the said described tract of land of two hundred twenty-five acres and two perches, with the right and privilege of mining and removing the same, unto the said parties of the second part, their executors, administrators and assigns, from the first day of April instant, for and during the term of ninety-nine years; and fully to be complete at and ended on the first day of April in the year nineteen hundred and seventy (1970). . . .

"1. The said parties of the second part shall pay the said parties of the first part, twenty-five cents for every ton of 2240 pounds of merchantable coal mined upon the leased premises, that will pass over a screen of five eighths of an inch mesh; the rent to be paid quarterly in each year, during the term, or so long as there may be coal available to mine, on the first days of July, October, January and April, for all coal mined in each year. But, during the second year of this lease, the sum to be paid shall not be less than sixteen hundred dollars; during the third year, not less than five thousand seven hundred dollars; during the fourth year, not less than eleven thousand three hundred dollars; and during the fifth year, and every subsequent year of the term, not less than fourteen thousand dollars; these annual sums to be paid whether coal shall have been mined in sufficient quantities, at the rate of twenty-five cents per ton, to make them up or not; with the proviso, however, that coal is to be found upon the premises, and can be reached with proper energy and perseverance. But, should the said parties of the second part, in any one year pay for more coal than they shall have mined, they make up the deficiency in any subsequent year of the term of this lease; . . . .

"2. The mining shall be conducted in a judicious and skilful manner, and all the merchantable coal in any seam they may operate, shall be removed as they advance, leaving sufficient supports for the roof, and conducting the business with care and upon the most improved principles of mining."

"4. The parties of the second part, shall have the privilege to make air shafts upon the surface at such places as may be most proper; but not in any case to interfere with any tenement or buildings, using as little space as may be practicable, and paying the owner a fair compensation for such surface; and on failure to fix that sum with such owner it shall be submitted to an umpire to determine."

"6. The said parties of the second part shall pay during the continuance of this lease, all taxes, imposts or excises laid upon the coal mined, or not mined, either by state or national laws, or upon the product of the mines, or in any manner whatever connected with mining operations."

"8. The parties of the second part may assign this lease, or sub-let the same; but no further assignment or sub-letting shall be made by their assignees or sub-tenants, without the written consent of the parties of the first part having been first obtained.

"9. The parties of the second part shall be liable for the payment of rent as hereinbefore named until all the available merchantable coal shall be mined upon the premises, and when this shall have been done this lease shall be ended though the time may be less than that specified in the term named.

"10. Should the said parties of the second part fail at any time to meet the regular quarterly payments at the time the same shall become due and payable, or at the end of sixty days thereafter, all their rights and privileges under this lease shall cease and determine, and the premises shall be surrendered up to the lessors. But such forfeiture shall be a matter within the discretion of the lessors, and the said lessors may, in either case, enforce collection of rent in arrear, by the ordinary process of levy and sale by landlord's warrant. Should the said parties of the first part, for failure to pay rent...