Kariher's Petition

• Decision Date: 23 November 1925
• Docket Number: 146
• Citation: 131 A. 265,284 Pa. 455
• Parties: Kariher's Petition (No. 1)
• Court: Pennsylvania Supreme Court

131 A. 265

284 Pa. 455

Kariher's Petition (No. 1)

No. 146

Supreme Court of Pennsylvania

November 23, 1925

Argued October 9, 1925

Appeal, No. 146, March T., 1925, by G.W. Johnson Limestone Co., from order of C.P. Lawrence Co., June T., 1924, No. 35 dismissing exceptions to findings and order in proceedings under the Uniform Declaratory Judgments Act In re Petition of Orie M. Kariher for decree declaring rights under will of Terhan H. Kariher, deceased. Reversed.

Petition under the Uniform Declaratory Judgments Act. Before EMERY P.J.

The opinion of the Supreme Court states the facts.

Decree declaring rights under will of Terhan H. Kariher, deceased. G.W. Johnson Limestone Co. appealed.

Error assigned was, inter alia, decree, quoting bill of exceptions.

The assignments of error are sustained, and the judgment is reversed with directions that the court below enter judgment in conformity with the views here expressed. The costs of this appeal are divided between Orie M. Kariher and the G.W. Johnson Limestone Company.

W. W. Braham, of Aiken & Braham, for appellant. -- The contingency of the son's remarrying and a second wife's being alive at the time of the son's death is referable to the death of the son and not to the death of the testator: Field's Est., 266 Pa. 474; Jessup v. Smuck, 16 Pa. 327; Mickley's App., 92 Pa. 514; Jackson's Est., 179 Pa. 77; Engles Est., 180 Pa. 218; Johnson v. Morton, 10 Pa. 245; Kirkpatrick's Est., 280 Pa. 306; Mebus's Est., 273 Pa. 505; Detter's Est., 280 Pa. 135; Woelpper's App., 126 Pa. 562; Mulliken v. Earnshaw, 209 Pa. 226.

No extrinsic evidence is needed to construe the will and the fact that Orie is still living with his first wife does not affect any of the provisions of the will: Van Leer v. Van Leer, 221 Pa. 195.

Even the construction adopted by the court below, referring the contingency of the son's remarrying to the death of the testator, would not operate to destroy all subsequent estates created by the will: Fletcher v. Hoblitzel, 209 Pa. 337; Portuondo's Est., 185 Pa. 472; Woodburn's Est., 151 Pa. 586; Hamlin v. Thomas, 126 Pa. 20.

The terms of Terhan H. Kariher's will were intended to convey and are ample to convey all of the testator's estate: Eichelberger's Est., 274 Pa. 576; Lippincott's Est., 276 Pa. 283; Buch's Est., 278 Pa. 185; Reisher's Est., 261 Pa. 223; Jacob's Est., 81 Pa.Super. 427; Schaper v. Coal Co., 266 Pa. 154; Eckert v. Trust Co., 212 Pa. 372; Ferry's App., 102 Pa. 207; Miller's App., 113 Pa. 459; Dull's Est., 137 Pa. 112.

Testator did not die intestate as to any part of his estate. He gave a life interest in his residuary estate to his son Orie; one-half of the residue in fee to the children of Orie, subject to the life estate; a life estate in the other half to a possible second wife of Orie; a remainder in fee to the second half to the children of Orie, subject to the two life estates; and an executory devise to the children of Dora Scott. The remainders to the children of Orie Kariher are vested remainders: Walker's Est., 277 Pa. 444; Groninger's Est., 268 Pa 184; Pearson's Est., 280 Pa. 224; Jackson's Est., 179 Pa. 77; Eichelberger's Est., 274 Pa. 576.

The provisions in favor of the children of Dora Scott creates an executory devise or alternative limitation: Stoner v. Wunderlich, 198 Pa. 158; Moss Est., 80 Pa.Super. 323; Stump v. Findlay, 2 Rawle 168; Buzby's App., 61 Pa. 111.

After the appointment of trustees to represent contingent interests, all persons in interest are represented in the proceeding: Snyder's Est., 274 Pa. 574; Moorehead v. Wolff, 123 Pa. 365.

The orphans' court has jurisdiction: Cardon's Est., 278 Pa. 153; Souder's App., 57 Pa. 498; Winton's App., 97 Pa. 385; Schollenberger's App., 21 Pa. 337; McGowen v. Remington, 12 Pa. 63; Carney v. Trust Co., 252 Pa. 381.

C. H. Akens, for appellee. -- A construction which disinherits an heir is to be avoided where possible: Edelman's Est., 276 Pa. 503-508; List's Est., 283 Pa. 255.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

UNDER THE UNIFORM DECLARATORY JUDGMENTS ACT.

This is a proceeding in the Common Pleas of Lawrence County under the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840. Three persons, claiming to be absolute owners of mineral property in a certain farm, negotiated a lease, or sale in place, of the limestone underlying the surface. After terms were agreed on, the proposed lessee questioned the title of one of the lessors, claiming the latter had but a life estate; whereupon, the lessor petitioned the court below for a declaration as to his property rights. All persons having a possible interest were joined as respondents, including certain alleged remaindermen and a trustee (Snyder's Est., 274 Pa. 574) appointed to represent other possible contingent remaindermen and persons who might in the future possess an alternative interest. The answers of three of the defendants, including the present appellant, denied the petitioner's absolute estate. The court below concluded that the petitioner possessed a fee absolute in an undivided one-third of the minerals in question, with the right to execute the proposed lease; whereupon the G.W. Johnson Limestone Company, the proposed lessee, filed this appeal.

In addition to attacking the legal correctness of the conclusion just stated, appellant raises the question of the constitutionality of the Declaratory Judgments Act; and, if this latter point is decided against it, then appellant questions the right of the court below to assume jurisdiction under the act, claiming that the orphans' court, and not the court of common pleas, was the proper tribunal for that purpose.

After briefly stating the salient facts of the case, we shall dispose of the above questions in their inverse order.

Abigail Kariher owned a farm of fifty acres in Lawrence County, underlaid with limestone. On August 23, 1902, she leased the limestone to appellant company for a term of twenty years from January 1, 1903. No limestone was quarried or removed during the term, but the minimum royalty stipulated for in the lease was paid annually. The lease contained an "option to [the lessee] to take and receive a new lease of said premises." Abigail Kariher died, a widow, in 1904, intestate, and leaving, as her only descendants and sole heirs at law, three sons, John C. F. Kariher, Hiram Kariher and Terhan H. Kariher. In 1909, Hiram and Terhan conveyed their respective undivided interests in the farm to their brother John, but each reserved his interest in the limestone, oil and gas underlying the premises. In 1912, the three sons leased twenty-five acres of the farm for oil and gas purposes. Hiram died in 1922, testate, and his undivided one-third interest in the limestone passed to Bernard F. Kariher, his only child. John still lives and retains his one-third interest in the limestone. Terhan died August 20, 1920, leaving to survive him an only child, Orie M. Kariher, the appellee. The lease now in controversy was negotiated by Orie M. Kariher, claiming to be the owner in fee of an undivided one-third of the mineral rights in question, and by his uncle John C. Kariher, claiming another third, and his cousin Bernard F. Kariher, claiming the remaining third. No question is raised as to the absolute ownership of the two last mentioned persons, but that of Orie M. Kariher is questioned, as before stated.

The controlling point submitted for decision by the court below was, whether the proposed lease by the three persons above named "would pass and convey to such lessee full legal right and authority to mine and remove said limestone and to exercise all other rights and privileges on said premises granted to said lessee by the terms of such lease"; and, to pass upon this question, it, of course, became necessary for the court below to determine the subordinate question, also submitted, as to the quality and quantity of the interest of Orie M. Kariher, one of the three lessors.

JURISDICTION OF THE COURT BELOW.

In considering whether the court of common pleas, rather than the orphans' court, had jurisdiction to determine the above questions, it must be kept in mind that the proposed lease, while negotiated pursuant to the option contained in the original lease, was not to be executed by representatives of the estate of the original lessor, Abigail Kariher, deceased, but by three persons claiming to be present owners of the property.

The Uniform Declaratory Judgments Act provides by section 1 that "courts of record, within their respective jurisdictions, shall have power to declare rights," etc., and by section 2 that "Any person interested under a . . . written contract or other writings constituting a contract or whose rights, status or other legal relations are affected by a . . . contract, . . . may have determined [by the court] any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder."

Since there was no effort in this proceeding to enforce against the estate of the deceased lessor specific performance of the option clause in the original lease, -- the proceedings being instituted as before stated, for the purpose of ascertaining and declaring the legal right of one of the parties to the new lease, to contract, so that appellant company, as well as the other parties to the contract agreed on, would know whether it was bound to, or could with legal safety, accept the lease in question and obtain thereunder the rights bargained for, -- we are of opinion that the court of common pleas was the proper tribunal to adjudicate the points involved, rather...