Estate of Lazarus

23 A. 372, 145 Pa. 1, 1892 Pa. LEXIS 752

• Court: Pennsylvania Orphans' Court, Luzerne County
• Decided: January 4, 1892
• Docket: No. 85
• Status: Published

Opinion

Opinion,

Me. Justice Steeeett :

The conveyance made by Thomas Lazarus is not distinguishable either in form or in purpose from that which was the subject of construction in Hope’s App., 33 Pittsb. L. J. 320; and which was held to constitute a sale of the coal. They are both in form leases for a term of ninety-nine years ; both give the grantees an absolute and exclusive right to take out all the available coal in the tracts described; and both exact the payment of a stipulated sum, without regard to whether coal shall be taken out or not within that period. It is obviously immaterial that in Hope’s Appeal the consideration is payable in solido, while here the consideration, beyond the stipulated sum payable in any event, is regulated according to the rate per ton for the coal which may be mined ; for this is simply a difference in the mode of payment of such consideration. Nor is it material that no coal has been nor may be mined within the term specified. The grantee has the absolute and exclusive right, under the conveyance, to mine all the available coal contained in the tract described, and it rests with him alone whether or not there shall be a reversion. If he should exercise his right within the term, the coal will by severance have become absolutely his, and his grantor will have received its equivalent in cash as in the case of an ordinary sale; if not, his inaction will simply amount to a voluntary forfeiture of such rights. As was said in Hope’s App., “ The grant of a right to mine coal in the lands of the lessor and remove it therefrom, although the instrument may be called a lease, is a grant of an interest in the land itself, and not a mere license to take the coal.” The transaction here constituted a sale of the coal conditioned upon its being removed within the period specified; and the court below was therefore in error. See Kingsley v. Coal & I. Co., 144 Pa. 613.

So, the court was in error in rejecting the claim on behalf of the estate of Rachel Lazarus, deceased. It is conceded that the Nanticoke house and lot was her separate estate when conveyed to her husband; and the auditor has found upon sufficient evidence that the consideration of this conveyance was in fact $2,975.93, and remains due and unpaid.

Decree reversed; and it is now adjudged and decreed that the fund be distributed in accordance with the schedule' of distribution submitted by the auditor, and that the costs of this appeal be paid by the appellees.