Appeal of Forcey & Mitchell

Mr. Justice Trunkey delivered the opinion of the court, The controlling question is whether the validity of the respective deeds by David Gearhart, Hannah Haberacker, Catharine Goss and Susan Mill ward to Perks and Cassanova was directly involved in the action in equity by Riddles, administrator of John Gearhart, deceased, against Perks, Parker and Leonard. The bill was filed by the trustee, acting under the will of said deceased, for an account of the royalty of ton cents a ton for all coal mined by the respondents on a particular leasehold. Neither bill nor answer mentioned the deeds, but the respondents denied the complainant’s right to recover said royalty, and averred the same was vested in themselves. The decree required Perks and Parker to pay to the complainant $1,082, Parker and Leonard to pay $948.20, and Leonard to pay $90.31; also that Leonard should render an account for all coal mined since May 11, 1877, and pay the royalty on the same to date of the decree, and thereafter account and pay in like manner. Subsequently, a reference was made to the Master to state an account of the coal mined since Maj 11, 1877, and the value thereof, which he did. Following this report the only decree of record is dated October 26, 1881, which directs the trustee “ to collect the moneys arising under the lease mentioned in the will of John Gearhart, deceased, [514] and after first providing for support of Lydia Gearhart, according to the will of John Gearhart, deceased, retain the balance in his hands, subject to the further order of the court, in that behalf to be made hereafter.” On the date of that decree the court awarded execution for the amount of royalty stated in the report. The pleadings and decrees of the court contain no reference to the deeds, but show a claim by the trustee and recovery based on the will of John Gearhart, deceased. After recital of the lease to Williams, the testator provides thus: “I direct that after my death my executors shall take charge of the same, and from the proceeds thereof first give to my wife, Lydia Gearhart, aforesaid, an ample and sufficient support while she may survive my death, and then the}' shall divide the remainder equally among my children, share and share alike.” The decree recognized an active trust. It was active during the life of Lydia Gearhart. The trustee was entitled to receive the proceeds of the leased coal land during her life, and use the whole, if necessary, for her support. While she lived he had a duty to perform. At her death the remainder was to be divided among the testator’s children. Then the duties of the executor or trustee ceased; the children became entitled to possession and enjoyment. There is nothing from Avhich it can be inferred that the testator intended the trust to continue after the death of his wife. Where no duties and powers are conferred there is no active trust. By conferring duties and powers upon his executors for the benefit of his wife during her life, the testator declared the limit of the trust. From the Master’s opinion it appears that said deeds were adduced before him as evidence, and also the deed from Lydia Gearhart to Perks and Cassanova. He held that the trust was active for both widow and children, and that all the deeds , were void. Although the suit was- by the trustee who was entitled to recover all unpaid royalty, the Master ruled that the sum of the considerations of the deeds, $1,600, should be deducted from the amount of royalty owing by Perks and Parker; but as they were insolvent nobody was actually benefited or hurt by the deduction. Leonard was not interested in the amount owing by Perks and Parker; it mattered not to him whether the decree against them was for payment of the sum they owed, $2,682, or for only $1,082. And the alleged receiving back of the money paid to the grantors has no other foundation than a paper deduction against an uncollectible debt, without procurement or assent of the grantors. The grantors in the deeds were not parties to the bill in equity. . The. trust being active during the life of Lydia Gearhart, there was no error in the decrees. If the deed made by her [515] was Invalid, it followed that Leonard was bound to pay the royalty to the trustee precisely according to the decrees. And were it otherwise, the decree would be binding upon the parties until reversed or set aside. “ A judgment concludes not merely as to the point decided, but as to the matter which it was necessary to decide, and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue.” It was unnecessary to decide anything as to the rights of the appellees, nor does the record show an issue and decree respecting the matter now in controversy. The issue involved the existence of the trust and the validity of the deed by Lydia Gearhart to Perks and Cassanova. It was necessary to decide that the trust was active, and that she had no power to defeat it to entitle the trustee to recover. But it was unnecessary to decide that the trust was created for an indefinite time, to be measured by the duration of the lease which was to continue until all the coal should be mined, unless the lease should be forfeited for a specified cause. Nor was it necessary to decide that persons entitled to the property at the termination of the trust could not convey their interest. These unnecessary rulings appear in the opinion, not in the pleadings and decree. A record is not conclusive as to any allegations which were immaterial and not traversable: 1 Greenl. Ev., § 528. The trustee set forth the lease and will as the foundation of his right to recover the royalty, and averred that the widow and children of the testator were all living. Had the widow been dead, that fact would have defeated his action, unless for unpaid royalty accrued within her lifetime. Had the respondents obtained releases or grants from all the children, such fact would not have barred the trustee’s right to recover the royalty while the widow lived. Then, whether the deeds were pleaded, or averred in answer, or offered in evidence, they were immaterial. A judgment of a court of concurrent or exclusive jurisdiction is not evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment. Where the defendants pleaded a release to a declaration for a legacy, upon replication and rejoinder, it appeared that the Orphans’ Court had decided that the release was valid, and a bar to exceptions by the maker to the account of the executors. It was held that the question of the validity of the release came before the Orphans’ Court, not directly but incidentally, the immediate object was not to ascertain if the release was valid. Also, like exceptions being filed by another party, the question had to be decided on the merits, and the point as to the validity of the lease was not actual^, or at least neces [516] sarily decided. Therefore, the action was not barred by the judgment of the Orphans’ Court: Hibshman v. Dulleban, 4. Watts, 183. As already remarked in the proceeding in equity, the validity of the deeds now in question was not the immediate object of the issue, and whether valid or invalid, the right of the trustee to recover was all the same. No cause was attempted to be shown before the auditor for setting aside the deeds other than the alleged former recovery. The assignments of error must be sustained. Decree reversed, at the cost of the appellees, and it is now considered and decreed that the sums appropriated to David Gearhart, Catharine Goss, Hannah M. Haberacker, and Susan Millward’s children be paid to the appellants. Record remitted for further proceeding.