Opinion by
Mr. Justice Green,
It cannot be doubted that the testator, George B. Markle, had full power and authority to direct by his will the sale or transfer of his mining interest to his three sons, and to prescribe the terms and conditions upon which such sale or transfer should be made. Such terms and conditions would be as binding upon any court dealing with them, as upon individuals acting under them. The clause of the will which relates to this subject is as follows: “Further, if my said executors and trustees shall decide, acting under the advice of my son John Markle, to carry on the business of mining and shipping, either with others or by themselves, of coal in Luzerne county, then it is my will that my said executors shall transfer out of my interest, or that of my estate in the new business or undertaking, unto each of my sons, George B. Markle, Jr., John Markle and Alvan Markle, two sixteenths each of the whole value of the lease and improvements on said property to be mined, and such transfer to be made at such time as the new undertaking shall be commenced, which said bequests shall be considered as part payment of their share of the prill.cipal of my estate, and so charged against them at the valuation fixed.”
Several matters are to be observed in reading this important provision. First. The interests to be transferred were “two sixteenths each of the whole value of the lease, .... unto each of my sons,” naming them. This is not six sixteenths to three except in an arithmetical sense. In a legal sense, which is [646]*646all we can consider, it is two sixteenths to each one of the said three sons, individually, and not collectively. Second. The transfer is not to be made for cash. The consideration of the transfer is thus described in the will: “ Which said bequests shall be considered as part payment of their share of the principal of my estate, and so charged against them at the valuation fixed.” The testator calls them “ bequests,” and directs that they, the bequests, shall be considered as part payment of the sons’ shares of his estate. If they are bequests, and are to be considered as part payment of the sons’ shares, the sons would certainly be under no duty to pay the valuation money into the estate in cash. They are to pay it, if it can be called payment, in-shares, and not in money, and these shares are to be charged against them. Third. This provision of the will, being subsequent to the general provision for holding and distributing the residuary estate, must prevail against it if there is a conflict between them. The acquisition of the two sixteenths interests by each son being absolute, and being in substance the creation of a contract relation when consummated, and which was actually consummated in the manner prescribed by the will, cannot be defeated by applying to this transaction the earlier provision of the will for paying over only one fifteenth of the residuary share of each residuary legatee at the age of forty, and holding the remainder of each share for the children of the legatees. That provision cannot possibly be carried out literally as to that portion of the testator’s estate which is involved in the later direction to transfer absolutely two sixteenths of the mining interest to each of the sons, and in respect of the outgrowing antagonism of these two provisions of the will, the first must give way to the last. As the mining interest of the testator was only a part of his estate, and a minor part at that, there was a subject-matter in the aggregate other portions of the estate, upon which the first provision could operate, and as to that part, the first provision could be made operative.
The foregoing considerations arise upon the reading of the will, but there are other matters of quite as much importance to be considered in determining the subject of the controversy.
Fourth. - Aftér the death of the testator in August, 1888, the executors and trustees continued to carry on the business of [647]*647mining and shipping coal in connection with the other members of the firm, until in the latter part of 1889, when, as one of the leases of the firm was about to expire and the other lease would soon thereafter expire, the subject of the renewal of these leases came up for action. It was the desire of the executors and trustees to continue the firm and make new leases to that end. But, upon advising with counsel, they were finally informed that this could not be done, and then, under the provisions of a decree of the orphans’ court of Philadelphia, the executors and trustees named in the will of the testator were authorized and empowered to make a sale of the whole of the testator’s interest in the firm and business to all the children of the testator, to wit: six sixteenths to the three sons and one sixteenth to the two daughters. This decree was made upon the report of an examiner and master who was appointed upon the petition of D. Stuart Robinson, who was one of the executors and trustees, but who was not interested in the estate or in the business. The partnership interest of the deceased was about to expire, and the leases under which the whole business was conducted were also near their termination, and these leases could not be renewed except upon terms which could not be made by the executors and trustees. In this dilemma the master reported that a sale to the children “ would be very advantageous to the estate; if not sold in this way to an incoming firm there would be a great sacrifice in disposing of the assets in any other way, and the valuation which has been fixed, and at which it is to be sold, was made after a very careful and exhaustive appraisement by two experienced and indifferent men.” The amount as ultimately ascertained to be paid was $224,465.45 by the three sons and $87,410.90 by the two daughters. As to the sons the decree of the court was that “the said amounts as to the interests of the three sons to be charged against the principal of each one’s share in the estate of George B. Markle, deceased, the amount due his daughters to be paid them in money.” We have had occasion to consider the validity and efficacy of this decree in the recent case of Barber’s Appeal, 182 Pa. 378, and Hessenbruch’s Appeal, 182 Pa. 393, and we there decided it was a good and valid decree and entirely within the power of the orphans’ court to make. We think so still.
Fifth. Immediately after this decree was made, the date of [648]*648which was July 5,1890, a formal bill of sale was executed, dated July 11,1890, by which the executors and trustees granted, sold and assigned to George B. Maride “ two of the seven sixteenths .interest of George B. Maride, deceased, in the property and estate of George B. Maride & Co.,” and two of the seven sixteenths interest to John Maride and two more to Alvan Markle, and to Clora Marlde one half of one sixteenth, and to Ida Markle one half of one sixteenth interest in the same firm property and estate. The consideration of this conveyance was the whole sum of $261,876.35, as finally ascertained by the corrected decree of July 5, 1890.
Sixth. After the said conveyance the grantees entered into a new partnership agreement with the other members of the firm, made new leases of the property, and from thence hitherto carried on business upon a large scale, making very large expenditures for various purposes, especially an enormous expenditure of several hundred thousand dollars for boring and maintaining a drainage tunnel about three miles in length, and in all respects acting as owners under and by virtue of these provisions of the will of the testator and the decree of the orphans’ court above stated.
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Opinion by
Mr. Justice Green,
It cannot be doubted that the testator, George B. Markle, had full power and authority to direct by his will the sale or transfer of his mining interest to his three sons, and to prescribe the terms and conditions upon which such sale or transfer should be made. Such terms and conditions would be as binding upon any court dealing with them, as upon individuals acting under them. The clause of the will which relates to this subject is as follows: “Further, if my said executors and trustees shall decide, acting under the advice of my son John Markle, to carry on the business of mining and shipping, either with others or by themselves, of coal in Luzerne county, then it is my will that my said executors shall transfer out of my interest, or that of my estate in the new business or undertaking, unto each of my sons, George B. Markle, Jr., John Markle and Alvan Markle, two sixteenths each of the whole value of the lease and improvements on said property to be mined, and such transfer to be made at such time as the new undertaking shall be commenced, which said bequests shall be considered as part payment of their share of the prill.cipal of my estate, and so charged against them at the valuation fixed.”
Several matters are to be observed in reading this important provision. First. The interests to be transferred were “two sixteenths each of the whole value of the lease, .... unto each of my sons,” naming them. This is not six sixteenths to three except in an arithmetical sense. In a legal sense, which is [646]*646all we can consider, it is two sixteenths to each one of the said three sons, individually, and not collectively. Second. The transfer is not to be made for cash. The consideration of the transfer is thus described in the will: “ Which said bequests shall be considered as part payment of their share of the principal of my estate, and so charged against them at the valuation fixed.” The testator calls them “ bequests,” and directs that they, the bequests, shall be considered as part payment of the sons’ shares of his estate. If they are bequests, and are to be considered as part payment of the sons’ shares, the sons would certainly be under no duty to pay the valuation money into the estate in cash. They are to pay it, if it can be called payment, in-shares, and not in money, and these shares are to be charged against them. Third. This provision of the will, being subsequent to the general provision for holding and distributing the residuary estate, must prevail against it if there is a conflict between them. The acquisition of the two sixteenths interests by each son being absolute, and being in substance the creation of a contract relation when consummated, and which was actually consummated in the manner prescribed by the will, cannot be defeated by applying to this transaction the earlier provision of the will for paying over only one fifteenth of the residuary share of each residuary legatee at the age of forty, and holding the remainder of each share for the children of the legatees. That provision cannot possibly be carried out literally as to that portion of the testator’s estate which is involved in the later direction to transfer absolutely two sixteenths of the mining interest to each of the sons, and in respect of the outgrowing antagonism of these two provisions of the will, the first must give way to the last. As the mining interest of the testator was only a part of his estate, and a minor part at that, there was a subject-matter in the aggregate other portions of the estate, upon which the first provision could operate, and as to that part, the first provision could be made operative.
The foregoing considerations arise upon the reading of the will, but there are other matters of quite as much importance to be considered in determining the subject of the controversy.
Fourth. - Aftér the death of the testator in August, 1888, the executors and trustees continued to carry on the business of [647]*647mining and shipping coal in connection with the other members of the firm, until in the latter part of 1889, when, as one of the leases of the firm was about to expire and the other lease would soon thereafter expire, the subject of the renewal of these leases came up for action. It was the desire of the executors and trustees to continue the firm and make new leases to that end. But, upon advising with counsel, they were finally informed that this could not be done, and then, under the provisions of a decree of the orphans’ court of Philadelphia, the executors and trustees named in the will of the testator were authorized and empowered to make a sale of the whole of the testator’s interest in the firm and business to all the children of the testator, to wit: six sixteenths to the three sons and one sixteenth to the two daughters. This decree was made upon the report of an examiner and master who was appointed upon the petition of D. Stuart Robinson, who was one of the executors and trustees, but who was not interested in the estate or in the business. The partnership interest of the deceased was about to expire, and the leases under which the whole business was conducted were also near their termination, and these leases could not be renewed except upon terms which could not be made by the executors and trustees. In this dilemma the master reported that a sale to the children “ would be very advantageous to the estate; if not sold in this way to an incoming firm there would be a great sacrifice in disposing of the assets in any other way, and the valuation which has been fixed, and at which it is to be sold, was made after a very careful and exhaustive appraisement by two experienced and indifferent men.” The amount as ultimately ascertained to be paid was $224,465.45 by the three sons and $87,410.90 by the two daughters. As to the sons the decree of the court was that “the said amounts as to the interests of the three sons to be charged against the principal of each one’s share in the estate of George B. Markle, deceased, the amount due his daughters to be paid them in money.” We have had occasion to consider the validity and efficacy of this decree in the recent case of Barber’s Appeal, 182 Pa. 378, and Hessenbruch’s Appeal, 182 Pa. 393, and we there decided it was a good and valid decree and entirely within the power of the orphans’ court to make. We think so still.
Fifth. Immediately after this decree was made, the date of [648]*648which was July 5,1890, a formal bill of sale was executed, dated July 11,1890, by which the executors and trustees granted, sold and assigned to George B. Maride “ two of the seven sixteenths .interest of George B. Maride, deceased, in the property and estate of George B. Maride & Co.,” and two of the seven sixteenths interest to John Maride and two more to Alvan Markle, and to Clora Marlde one half of one sixteenth, and to Ida Markle one half of one sixteenth interest in the same firm property and estate. The consideration of this conveyance was the whole sum of $261,876.35, as finally ascertained by the corrected decree of July 5, 1890.
Sixth. After the said conveyance the grantees entered into a new partnership agreement with the other members of the firm, made new leases of the property, and from thence hitherto carried on business upon a large scale, making very large expenditures for various purposes, especially an enormous expenditure of several hundred thousand dollars for boring and maintaining a drainage tunnel about three miles in length, and in all respects acting as owners under and by virtue of these provisions of the will of the testator and the decree of the orphans’ court above stated.
Seventh. In addition to the foregoing the executors settled and filed a joint account in January, 1891, in which they charged themselves with the whole of the purchase money as fixed by the decree of the orphans’ court, and annexed a schedule of distribution in accordance therewith by which the amount of the shares due to each of the three sons was awarded to the trustees in trust for the several shares of the children. A memorandum was added stating the amounts to be charged against each of the three sons in the trust accounts. Upon exceptions to this account, chiefly on the question of compensation to the accountants, the auditing judge made comments to the effect that the purchase money for the sale to the children must be regarded as payable in cash, but the court in banc corrected this and held that such a ruling was contrary to the decree of 1890, and confirmed the account as filed.
Eighth. It was not until 1895 that any attempt was made to change the decree of 1890 in this respect. As this was after five years of acquiescence by all the other parties in interest, and after the purchasers had during all that time acted as own[649]*649ers of the title conveyed to them under the decree of 1890, carrying on business, making contracts, expending money on the property, all on the faith of the decree, it is difficult to see how so radical a change can now he made as was made by the present decree of the court below. We have not been referred to any decision of any court, nor to any legal or equitable principle, which would justify a court in making so grave an alteration in its own decree after vested rights bad been acquired under it. When the sale was ordered the express condition was added that the amounts of the purchase money were to be charged against the principal of each one’s share of the estate of the decedent. The sons having purchased under that decree have an undoubted right to insist upon its enforcement. Beyond all question this would be so in any ease of a purchase as between individuals, and we are unable to discover any reason why it should not be so when the terms of a sale are fixed by the decree of a court having jurisdiction of the subject-matter, as in tliis case. Particularly, and with increased force, is this so wben the purchasers under the decree have taken title, have complied with the decree, have taken possession and made large expenditures under it, and have been treated and accepted as owners in good faith by all the parties in interest for a period of five years thereafter. It must be presumed that the right to have the purchase money charged against their interests in the estate was an important inducement to them to make the purchase. It may easily be understood tbat if this inducement were not held out tliey would not have consented to make tbe purchase. Tlie amount was very large, there is no evidence on the record showing tbat it was at all possible for them to pay the purchase money in cash, and it is Arery earnestly alleged and not denied, tbat they could not, it was practically a certainty that if the testator’s interest in the firm were sold at public sale for cash it would not bring any price worth considering, and hence it was deemed by tbe master and tbe court tbat a sale sueli as was ordered and made would be most beneficial to tbe estate. How it can be possible after such a sale was ordered, in such circumstances, and accepted and carried out in good faith by the purchasers for five years, to reopen the decree and impose new, antagonistic and onerous terms of sale upon the purchasers, to which they never agreed, we cannot [650]*650understand. Neither can we understand how it was proper to hold that the sale was a joint sale of the whole six sixteenths to the three sons, and that each purchaser was liable for the payment of the whole of the purchase money, although he would only take one of the two sixteenths interests. The bill of sale conveys a two sixteenths interest to each one of the sons, and this was in accord with the provision of the will. No title was or could be acquired by either one of the purchasers to anything more than his own defined interest, each interest was owned by each purchaser so that he could incumber it, or convey it away without the knowledge or consent of the others, and in point of fact this was done as to one of the interests, and therefore there can be no propriety in charging each one with liability for the whole. We are of opinion that it was erroneous to reopen the decree of 1890, and make the decrees of 1896, now appealed from, and we therefore sustain the several assignments of error.
The decrees of March 28 and May 29, 1896, are reversed, the petition for review and its supplementary petition are dismissed and set aside and the record is remitted at the cost of the appellee.