Appeal of Shoemaker

Chief Justice Mercer delivered the opinion of the court, A tenant for life, when not precluded bj'- restraining words, may not only work open mines, but may work them to exhaustion. Westmoreland Coal Company’s Appeal, 4 Norris, 344, and cases there cited. The will of the testatrix, which we are called upon to construe, expressly authorized the trustees therein named if they deemed it proper, to “lease the Newport farm for coal mining purposes.” In the exercise of that discretion the trustees did lease and are receiving the rents, income and profits therefrom. The testatrix devised to the trustees “ all the rest, residue and remainder of her estate, real, personal and mixed,” which included the Newport farm, in trust for “the use, property and benefit” of her grandson. The trustees to apply “the annual income and proceeds thereof” to his support, maintenance and advancement until he should arrive at the age of twenty-two years, and thereafter to pay over to him “the hnnual income and proceeds of any accumulations thereof yearly during his natural life,” remainder over. We think the authority to lease the land for coal mining purposes, indicates very clearly an intent of the testatrix to make the proceeds a part of the annual income to [395] be paid over to her grandson as the life tenant. It follows the court was correct in the conclusion at which it arrived. The assignments are not sustained. Decree affirmed and appeal dismissed at the costs of the appellants, to be paid out of trust funds.