author: Mr. Justice Elkin, Mr. Justice Mestrezat,

text:
    Berkey v. Berwind-White Coal Mining Company, Appellants.

      Mines and mining — Surface support — Deed—Equity—Jurisdiction— Adequate remedy at law.

    Where a grantor has sold and conveyed all the coal underlying his land with the right to mine and remove the same without reserving surface support, and also without waiving such right of support as he may have at law, he has no standing to maintain a bill in equity for an injunction to restrain his grantee from mining and removing the coal in such a manner as may threaten to cause a subsidence or breaking of the surface, where it appears that the anticipated injury is not of an irreparable character, that no buildings or other permanent improvements would be endangered, that no overlaying strata of coal would be seriously and permanently disturbed or displaced, and that the coal in question was overlaid by a hilly surface of such thickness that subsidence was not probable. In such a case the surface owner has an adequate remedy at law in damages.
    To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. If the injury be doubtful, eventual or contingent, equity will not interfere by injunction. A chancellor will consider whether he would not do greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court -and jury.
    Mr. Justice Mestrezat, dissents.
    Argued Oct. 19, 1907.
    Appeal, No. 176, Oct. T., 1907, by defendants, from decree of C. P. Somerset Oo., Equity Docket, 1906, No. 4, on bill in equity in case of Henry Berkey v. The Berwind-White Coal Mining Company and The Wilmore Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.

      Koosek, P. J., filed an opinion in which he found the facts to be as follows :
    1. On the hearing, November 15, 1906, on motion of its solicitors filed, the Wilmore Coal Company was permitted to intervene as defendant.
    2. Prior to November 30, 1892 (and from 1884), the plaintiff was the owner in fee of the entirety of a certain farm in Paint township, Somerset county, Pennsylvania, adjoining lands of Jacob A. Weaver, Peter Hoffman, David Shaffer’s heirs, John Jones, Josiah Blough and Alfred Gaghagen, containing 119 acres and 133 perches, and on November 30, 1892, he conveyed to Robert H. Sayre all the coal and minerals in and underlying the said farm, excepting the limestone, describing the farm by metes and bounds, and with the following rights and privileges: “ Together with the free and uninterrupted right of way into and through said lands, and to build, keep and maintain roads and ways in and through said mines forever for the transportation of said coal, etc., and of coal and other things necessary for mining purposes from and to other lands, with the right to mine and carry away all of said coal and minerals, and with all the mining rights and privileges necessary or convenient to such mining and removal of same, or by reason of the manufacture of the said coal into coke or other products at such places as may be selected by said second party, his heirs or assigns. Said second party agrees to pay for any such surface used for mining, etc., the general price for such land.”
    On June 12, 1895, Robert H. Sayre et al. conveyed said coal and minerals to the Wilmore Coal Company, with the mining rights and privileges above stated.
    The plaintiff is yet the owner of the surface soil and the limestone he reserved.
    3. The Benvind-White Coal Mining Company, a. corporation organized under the laws. of Pennsylvania, is the lessee under the Wilmore Coal Company, of the said coal. It commenced the mining and removal of the coal in said “ Bed B ” or “ Miller seam ” under plaintiff’s farm in the spring of 1902, and has been mining practically continually therein since. It has'already mined, and before the granting of the preliminary injunction in this case had mined all the coal, and removed the pillars and supports from somewhat more than one-half of said farm, and under the remainder of the farm (and also before the preliminary injunction was granted) headings had been driven and rooms cut off, and the coal removed therefrom, but the pillars and ribs were left standing and have not yet been removed.
    The mining operations under this farm have been conducted by drifts or slopes through the same seam on adjoining lands, and from openings or mine mouths at a remote distance from plaintiff’s farm.
    4. The thickness of the covering over the “ B ” seam on this Berkey farm is variable, ranging from ninety-seven feet, the thinnest cover in the northeast, along the Gaghagen line, to 202 feet at or near the dwelling house and to 279 feet in the south part (the average being about 150 feet). The “ Limestone ” or “ D ” seam lies from 130 to 135 feet above the “ B,” and the “ D ” seam “ 0 prime ” and “ C ” seams overlie the “ B ” over the greater part of the farm. Ordinarily bed “D” overlies immediately a bed of limestone of about two feet in thickness, but I am unable to find from the evidence that it so lies on this farm or in this neighborhood. The plaintiff prospected for this limestone, but failed to find it, and says he knows of none opened on farms near this one. Plaintiff’s witness Fetterman says limestone sometimes underlies “ B ” seam and sometimes does not. The seams above “ B ” are owned by the Wilmore Coal Company under same conveyance as “ B ” from plaintiff, and interference with the covering over “ B ” causing- cracks and depressions in the surface, would interfere with the coal strata above “ B,” with like effect as with the stratum of limestone above, if there be limestone there.
    5. The rooms of the headings are mined to a width averaging from thirty to thirty-five feet, and about 400 feet in length, and the pillars left standing are thirty-three feet .thick. The headings are sixteen feet wide, with a parallel back-heading or air-course fourteen to fifteen feet wide, with a pillar or wall of coal between them; through this pillar or wall between the heading and the air-course, crosscuts are made at intervals, and these closed with brattice boards as the mining progresses.

      6. There were on this farm ten or eleven springs of water of varying strength, but all constant, three or four of them strong, the one at or near the dwelling house being one of the strong springs, and they all ceased flowing in the summer and fall of 1904 and as early-as September 15. Since then none of them has been constant. During wet seasons, for several months in each year, they supply sufficient water for the use of the farm, but are useless during the rest of the year.
    The loss of the springs has depreciated the value of this farm\ greatly. The loss of water from the springs constitutes the j principal item of damages suffered by the plaintiff by reason; of the mining operations of the defendant. Any injury to the ' springs by mining operations of defendant was done before the preliminary injunction in this case was granted.
    7. At eight or nine different places upon the eastern side of the farm from under which the coal was first mined and the pillars drawn the surface has subsided, leaving depressions of varying sizes of from about 500 feet by 300 feet to about 157 feet by 97 feet, and varying in depth at about their middle (to which they slope gradually) from one to two and a half feet. There were also several cracks at the surface, about the edges of some of these depressions, from 100 to 300 feet long, and in their widest place, about four inches. These depressions and cracks were first observed in the spring or summer of 1905, and two of the smaller depressions have appeared since the preliminary injunction was granted. These depressions have substantially depreciated the value of the farm — perhaps to the amount of several thousand dollars — but this depreciation is much less than (not one-fourth as much as) that caused by loss of water in the springs.
    8. In the sale and conveyance of the coal and minerals the plaintiff did not release damages that might result to the surface from the mining and removal of the coal and minerals, and neither the owner nor the lessee of the same claims there was such release.
    9. Of the lands surrounding plaintiff’s farm those to the south and southwest (Hoffman and part of Shaffer) lie higher, and the others lower than plaintiff’s farm. The mining had been done under these adjacent farms, and under the plaintiff’s farm before the springs failed — the mining under plaintiff’s farm being as heretofore stated, the removal of pillars from under the eastern half (approximately) and the cutting of headings and rooms under the remainder.
    10. The plaintiff’s farm, not including the coal and minerals sold, was worth about $100 per acre, before the springs were affected as found, and before the appearance of the depressions and cracks as found heretofore.
    11. No mining has been done by defendant under the house or the barn of plaintiff. Rooms have been driven to block of coal left under them, but how closely I cannot say from the evidence, but from the map, perhaps twenty-five feet from opposite corners of the barn, and perhaps thirty feet from the one corner of the house. Since the mining operations on the east side of the farm, a narrow vertical crack has appeared in the wall of the house.
    12. If the defendant company draw the pillars now standing under the western half of the farm, as before the date of the issuing of the injunction they did under the eastern half, it will not affect the springs further, but will cause other depressions and cracks upon plaintiff’s farm which will be permanent and irreparable damage. The cover over the western half being, in the main, heavier than that over the eastern half, the depressions would be less, and the damage less than that sustained on the eastern half.
    These depressions occur not all at one time, but at intervals, and may continue to appear over a long period.
    13. The Wilmore Goal Company, one of the defendants, is to receive from the Berwind-White Coal Mining Company, the other defendant, a royalty of ten cents per ton, for all the coal mined on said premises, and the leaving of said ribs or pillars of coal which yet remain in place- on said premises would result in a yield of less royalty to the said Wilmore Coal Company by at least $18,000 than if these ribs and pillars were mined and removed; and the net profits to the Berwind-White Coal Mining Company, by reason of its extensive improvements, machinery, appliances and equipment for mining coal, would be at least $18,000 more if it should mine and carry away the ribs and pillars yet standing in said mine, under plaintiff’s farm, as was done under the eastern part of said farm, leaving no support for the surface, than its profits will be if the ribs and pillars yet standing shall remain in place.
    Each of these sums is several times as large as any amount of damage which the plaintiff claims has resulted, or would or might result, from the removal of the said pillars.
    14. Most of the springs on plaintiff’s farm were located near the lines of the farm, but at least three were well within the body of the farm, and one of the strongest and most valuable was near plaintiff’s dwelling house. As early as September 15, 1904, all the springs on the farm had failed as constant, and plaintiff has had to haul water much of the time since.
    15. The thickness of the “ B ” seam is from three feet ten inches to four feet. The evidence establishes that if all the ribs and pillars of coal yet remaining on the premises were removed, the injury to the surface and to the seams of coal, and the seam of limestone if there be such seam, above the “ B ” or “ Miller ” seam by any subsidence caused thereby would be more regular and widespread, and the injury to the surface less than if the ribs and pillars were left standing, and many subsidences should occur between the standing ribs. Subsidences, whether at places where ribs have been drawn, or where they are permitted to remain, are an injury and damage to the surface. The thinner the seam mined and the heavier the cover, the less is the disturbance from subsidence, and the less the depression in the surface when they occur. From the cover over the “ B ” seam in the part of plaintiff’s farm on which the pillars yet stand, I am unable to find that material depressions must appear if the ribs are allowed to stand, or if any, to even conjecture their probable number or proportion.
    16. On April 3, 1906, the plaintiff filed a bill in equity to No. 4, Equity Docket, 1906, and obtained from this court a preliminary injunction, restraining the defendant from removing the pillars of coal which had been left standing on said mining operations, the plaintiff alleging in said bill that by the removal of said pillars the surface would be broken and irreparable damage done to said farm, and the springs of water destroyed and other damages done, and that the plaintiff was without adequate remedy at law. This preliminary injunction was obtained without notice to the defendants.

      17. On April 27, 1906, the defendants filed an answer, and on November 14 and 15, 1906, the court heard testimony on the motion to dissolve the preliminary injunction. At the time of the hearing leave was granted to the Wilmore Coal Company to intervene as defendant; and it was agreed by the solicitors for all the parties that the hearing then had should be final and the case disposed of as upon final hearing.
    The court entered the following decree :
    And now, January 14, 1907, this cause came onto be heard at this time, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows, viz.: That the defendants, their agents, employees, servants and other persons do henceforth perpetually desist from mining and removing, causing to be or permitting to be mined and removed the coal yet remaining in place as pillars under so much of the plaintiff’s farm described in the bill filed in this case, as such pillars yet remain as aforesaid, in any manner that will cause subsidence or breaking of the surface of plaintiff’s land, or that will result in damages present or future to the surface ; conditioned, however, that the coal in said pillars may be mined and removed if immediately upon the removal of any pillars or parts of pillars, the removal of which will endanger subsidence of or injury to the surface, sufficient support of stone or other permanent material be substituted to furnish complete support to the surface against subsidence and injury ; that so much of the preliminary injunction as relates to the displacement of a limestone stratum, and as required defendants to provide permanent support to the surface where they had endangered or rendered insecure the surface by mining operations at the time the preliminary injunction was granted is dissolved. Defendants to }3ay the costs of this proceeding.

      Error assigned was in granting a permanent injunction.
    IF. II. Ruppel and David L. Erebs, with them C. F. Uhl, Jr., for appellants.
    The case must be determined upon the facts as they existed at the time of the 'filing of the bill: New Boston Coal & Mining Co. v. Water Co., 54 Pa. 164 ; Coal Co.’s App., 54 Pa. 183 ; McDonough v. Bullock, 2 Pearson, 191.

      Mere anticipation of damage or injury in the future is not sufficient to warrant the court in granting an injunction ; the' plaintiff must make out a case which clearly established danger and not mere apprehension of damages : Shaw v. Transit Co., 4 Pa. C. C. Rep. 363 ; Lehigh, etc., Coal Company v. Canal Co., 11 Pa. C. C. Rep. 185.
    It is a well-settled principle that where injury can be redressed in an action at law equity will not interfere : Grey v. Railroad Co., 1 Grant, 412 ; Mulvany v. Kennedy, 26 Pa. 44 ; New Boston Coal, etc., Co. v. Water Co., 54 Pa. 164 ; Richards’s Appeal, 57 Pa. 105 ; Rhodes v. Dunbar, 57 Pa. 274 ; Ramsey’s Appeal, 88 Pa. 60 ; Berks, etc., Turnpike Road v. Lebanon Steam Co., 5 Pa. C. C. Rep. 354 ; Gummere v. Railroad Co., 12 Pa. C. C. Rep. 106 ; Georges Creek Coal Co. v. Detmold, 1 Md. Ch. Dec. 371 ; Spotts v. Raiding, 2 Pearson, 295.
    No rule has become more thoroughly imbedded in our equity practice, and probably none is laden with more beneficial effects than that which causes the court to withhold an injunction where the granting of it would be of greater damage to the defendant then such refusal would be to the plaintiff: Richards’s Appeal, 57 Pa. 105 ; Rhodes v. Dunbar, 57 Pa. 274 ; Huckenstine’s Appeal, 70 Pa. 102 ; Mirkil v. Morgan, 134 Pa. 144 ; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 287 ; Wahl v. Cemetery Association, 197 Pa. 197 ; McClelland v. Rush, 11 Pa. C. C. Rep. 188 ; High spire Borough v. Transmission Co., 32 Pa. C. C. Rep. 91 ; Miles v. Penna. Coal Co., 214 Pa. 544 ; Cambria & Clearfield Railway Co. et al. v. Horn, 33 Pa. C. C. Rep. 545.
    It was error to grant the injunction : Coleman v. Chadwick, 80 Pa. 81 ; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286 ; Pringle v. Vesta Coal Co., 172 Pa. 438 ; Huckenstine’s App., 70 Pa. 102 ; Scranton v. Phillips, 94 Pa. 15 ; Walters v. McElroy, 151 Pa. 549.

      Valentine Hay, with him J. E. Gasteiger, Alexander Ei/ng and A. L. G. Hay, for appellee.
    The surface owner is entitled to absolute support from the mine owner, unless that right has been released, and this is so, even though the mine owner must leave every pound of coal in place to support the surface : Jones v. Wagner, 66 Pa. 429 ; Coleman v. Chadwick, 80 Pa. 81 ; Horner v. Watson, 79 Pa. 242 ; Carlin v. Chapel, 101 Pa. 348 ; Williams v. Hay, 120 Pa. 485 ; Pringle v. Vesta Coal Co., 172 Pa; 438 ; Robertson v. Youghiogheny River Coal Co., 172 Pa. 566 ; Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343 ; Noonan v. Pardee, 200 Pa. 474 ; Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319 ; Weaver v. Berwind-White Coal Company, 216 Pa. 195 ; Miles v. Pennsylvania Coal Co., 217 Pa. 449.
    The rule of comparative value is not applicable to the case in hand, under the best authorities : Evans v. Fertilizing Co., 160 Pa. 209 ; Higgins v. Water Co., 36 N. J. Eq. 538 ; Sheaffer’s App., 100 Pa. 379 ; Sullivan v. Steel Co., 208 Pa. 540 ; Waters v. McElroy, 151 Pa. 549 ; Bigler v. Penna. Canal Co., 177 Pa. 28; Penna. Lead Co.’s App., 96 Pa. 116 ; Price v. Grantz, 118 Pa. 402.
    Tfie court has never held words to amount to a waiver of surface support unless they are couched in such apt, plain and unmistakable language, that their import could not be questioned : Chartiers Block Coal Co. v. Mellon, 162 Pa. 286.

      W. K. Rwppel and David L. Krebs, with them G. F. Uhl, J., for appellants, in reply.
    There is no irreparable damage : Com. v. P. & C. R. R. Co., 24 Pa. 159, 160 ; Johnson v. Kier, 3 Pittsb. Rep., 20A-210 ; Phila. Ball Club v. Lajoie, 202 Pa. 210 ; Wilson v. City of Mineral Point, 39 Wis. 160, 164 ; Hodge v. Giese, 43 N. J. Eq. 342 ; Missouri, etc., Railway Co. v. Texas, etc., Railway Co., 10 Fed. Repr. 497, 503.
    January 13, 1908 :
   Opinion by

Mr. Justice Elkin,

The bill filed in this case asks for an injunction to restrain the appellants from mining and removing the coal underlying a certain tract of land therein described in such a manner as will do damage, present or future, to the surface by causing a subsidence or breaking thereof. The learned court below, sitting as a chancellor, on the filing of the bill, granted a preliminary injunction, which, after hearing, was made permanent. The real question involved in this case is one of remedy rather than of legal right. The controversy grows out of the assertion of the right upon the part of the grantor, who had sold and conveyed all the coal underiying the land in question, to restrain his grantee and its lessee, the appellant companies, from mining and removing the coal in such a manner as to do injury to the surface. The right to surface support was not expressly waived in the deed of conveyance, and, therefore, the owner of the surface is entitled to the benefit of the rule which imposes upon the underlying or mineral estate the servitude of sufficient support to the upper or superincumbent strata: Weaver v. Coal Company, 216 Pa. 195. This is the settled rule of law in Pennsylvania, and nothing said or decided in the present case is intended to weaken or modify it. Each party to this proceeding stands upon certain legal rights and the principal inquiry must be whether the appellee, under the facts produced at the hearing in the court below, is in a position to ask a court of equity to interfere by injunction. No general and unbending rule can be laid down in such cases. Much depends upon the facts of each particular case. Of course, if the injury complained of is irreparable so that it cannot be adequately compensated in damages, or if the act intended to be committed is in the nature of a trespass, or tort,' or if the wrong sought to be redressed amounts to a nuisance, which by reason of the persistency with which it is repeated, threatens to become permanent, courts of equity will interfere by injunction to prevent such wrongs: Commonwealth v. Railroad Company, 24 Pa. 159 ; Stewart’s Appeal, 56 Pa. 413; Allison’s Appeal, 77 Pa. 221; Bitting’s Appeal, 105 Pa. 517; Walters v. McElroy, 151 Pa. 549. The present case does not come within the reason or spirit of the rule announced in these cases. Under the facts of the case at bar it cannot be successfully contended that the injury is irreparable, at least in the sense that it cannot be adequately compensated in damages and certainly the mining and removing of coal by the party who owns it and has the right to remove it, and whose operations are conducted by the most approved methods known in mining operations, cannot be said to be a trespass, or tort, or nuisance, within the meaning of the rule of the above cited cases in which equitable relief has been granted. In the above cases the respondents were trespassers without any right of property in the thing injured, while in the present case appellants are the owners or lessees of the coal with the right to remove it. It may be that under the rule of our Pennsylvania cases the doctrine of the balancing of equities or of comparative values, should have no controlling weight in the determination of the rights of the parties to this proceeding. It must be conceded that this doctrine has not been favored in our state, although it is recognized in other jurisdictions and supported by text-writers very generally. Our courts look more to the exact legal rights of the parties than to the equities that may exist between them, even when these questions are raised in a proceeding in equity. We do not understand, however, that it has ever been held that the doctrine has no application at all, but rather that such considerations will not prevail against the legal rights of the parties when definitely ascertained. It is difficult, if not impossible, to lay down any rule relating to proceedings in equity, or to state general principles applicable thereto, which should be held to operate conclusively on the mind of a chancellor under the facts of a particular case. The decree of a chancellor is of grace not of right, and he is not bound to make a decree which will do more mischief and work greater injury than the wrong which he is asked to redress : Coal Company v. Mellon, 152 Pa. 286. Each bill filed is a prayer to the conscience of a chancellor. The whole system of equity jurisprudence is founded on the theory that the law, by reason of its universality, is unable to do justice between the parties, and that equity, not being bound by common-law forms and pleadings, has more elasticity and can better reach this end. It seems like doing violence to the whole system to ask a court of equity to do an inequitable thing. In every case, to some extent at least, a chancellor must take into consideration the equities existing between the parties: In our state we have never departed from the settled rule that equity will not interfere when there is an adequate remedy at law. It is often difficult to determine whether the remedy at law is adequate, and in passing upon this question equity jurisdiction has been extended from time to time by our courts. A court of equity in passing upon/ the question whether the remedy at law is adequate, should have due regard to the situation of the parties. The case at bar is an illustration. The appellee sold and conveyed all of his coal to one of the appellants, which leased it to the other, and has been paid the consideration in full. By his express covenant the mining company is given the right to mine and remove all the coal, so that when in the prosecution of its mining operations it undertakes to mine and remove the entire stratum it is only doing what the appellee in the express language of his covenant said could be done. A rule of law, as old as the commonwealth, comes to his aid by charging upon' the underlying mineral estate the servitude of surface support, in the absence of the waiver of this right in the grant. The law has thus done for him. what he has not done for himself. Of course, he is entitled to have his rights protected, no matter how they arise, but his vendee and its lessee, the appellants here, on the other hand, must also be protected in the enjoyment of the rights acquired under the deed of conveyance. This was the situation of the parties at the time of the filing of the present bill. The appellants had the title to all the coal, with the right to mine and remove it. The appellee, under the rule of law, above referred to, had no title to the coal or any part of it, but only the right to have his surface sufficiently supported. In a sense both parties are standing upon their legal rights. It was not for appellee to say how much coal should be mined and removed, because the coal did not belong to him. He can insist upon his right to have the surface reasonably supported and if this is not done and injury results by failure in this respect, he can recover damages to the full extent of the injury done. Hone of our cases have gone further than this up to the present time. We are now asked to take a step in advance by recognizing the right of the owner of the surface to proceed in a court of equity to restrain the owner of the coal from mining and removing it in such a manner as may cause subsidence or breaking of the surface. .In other words, the court is asked to restrain a mining company from mining its own coal because it may reasonably be anticipated that the removing of the coal will cause a subsidence or breaking in the surface. Such a remedy would be a proper one if the facts of a particular case, warranted such intervention. If the threatened injury is of an irreparable character which could not be compensated in damages by an action at law ; or if buildings or other permanent improvements would be endangered; or if overlying strata of coal, or other mineral estate, would be seriously and permanently disturbed or displaced, by the mining of all the coal, it is clear equity would in proper case intervene to restrain such acts, even before the injury had been done. But none of these conditions are shown to exist in the present case. The coal has already been mined from the lower and more level parts of the tract and the coal yet to be mined is overlaid with a hilly surface furnishing a covering from 200 to 250 feet thick. The vein of coal varies from three feet six inches to four feet in thickness, and the evidence produced at the hearing, as well as the experience of all those familiar with mining operations, shows that very little, if any, damage will be done that part of the surface by mining and removing the coal. The loss of springs of water is principally relied on by complainant to show damage to his surface, but the evidence is not sufficient, in our opinion, to establish the fact that the springs were affected by failure to furnish surface support. Springs of water are frequently affected by the mining of coal even when the surface is properly supported, and under the facts of the present case the weight of the evidence would seem to show that failure to provide surface support was not the cause of the springs drying up. As to the buildings, the evidencep-s clear that the coal has not been mined from under the same, and, therefore, it cannot be said that any damage has been done to them from this cause. If at any time the appellants should undertake to mine the coal from under the buildings, or other permanent improvements on the tract, the owner could prevent the same by injunction. The appellants deny that they have mined the coal from under the buildings and aver that it is not their intention to do so, and under these facts a case for equitable relief is not made out in this respect. The evidence fails to disclose any threatened injuries of the character above indicated, and in our opinion the rights of the parties can be fully protected by an action at law. As was said in Pringle v. Vesta Coal Company, 172 Pa. 438: “If the owner of the coal undertakes to mine and remove it, as he has an undoubted right to do, and damage results to the surface, either (a) from negligence in conducting his mining operations, or, (b) from failure to properly and sufficiently support the surface, or (c) from both these causes combined, the surface owner is entitled to recover compensation for such injury as he may show he has sustained.” To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. If the injury be doubtful, eventual or contingent, equity will not interfere by injunction: Rhodes v. Dunbar, 57 Pa. 274. A chancellor will consider whether he would not do greater injury by enjoining than would-result from refusing and leaving the party to his redress at the hands of a court and jury : Richards’s Appeal, 57 Pa. 105 ; Huckenstine’s Appeal, 70 Pa. 102. The present case certainly comes within the spirit, if not within the express language, of the rule laid down in the cases just cited.

We, therefore, hold that for any damage done the surface in the past the complainant has his action at law ; that as to the threatened injury to the surface in the future he has failed to establish such facts as would warrant a court of equity to interfere by injunction ; and that, for injuries past, present and future so far as disclosed by the evidence in the present case he has a complete and adequate remedy at law to redress any wrongs that have been or may be done him.

Decree reversed and bill dismissed, all costs to be paid by appellants.

Mr. Justice Mestrezat,

dissenting:

The conclusion of the majority of the court is not in accord with professional opinion in the bituminous coal district of the state. It substantially overrules the principle settled bjr all our cases that, unless otherwise stipulated by contract, the owner of the surface is entitled to absolute support from the owner off the underlying or mineral strata, even if the latter be required! to leave in place the entire mineral estate. This principle conceded in the majority opinion to be well established, but it is claimed that the question involved in the case is one of remedy rather than of legal right. This seems to me a most singular proposition, when the bill filed in this case by the plaintiff is to restrain the defendant company from mining and removing the coal underlying the plaintiff’s surface, and thereby causing the surface to be destroyed, which, it is conceded, the defendant has no right, either at law or in equity, to do. It is not a question of one of two remedies; it is rather a question of whether the legal right of the plaintiff to absolute support for his surface shall be enforced by the only court whose process can furnish a remedy entirely adequate to the injury which will follow the illegal acts of the defendant company. When a party’s rights at law are admitted, or settled by an action, equity will always interfere to protect those rights, unless there is a complete legal remedy which is entirely adequate. And we have also distinctly held that the rule as to enjoining irreparable injuries only has no application to acts, especially corporate acts, entirely without authority, for which there is no adequate measure of damages at law: Groff’s Appeal, 128 Pa. 621. Here, the legal right of the plaintiff to surface support is' admitted, and if the defendant is permitted to mine and remove the coal without furnishing absolute support for the surface, the entire surface may be broken in such manner as to do irreparable iujury or damage, and for which the law furnishes no adequate measure of damages. This makes a clear case for the intervention of a court of equity.

It is futile for this court, as it does, to hold that the plaintiff is entitled to absolute support of his surface, if the court is to deny him a full and complete remedy to enforce that right. It is a denial of the right for a chancellor to refuse to restrain-the defendant from removing all the coal and permitting the surface to subside. It is not sufficient to say that if the defendant removes the coal and causes a subsidence of the surface, the plaintiff may bring an action at law for damages. The subsidence of the surface would result in the destruction of the plaintiff’s crops and buildings, and practically deny him the use of his surface. The result would, therefore, be disastrous to the plaintiff, and the remedy at law 'would be wholly inadequate.

It is also well settled that equity will interfere by injunction to restrain trespasses constantly recurring, and which threaten to continue: Scheetz’s Appeal, 35 Pa. 88; Stewart’s Appeal, 56 Pa. 413; Keppel v. Lehigh Coal and Navigation Co., 200 Pa. 649. And in such cases it is no objection to the jurisdiction of a court of equity that the injured party may have a remedy at law: Walters v. McElroy, 151 Pa. 549. The principle of these cases clearly rules the case at bar against the appellant. ' As the mining progresses the surface will be cracked and subside, and each day will result in one or more causes of action, until the coal has all been removed. The trespasses will, therefore, be constantly recurring, compelling the plaintiff, even if an action at law is adequate, to redress his injuries by a multiplicity of suits. It is apparent from these facts that equity is the proper remedy for redress of the plaintiff’s injuries under the established practice of this state.

The difference in the value of the nine-foot vein of coal and the surface is so great that it will warrant the owner of the coal in removing the entire body of it at the risk of any action at law which the owner of the surface may institute against him. In some counties in the western part of the state, the bituminous coal region, the value of the surface is from $50.00 to $100 per acre, while the nine-foot vein of coal underlying the surface is worth $500 to $2,000 and upwards per acre. The owner of the coal, therefore, can well afford to remove the entire body of it if he is only required to respond for the injury done in an action at law. He can afford to remove his coal if it causes the destruction of the buildings, the waters, and the crops, if he is compelled to pay only such an amount, as may be recoverable at law. I think it clear the uncontroverted facts show that such damages would be an entirely inadequate compensation for the injuries which are a necessary consequence of failing to properly support the surface. The removal of the coal being without the shadow of authority and an invasion of the conceded legal rights of the surface owner, it is in the face of all our decisions on the subject to say that a chancellor has no jurisdiction to entertain a bill to preserve the integrity of the plaintiff’s surface.

The ruling in this case will injuriously affect not only the owner of the superincumbent surface, but also the owners of all veins of coal lying between the nine-foot or river vein and the surface. If the owner of the nine-foot vein may remove it, being liable only in an action at law .for damages, he likewise is responsible onty in an action at law to the owner of the ñve-foot or lesser vein of coal lying above the larger vein. The effect, therefore, of this decree is to withdraw from the owner of the smaller veins of coal the remedy by injunction to protect his conceded legal right to have his vein remain intact, unbroken, and in a condition that it may be safely operated.. The only redress for such an invasion of the rights of the owner of the smaller vein is, under the ruling of this case, an action at law, the inadequacy of which is plainly apparent and is manifest upon a moment’s reflection. In the bituminous coal region of the state there are frequently two and sometimes three veins of coal beneath the surface which are owned by as many different persons or corporations. Notwithstanding the conceded fact in this case that the owner of the nine-foot vein has no /ight whatever to injure or damage the upper strata of veins of coal, this court now holds that if such injury or damage does occur the only remedy is an action at law, although the effect of such injury may be a total deprivation of the owner of his vein of coal. The prevention of such results is clearly within equitable jurisdiction.

This case is manifestly one for equitable intervention, and in my judgment the court below was entirely right in its decree restraining the defendant company from removing the coal in such manner as would damage the plaintiff’s surface.

Since writing the above my attention has been called to the recent case of de Saulles v. Percy Mining Company, 16 Pa. Dist. Rep. 684, decided in 1906 by the court of common pleas of the fourteenth judicial district. The question raised there is the identical question involved in this case, and the learned judge of that court after a very full and careful consideration of the question, citing numerous decisions and text-book authority in support of his conclusion, awarded an injunction restraining the owner of the coal from mining it without leaving proper support for the surface. The opinion in that case simply reflects the understanding of the profession in the bituminous coal region on the right of the surface owner to invoke the aid of a chancellor to compel the owner of the coal to furnish absolute support for the surface.

I would affirm the decree of the court below.


source: Caselaw Access Project

author: Mr. Justice Mestrezat, Mr. Justice Stewart,

license: Public Domain

text:
    Painter, Appellant, v. Painter.

      Will — Conversion—Equitable conversion — Intention of testator — Necessity — Failure of purpose.

    The crucial test in the application of the doctrine of equitable conversion always is whether it is absolutely necessary to carry out the purpose and object of the testator or settlor. If its interposition is a necessity, then it may be invoked with all its legal consequences. Before the rule can operate, however, in the case of a will, the purpose of a testator must be ascertained. Until this is done there is no room for the application of the doctrine. The intent of the testator being ascertained, then so far, and only so far, as there is a necessity to carry that into effect will there be conversion, though an actual sale of the land has taken place. The doctrine is not an inexorable rule of law to control the inheritance of estates, or to defeat the intestate laws of the state which direct the disposition of the estates of the dead. It is not an inheritance law, nor is it a rule, enforcible at law or in equity, by which a court can divert the transmission of real property from the inheritable channel provided by the laws of the commonwealth. It is simply a fiction, a creation of equity, to carry into effect the purpose in the disposition of his real estate which a testator has expressed in his will and which, without its application, would be defeated.
    The sole purpose of the doctrine of conversion in the case of a will, being to effectuate the intention of the testator, it cannot be invoked when his intention fails, or is incapable of accomplishment. The reason of the rule then ceases, and the rule itself no longer obtains.
    A direction to sell, for a particular object, or with a view of a contingent event, will not work a conversion, if the object cannot be accomplished, or the contingency does not happen, unless the testator plainly intended that the sale should be an end, and not merely a means.
    Testator by his will gave a farm to his wife, “she to have the use and occupancy so long as she lives and remains my-widow, then and in either case the farm aforesaid .... be sold, and the money arising from said sales of land, together with all the rest, residue and remainder of my estate of whatsoever kind, or nature the same may be, I give and bequeath to my two daughters to be equally divided between them share and share alike. The said sales of land to be made as my daughters, aforesaid, shall see proper.” He appointed his wife and one of the daughters executrices of his will. The daughter who was executrix died after her father, intestate, unmarried and without issue, leaving to survive her her mother and sister. The other daughter married and thereafter died intestate and without issue, leaving to survive her her husband and her mother. The latter subsequently died. Held, that the will did not convert the real estate into personalty so as to vest it as such in the husband of the deceased daughter, and the next of kin of the widow of the testator, but that the land descended as real estate, under the intestate laws, to the heirs of the testator.
    Brown, Potter and Stewart, JJ., dissent.
    Argued Oct. 23, 1907.
    Appeal, No. 179, Oct., T., 1906, by plaintiff, from decree of C. P. Butler Co., Dec. T., 1905, No. 72, dismissing bill in equity in case of Thomas Painter, E. H. Painter, Milton B. Painter, Delilah Duffy and Melvina Gill v. Peter Painter (with notice to J. L. M. Halstead, Miss M. L. Buckley and H. L. Buckley).
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for partition.
    Before Galbreath, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      II. II. Goucher, with him Jacob M. Painter, for appellants.
    The testator here made no devise of the fee of his real estate or devise over. He evidently contemplated his two daughters, Minnie and Helen, living at the death of his widow, and authorized a sale at her death if they could agree and saw proper to make it, as a convenient mode of division of the estate between them. This was the single and only object and purpose for which he authorized a sale. The failure of that object and purpose by the events which have occurred since his death, was not contemplated by him and he failed to provide for them. He did not contemplate, much less intend, that the power of sale should be exercised for any other purpose. There was, therefore, no conversion : Rudy’s Est., 185 Pa. 359 ; Filbert’s Est., 195 Pa. 295.
    Where the result is to change the course of inheritance the law does not favor a conversion, and it will be presumed only so far as is necessary to effectuate the intention of the testator: Hunt’s Appeal, 105 Pa. 128 ; Swift’s Appeal, 87 Pa. 502 ; Perot’s Appeal, 102 Pa. 235 ; Wilkinson v. Buist, 124 Pa. 253 ; Fidler v. Lash, 125 Pa. 87 ; Darlington v. Darlington, 160 Pa. 65.

      When the purpose of conversion is attained, conversion ends: Foster’s Appeal, 74 Pa. 391-397 ; Heaberly’s Appeal, 191 Pa. 239-248 ; Rudy’s Est., 185 Pa. 359 ; Henszey v. Gross, 185 Pa. 354 ; Hunt’s Appeal, 105 Pa. 128 ; Swift’s Appeal, 87 Pa. 502 ; Perot’s Appeal, 102 Pa. 235 ; Wilkinson v. Buist, 124 Pa. 253 ; Fuller v. Lash, 125 Pa. 87 ; Darlington v. Darlington, 160 Pa. 65 ; Worsley’s Est., 36 W. N. C. 247.

      W. D. Brandon, with him Win. Z. Murrin and John Mnrrin, for appellees.
    The testator disposed of and intended to dispose of all his estate, real and personal, and died intestate as to none: Cooper’s Est., 206 Pa. 628 ; Darlington v. Darlington, 160 Pa. 65 ; Vanuxem’s Est., 212 Pa. 315.
    Where the property devised is real and directed to be divided for the general purposes of the will, as, for instance, to form with personalty a common fund for all the purposes of the will although it should happen that some of them fail, it will be considered an absolute conversion: Burr v. Sim, 1 Whart. 252 ; Sauerbier’s Est., 202 Pa. 187.
    Where a sale and conversion is directed by a testator the failure of the purpose and object of sale which will prevent conversion from taking place must occur in the testator’s lifetime : Luffberry’s App., 125 Pa. 513 ; McClure’s App., 72 Pa. 414.
    January 20, 1908 :
   Opinion by

Mr. Justice Mestrezat,

This is a bill filed in the court below for the partition of 120 acres of land and the undivided one-seventh interest in another tract of sixty acres situate in Buffalo township, Butler county. George W. Painter died seized of the land on May 22, 1899, leaving to survive him a widow, Mary E., and two daughters, Minnie R. and Helen M., and, as brothers and sisters, the plaintiffs and Peter Painter, the defendant in the bill. By his last will, George W. Painter directed an appraisement and sale of his personal property and the application of the proceeds to his debts and funeral expenses, and then provided as follows : “I give and bequeath to my beloved wife, Mary E. Painter, the farm on which we now reside situate in Buffalo Township, Butler county and state of Pennsylvania, containing one hundred and twenty-two acres less or more. She to have the use and occupancy of said farm so long as she lives and remains my widow, then and in either case the farm aforesaid and also my undivided one-fourth interest in another farm of sixty acres situate in Buffalo township, Butler county, Pennsylvania, be sold and the money arising from said sales of land, together with all the rest, residue and remainder of my estate of whatsoever kind or nature the same may be I give and bequeath to my two daughters, Minnie R. and Helen M. Painter to be equally divided between them share and share alike. The said sales of land to be made as my daughters, aforesaid, shall see proper. I further direct that my two daughters, Minnie R. and Helen M. Painter shall have a good and comfortable home on my fawn on which we now reside so long as they remain single.” He appointed' his wife and daughter Minnie R. executrices of the will.

Minnie R. Painter died on June 27, 1901, intestate, unmarried and Avithout issue, leaving to survive her her mother and sister. Helen M. Painter married J. L. M. Halstead, and died November 29, 1903, intestate, and Avithout issue, leaving to survive her, her husband, J. L.' M. Halstead, and her mother, Mary E. Painter. The latter died June 17,1905.

This bill Avas filed by the brothers and sisters of George W. Painter, Avho claim that on the death of his AvidoAv and daughters the land descended to them and their brother Peter Painter, one of the defendants. Halstead, the husband of Helen M. Painter, and the two sisters of Mary E. Pa inter, the Avidow, intervened and became defendants in the action, and claim that the Avill of George W. Painter Avorked an equitable conversion of the land into personalty; that it vested in his daughters as such; and that on the death of Minnie R., intestate and Avithout issue, her share vested in her mother, Mary E. Painter, absolutely, and at the latter’s death, intestate, it vested in her tAvo sisters. Halstead, for the same reason, claims the interest of his Avife, Helen M., the other daughter of George W. Painter. The right, therefore; of the plaintiffs to maintain this bill and have the real estate in question partitioned depends upon whether the will of George W. Painter worked an equitable conversion of the land into personalty. If it did, the bill cannot be maintained; if it did not, the real estate descended to the brothers and sisters of George W. Painter, and they have the right to have it partitioned.

The doctrine of equitable conversion is a creature of equity, and is wholly unknown to the law. It is based on the familiar maxim that what ought tobe done will be considered or treated as already done. It is now a well-recognized rule of equity jurisprudence, and is in constant application in courts exercising chancery jurisdiction. The master of the rolls states the principle in Fletcher v. Ashburner, 1 Bro. C. C. 497 (1779), a leading case on the subject, as follows (p.499): “Money directed to be employed in the purchase of land and land directed to be sold and turned into money are to be considered as that species of property into which they are directed to be converted.” The rule is operative whether the direction is contained in a will or other instrument of writing. Its sole purpose, however, as declared in text-books and the adjudicated cases, is to effectuate the intention of the testator or parties to the instrument. The crucial test in the application of the doctrine always is, whether it is absolutely necessary to carry out the purpose and object of the testator or settlor. If its interposition is a necessity, then it may be invoked with all its legal consequences. Before the rule can operate, however, in the case of a will, the purpose of the testator must be ascertained. Until this is done there is no room for the application of the doctrine. The intent of the testator being ascertained, then so far, and only so far, as there is a necessity to carry that into effect will there be conversion, though an actual sale of the land has taken place. The doctrine is not an inexorable rule of law to control the inheritance of estates, or to defeat the intestate laws of the state which direct the disposition of the estates of the dead. It is not an inheritance law, nor is it a rule, enforcible at law or in equity, by which a court can divert the transmission of real property from the inheritable channel provided by the laws of the commonwealth. It is simply a fiction, a creation of equity, to carry into effect the purpose in the disposition of his real estate which a testator .has expressed in his will, and which, without its application, would be defeated. These principles are well settled and are recognized by the courts in the application of the doctrine.

Mr. Justice Shabswood states the rule with its limitations in Foster’s Appeal, 74 Pa. 391. In delivering the opinion of the court he says (p. 397): “ Conversion is altogether a doctrine of equity. In law it has no being. It is admitted only for the accomplishment of equitable results. It may be termed an equitable fiction, and the legal maxim in fictione juris semper subsistit equitas has redoubled force in application to it. It follows of necessity, that it is limited to its end. . . . There must be some purpose recognized as lawful to be accomplished by a conversion before equity will permit it to have place. . . . "When the purpose of conversion is attained, conversion ends.”

In Lorillard v. Coster, 5 Paige Ch. 172, Chancellor Walworth, delivering the opinion of the court, said (p. 218): “ Upon the principles of equitable conversion, money directed by the testator to be employed in the purchase of land, or land directed to be sold and turned into money, is, in this court, for all the purposes of the will, considered as that species of property into which it is directed to be converted, so far as the purposes for which such conversion is directed to be made are legal and can be carried into effect.”

While the doctrine of equitable conversion is well settled on principle and reason, and is recognized in numerous cases determined by this court, the sphere or limitation of its application is equally well established and should be observed. The sole purpose of the doctrine, in the case of a will, being to effectuate the intention of the testator, it cannot be invoked when his intention fails or is incapable of accomplishment. The reason of the rule then ceases, and the rule itself no longer obtains. This principle is as well settled, on reason and authority, as the doctrine of equitable conversion itself. It is the logical consequence of the doctrine which cannot be applied-unless there is an existing purpose of the testator to be carried into effect. The testator’s intention in regard to the disposition of his property, as declared in his will, having failed, an alternative, undisclosed intention cannot take its place, and the doctrine of equitable conversion be invoked to carry it into effect. The court is not at liberty to surmise what the intention of the testator would have been, and what disposition he would have made of his property if he had anticipated the failure of the disposition which he makes in his will. He is dead, and no one can speak for him and declare an alternative intent in the disposition of his property. Any other purpose than that named in the will is necessarily unknown, and the doctrine of equitable conversion cannot be applied to carry out his unknown intention. lienee the necessity for enforcing the rule, stated bjr Mr. Scott, afterwards Lord Eldon, in his argument in the leading English case of Ackroyd v. Smithson, 1 Bro. C. C. 503, that the reason of the intention ceasing the intention should be taken to have ceased.

This limitation upon the doctrine of equitable conversion is settled by a uniform current of decisions in this country and in England. In Rudy’s Estate, 185 Pa. 359, a life interest in land was given the widow, and at her death the executors were to sell and divide the proceeds of sale equally between his son and daughter, if they be living, or the issue of such of them as may then be deceased.” The son died before the testator, the daughter after the testator but before the life tenant, leaving a husband and two children, one of whom died before the life tenant. It was held that the surviving child of the daughter, subject to the life interests of the widow and father, took the lapsed share as heir, and the residue as sole devisee. In the opinion of the court below in that case, which we adopted, it is said (p. 361): But the intention to effect a sale was auxiliary to another and paramount intention- — -to effect a convenient transmission of testator’s property to the devisees. The one intent affected the means, and the other the end, and if, for any reason, the means were useless towards attaining the end, the lesser intent should be discarded. The purpose of a sale, and therefore of a conversion, was that the estate might be divided; if there was no necessity for a division the purpose fell and the estate remained unconverted.”

In Morrow v. Brenizer, 2 Rawle, 185, Mr. Justice Huston, speaking of the admitted limitations or qualifications of the doctrine of equitable conversion, said (p. 193): “ The rule does not apply where the object for which the sale was to be made ceases. The power to sell is then at an end, and lands continue lands. The power to sell ceases when the object ceases. It ceases when the right to the money and the land unite in the same person. It always ceases where one of the devisees dies, so that the legacy lapses; and so far the heir takes. And where the money to be raised is to go to the heir, the descent is never broken for a moment.”

In Nagle’s Appeal, 13 Pa. 260, Mr. Justice Bell in delivering the opinion, after giving the rule as stated by Mr. Cox in his note to Cruse v. Barley, 3 P. Wins. 20, that the question of conversion out and out depends on whether the testator meant to give to the produce of real estate the quality of personalty to all intents, or only so far as respected the particular purpose of the will, said (p. 265): “ The authorities from which he deduces this doctrine, to be sure, have a relation to lapsed bequests, but I take it, the principle is equally applicable where, from any cause, conversion to meet the exigencies of a will, is prevented.”

In Luffberry’s Appeal, 125 Pa. 513, the bequest to the charities in the will failed by reason of the testator’s death within one calendar month after the execution of the will. For this reason, it was held that the power to sell to pay these bequests became inoperative and the land remained unconverted and descended to the testator’s heirs-at-law. In that case, it is said in the opinion of the court below, approved by this court, that “ conversion, as is well settled, is an equitable doctrine and founded upon some good and sufficient reason for declaring land to be money and money land. Where this fails to apply, the doctrine is inapplicable and equity refuses its aid because it would be unreasonable and consequently inequitable.”

In Lindsay v. Pleasants, 4 Iredell’s Equity, 320, Mr. Justice Daniel, delivering the opinion of the supreme court of North Carolina, said (p. 323): “ It is a clear rule in equity, that, where real estate is directed to be converted into personal for any express purpose, which fails, to consider the disappointed interest as realty (although the land has been sold), and resulting to the heir. The rule equally applies to cases where the real proceeds are blended and bequeathed with the personalty (after answering particular objects), and the context of the will affords no manifestation of the testator’s intention to convert the real into personal estate, out and out.” And in Wood v. Cone, 7 Paige Ch. 471, Chancellor Walwobti-i says (p. 4Y6): “ Upon the principles of equitable conversion, the proceeds of the real estate directed by the testator to be sold is only considered as converted into personalty for the purposes of the will. And if any estate or interest in the converted funds was not legally and effectually disposed of by the will, there was a resulting trust, as to such estate or interest, in favor of the heir at law.”

Judge Hake in his notes to Ackroyd v. Smithson in 1 White & Tudor’s Leading Cases in Equity, 1171, says, after a review of the numerous authorities on the subject: “ It may be regarded as well settled, that a direction to sell, for a particular object, or with a view of a contingent event, will not work a conversion, if the object cannot be accomplished, or the contingency does not happen, unless the testator plainly intended that the sale should be an end, and not merely a means.”

The supreme court of the United States recognizes the same limitation of the doctrine of equitable conversion. In an elaborate opinion in Craig v. Leslie, 3 Wheaton, 563, Mr. Justice Washington says (p. 582): “The whole of this doctrine proceeds upon a principle which is incontrovertible, that where the testator merely directs the real estate to'be converted into money, for the purposes directed in his will, so much of the estate, or the money arising from it, as is not effectually disposed of by the will (whether it arise from some omission or defect in the will itself, or from any subsequent accident, which prevents the devise from taking effect), results to the heir at law, as the old use not disposed of.”

In England the limitation upon the doctrine is well settled. The leading case is Ackroyd v. Smithson, 1 Bro. C. C. 503, 1 Wh. & T. Lead Cas. in Equity, 1171. The elaborate argument of Mr. Scott, afterwards Lord Eldon, convinced Lord Chancellor Thurlow and firmly settled the doctrine in that jurisdiction, that where a testator directs his real estate to-be sold and the proceeds to be applied to a special purpose, which wholly or partially fails, the undisposed of beneficial interest will go to his heir at law and not to his next of kin, although the land may have been actually converted into money. In Ripley v. Waterworth, 7 Ves. Jr. 425 (1852), the court says (p. 435): “ There is an obvious difference from all the cases, which establish this general principle, that where a person dealing with his own property only has directed a conversion for a particular special purpose, or out and out, but the produce to be applied to a particular purpose, when the purpose fails, the intention fails; and this court regards him as not having directed the conversion.” In stating the principle announced in the adjudicated cases in his opinion in Hill v. Cock, 1 Vesey & Beam, 173 (1830), Lord Eldon said (p. 175): “Where a testator means with regard to a particular purpose, to convert his real estate into personal, if that purpose cannot be served, the court will not infer an intention to convert the estate for any other purpose, not expressed.” In Taylor v. Taylor, 3 De G. & M. & G. 190 (1853), it was held that where one of the beneficiaries died in the lifetime of the testator his share of the proceeds of sale was to be decreed real estate and went to the heir at law. Lord Cranworth, delivering the opinion, said (p. 195): “ The rule is established by the cases of Digby v. Legard, 3 P. Wms. 22, n., and Ackroyd v. Smithson, that if a testator disposes of his property, realty and personalty, as a mixed fund, and as to part of it his will cannot take effect, the heir at law will take so much as was the produce of real estate, upon the principle that the heir at law cannot be disinherited without express words.” And in 1864 it was determined by the House of Lords in Bective v. Hodgson, 10 H. L. C. 656, that in the application of the principle ruled in Ackroyd v. Smithson it is immaterial whether the conversion directed by the will has or has not actually taken place; that so far as the beneficial purpose fails the real estate or the money, as the case may be, retains its original character for the purpose of ascertaining the ownership of it.

The same rule prevails in New York, and is announced in Read v. Williams, 125 N. Y. 560, 21 Am. St. Rep. 743, where Andrews, C. L, speaking for the court, observes (p. 752): “ The case falls within the general principle in many cases, that a power of sale in a will, however peremptory in form, if it can be seen that it was inserted in aid of a particular purpose of the testator, or to accomplish his general scheme of distribution, does' not operate as a conversion, where the scheme or purpose fails by reason of illegalit}’, lapse or other cause. In that case the property retains its original character, and it goes to the heir or next of kin as real estate or person^ alty, as the case may be.”

The same rule is universally recognized by text writers. Mr. Jarman (1 Jarman on Wills, 6th ed., 589), says: “Every conversion, however absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to prevail as between the persons on whom the law casts the real and personal property of the intestate, namely, the heir and next of kin.” Says Mr. Bispham (Eq., sec. 315): “ Where the purposes of the conversion have totally failed the property will devolve according to its original character.” Mr. Pomeroy (3 Pomeroy’s Equity Juris, sec. 1170) says: “Where a conversion .... is directed .... and the purposes and objects for which such conversion was intended totally fail before the directions for a conversion are carried into effect, the property .... will remain in its original condition .... and will result in its original unchanged form to the heirs or to the personal representatives of the testator .... as the case may be.”

It is clear, therefore, that, under all the authorities, when the purpose of the testator, as disclosed by his will, has failed or is incapable of accomplishment the operation of the rule of equitable conversion ceases, the property retains its original character, and goes to the heir or next of kin, as the case may be. It is conceded, as held in Ackroyd v. Smithson, 1 Bro. C. C. 503, and Taylor v. Taylor, 3 De. G. M. & G. 190, that where real estate is directed to be sold and the proceeds to be paid to certain individuals, and one of the beneficiaries dies in the lifetime of the testator, that as to his share a conversion does not take place, and it goes to ‘the heir at law. We are unable to distinguish between such a case, and where the purpose fails subsequent to the death of the testator and prior to the time when tbe actual conversion can take place. The reason of the rule would clearly extend it to the one case as well as to the other. If the conversion fail, because the purpose of the testator fails and hence cannot be carried out, it logically follows, we think, that there is, no- conversion if the purpose of the testator fail prior to the time when the actual conversion of the property can take place. The doctrine is a fiction to aid the testator in the accomplishment of his purpose, and when the purpose ceases for any cause and at any time, it necessarily follows that the fiction becomes inoperative and cannot be invoked to accomplish something which cannot be done.

It is clearly not the purpose of the doctrine of equitable conversion to effect results antagonistic to the law in whose realm it has no abiding place. To hold, however, that the doctrine is applicable where the purpose of the testator fails subsequent to his death is to permit it to defeat the intestate laws of the state, and to establish another and different channel for the transmission of estates of intestate decedents. It would strike down the declared policy of the state as embodied in the statute wherein it is provided that no person, who is not of the blood of the ancestor, or other relative from whom any real estate descended, or by whom it was given or devised, shall take any estate of inheritance therein. Such would frequently be the manifest result of applying the doctrine of equitable conversion in cases where the purposes of the testator or settlor had failed at a period subsequent to his death. It would produce such a result in the present case. We cannot assent to give it this effect. The legal consequences of so holding as well as the reason for the rule itself imperatively demand that the application of the doctrine cease whenever the purpose that commands its intervention has ceased.

Our conclusion as to the application of the doctrine of equitable conversion does not impair or defeat the doctrine itself. It simply limits its enforcement to cases where the facts warrant its intervention. If the cause for invoking it in any particular case exists, that is, if its application is necessary to effectuate the intention of the testator or settlor, then it may be invoked. If such cause does exist but has ceased before the actual conversion takes place, then it cannot be applied.

The obvious intent which George W. Painter had in converting his real estate into money after his widow’s death was, as expressed in his will, that he might give it to his “two daughters, Minnie R. and Helen M. Painter to be equally divided between them share and share alike.” His widow was to retain possession of the land during her life, permitting, however, their two daughters to reside there while single ; and for the purpose of making a division between his two daughters after her death he directed the land to be converted, “ as my daughters, aforesaid, shall see proper.” The necessity for converting it for this purpose entirely failed upon the death of the two daughters prior to their mother’s death, when the actual conversion was to take place by a sale of the land. With the death of his two daughters, the purpose he had in converting the land ceased to exist, and thereafter there was no purpose or intent of George W. Painter with regard to his land which the doctrine of equitable conversion could operate upon. It was still laud and whoever took it, took it unconverted and in its original character. Equity will not, under such circumstances, interpose to defeat the intestate laws of the commonwealth and declare that the land shall be considered as personalty so as to vest its title in the next of kin of the widow, who is not of the blood of the party through whom it came.

It may be argued that the construction we put upon the doctrine of equitable conversion will frequently defeat the rights of creditors. Equity, however, never enforces the doctrine for the protection of creditors. It acts solely in the interest of the testator or settlor, to carry out his intention, and can never be invoked for the purpose of placing title to property in anyone in order that his creditors may be benefited. It may be suggested in this connection that it is a well-established rule that a beneficiary may accept the property in its unconverted condition. This may and frequently does prevent the creditor of the beneficiary from enforcing his claim.

It follows from what has been said, that at the death of the survivor of the daughters of George W. Painter, the legatees to whom the proceeds of the real estate were to be distributed, the purpose for which the testator directed the conversion of Lhe real estate ceased, and that thereafter on the death of the widow, who had a life estate therein, it descended as real estate to the heirs of George W. Painter. They, therefore, being the owners of the real estate, have a right to have it partitioned among themselves.

The decree of the court below dismissing the bill is reversed, and the bill is reinstated with a procedendo.

Mr. Justice Stewart,

dissenting :

The will in this case contains an imperative and unconditioned direction for the sale of testator’s real estate upon the death of the widow, to whom' a life estate is given. "With nothing to countervail or qualify this positive direction, the undoubted effect would be a conversion of the real estate into money. The contention is that the direction to sell, though imperative, has regard to a conversion for a limited special purpose, that is to say, for convenience of division and distribution between testator’s two daughters, to whom the will gives the entire proceeds of the sale ; that inasmuch as both daughters died without issue, one unmarried, during the widow’s life tenancy, a sale is not required for the purpose of the will; in other words, that the direction to sell was but a means to a definite end, and the object failing the incident fell with it.

The doctrine of equitable conversion is undoubtedly subject to the qualification here expressed. Whether the present case falls within the qualification is the determining question here. A conversion directed by a testator is a conversion only for the purposes of the will; when the purpose is limited and special the conversion takes place only so far as it may be consistent with and is related to the purpose indicated. It is universally allowed that when the purpose or object of the conversion fails, the estate remains unconverted to the extent of such failure. But what is meant by failure of purpose or failure of object? Both by text-writers and in the adjudicated cases these terms are used interchangeably, and each may be regarded as the other’s equivalent. We ean perhaps turn to no authoritative definition of either, yet an examination of the cases will show a fixed and definite meaning which has never been departed from. This much maybe safely affirmed, that in every adjudication where failure of purpose or object has been allowed to defeat a positive direction to sell, failure was held to mean failure in the gift itself by lapse or other certain avoidance, the payment of which was the object and purpose of the direction. In no case has the qualification been applied where the gift had become effective by the vesting in the donee. In the leading and initial case of Ackroyd v. Smithson, 1 Bro. C. C. 503, the disposition of money to arise from the sale of the real estate was originally completed, but lapse by the death of two of the residuary legatees in the lifetime of the testator caused the failure of the disposition as to their two shares, which, although actually converted into money, resulted to the heir at law as undisposed real estate. This case established the rule, since invariably followed, in cases of lapsed gifts. It was in turn followed by cases where the qualification was applied to defeat the general rule, on the ground that the gift was illegal and therefore failed, as where the gift offended against the rule relating to perpetuities. It Avas applied also where the gift failed because it Avas made to depend on a contingency that never happened; and to cases where the direction was to sell for the purpose of paying debts Avhich the testator subsequent to the making of his will had himself paid. These cases define the limits of the qualification as fixed by English authorities, and nothing can be found in our oavii cases that gives countenance to any wider application. While the qualifying doctrine has frequently been recognized in our cases, it has rarely happened in Pennsylvania that the qualification has been applied to defeat or avoid a positive direction to sell. Luffberry’s Appeal, 125 Pa. 513, is an instance Avhere it Avas applied, on the ground that a charitable gift for the payment of Avhich the property directed to be sold Avas void, because the testator did not survive the statutory period required in such case. Rudy’s Estate, Hudson’s Appeal, 185 Pa. 359, is another. This latter case is supposed to make for appellants’ contention; but an examination Avill show that it is in no respect a divergence from the rule as we have stated it to be. In that case, following the direction to sell upon the death of the widow, Avas a gift of the proceeds of the sale to testator’s two children, Sarah. K. and George W., “ if they be living, or the issue of such of them as may be deceased.” George W. died in the lifetime of the testator; Sarah survived the testator, but died during the life tenancy, leaving a husband and two children. The husband, as life tenant of the undivided fourth in the realty, petitioned for an order of sale, and a division of the proceeds agreeably to the provisions of the Avill. The petition was denied because the admitted purpose of the direction to sell Avas to effect a convenient division and transmission of testator’s property, and inasmuch as the share of George W. had lapsed, he having died in the testator’s lifetime, with the result that the entire estate passed to Sarah 3L there was an entire failure of purpose, and the conversion Avas therefore avoided. The lapsing of the gift to George W. Avas the determining factor, as is fully indicated in the opinion of the court beloAV, upon Avhich the decree dismissing the petition was affirmed. Referring to the fact that the retention of the quality of the estate which the testator intended to transmute into another different quality, may work a radical change in the interests of his beneficiaries, the learned judge says: But that consideration can have no weight when we reflect that what has happened was outside of his contemplation altogether. He supposed that more than one person should share the residue. How can we, with any show of propriety, speculate upon what, if he had foreseen the actual event, he would or would not have done either by way of preferring the heir on the one hand or the next of kin on the other ? The share which is in controversy lapsed by operation of law. Its disposition cannot be referred to an intention of the testator, because he had no intention with regard to it.” The case of Yerkes v. Yerkes, 200 Pa. 419, also relied upon by the appellants, ife not in point. The ground upon which the decision there rests is, that the direction to sell was not imperative and peremptory, and consequently did not work a conversion. "Whatever other cases there are in Pennsylvania, where a direction to sell has been avoided because of failure of purpose, it may confidently be affirmed, that upon examination each will be found to rest upon the insufficiency of the will to make effective some particular disposition of all or part of testator’s estate. In the present case there was no failure of the gift, and therefore no failure of purpose, notwithstanding the fact that before actual conversion of the land others had succeeded to the rights of the beneficiaries named in the will. Immediately upon the death of the testator the gift which was the proceeds of the sale, vested in the two daughters. It comes to nothing that they never had actual enjoyment of it; it vested in them, and was theirs to do with as they pleased. As was said of a similar bequest in Morrow v. Brenizer, 2 Rawle, 185, it vested as money, not by the magic of a fiction, and contrary to the dictates of common sense, but by the express provisions in the will which impressed upon it that particular character. Here, as there, it requires a fiction to make it anything else. It is a mere assumption to say that the testator’s purpose contemplated nothing but equality of division between his two daughters. Had they or either of them died leaving issue, it would hardly be pretended that the testator’s provision did not have regard to division among such issue. Neither gift nor the incident of sale was made dependent upon their having issue. Admitting that the purpose of the direction was for distribution of the proceeds of sale, there is nothing in the will that gives support to the theory that no distribution was intended except in the event of the two daughters .surviving the period of sale.

It is idle to contend that the decision in the present case does not mark a wide departure from long-established principles. The plain logic of it is, that notwithstanding a testator has directed in unequivocal and unconditional terms that his real estate be sold, that this direction is to be wholly disregarded if by reason of the happening of certain events after testator’s death a sale is unnecessary to effectuate a purpose, not expressed in the will, but one which to the judicial mind seems to have been the purpose the testator had in view in directing the sale.

If there be any authority for so conditioning the application of the doctrine of conversion my attention has not been directed to it.

' I dissent from the view expressed in the majority opinion in this case.

Brown and Potter, JJ., join in the dissent.


author: Mr. Justice Mestrezat,

text:
    Painter's Estate.
    Argued Oct. 23, 1907.
    Appeal, No. 116, Oct. T., 1906, by Thomas Painter et ah, from decree of O. O. Butler Co., ordering sale of real estate in Estate of George W. Painter, deceased.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition to sell real estate. For the facts see Painter v. Painter, ante, p. 82.
    January 20, 1908 :
   Opinion by

Mr. Justice Mestrezat,

This was an application in the court below by J. L. M. Hal-stead, administrator d. b. n. c. t. a. of George W. Painter, deceased, for an order to sell the testator’s real estate so as to carry into effect the provisions of his will, which directs that on the death of his widow the real estate shall be sold and the proceeds divided between his two daughters. It is claimed by the petitioner that under the provisions of the will there was an equitable conversion of the real estate into personalty, and that being personal property, it is distributable as such. The court granted the order prayed for.

Subsequently, Milton 13. Painter, one of the heirs-at-law of George W. Painter, deceased,- presented his petition to the court, denying the conversion of the real estate and the authority of the administrator to make sale of it, and prayed the court to set aside and revoke the order of sale theretofore granted. This was refused, and Milton B. Painter has appealed.

In an opinion handed down herewith in the case of Thomas Painter et al. v. Peter Painter, ante, p. 82, we have held that the will of George W. Painter did not create a conversion of his real estate, and that upon the death of his widow, who had a life estate therein, it went to his heirs-at-law, and was not personalty and to be distributed as such. It therefore follows that the application made in the court below by the administrator for an order to sell the real estate should have been denied, and that the order of the court directing a sale was error.

The court should have granted appellant’s petition, and set aside and revoked the order to the administrator for the sale of the real estate.

The decree of the court below refusing to set aside and revoke its former order directing the sale of the real estate of George "W. Painter, deceased, is now reversed, and the decree of the court granting the order of sale is set aside and revoked at the costs of the appellee.