Appeal of Winton

Mr. Justice Sterrett delivered the opinion of the Court, February 23d, 1886. The subject of complaint in the last specification of error is the refusal of the court below to allow-appellants’ claim for 1150,000 damages and interest thereon. This substantially involves other questions intended to be raised by the preceding specifications ; but, inasmuch as the claim was rejected mainly on the ground that it is not within the limited jurisdiction of the Orphans’ Court, it becomes unnecessary to consider any of the subordinate questions, unless the court erred in deciding the paramount questions of jurisdiction against apjDellants. That question has been so fully considered and so satisfactorily disposed of by the learned auditing judge, that it is unnecessary to add anything to what may be found in his able and exhaustive opinion. The claim of appellants is grounded on an alleged breach in the following clause in the lease of John Gibson to John P. Offerman, dated August 13th, 1858 : ■ “ Should the party of the first part grant any other lease to mine coal on any of the said lands, or his other lands on the west side of the Lackawanna river, which lease shall not interfere with the mines that may be opened by the party of the second part, the party of the second part shall have the first refusal of any such lease or leases.” In 1862, Offerman assigned the lease, with all the rights he had by virtue of the same, to W. W. Winton, George Cone, J. M. Chittenden and Samuel Chittenden. To this transfer, John Gibson, the lessor, gave his assent in writing, recognizing the transferees as lessees, and stipulating that at the expiration of the lease.they shall “givefull and quiet possession of all the premises hereby leased in as good order and condition as they now are, natural wear and tear or casualties that may accrue by fire or otherwise excepted.” In this somewhat qualified assent there is nothing said as to the right of renewal, extension or privilege of refusal; but, as to these, it was doubtless intended they should have all the rights that Offerman had under the original lease. In 1864, Winton and the Chittendens, surviving partners of Winton, Cone & Co., and the administrators of George Cone, then deceased, transferred the same lease to John Jermyn by an instrument containing the following clause: “ It is understood that the parties of the first part do not part with any prior rights of leasing mentioned in the Gibson lease.” In March, 1865, John Gibson the original lessor died testate, [403] and in 1867, Henry C. Gibson and James I. Young, the surviving devisees in trust of the residuary estate of said testator, and also executors of his will, executed a lease to John Jermyn without having first made a tender of it to appellants, who with George Cone, theretofore deceased, were the transferees of Offerman with the assent of the lessor. Appellants, alleging that the lease to Jermyn was a breach of the clause first above quoted, presented their claim for damages against the estate of John Gibson and insisted on their rights to participate in the fund for distribution in the Orphans’ Court. The court, as we think, very properly held that they had no jurisdiction of the claim, and for that as well as other valid reasons rejected it. It cannot be pretended that the testator, John Gibson, violated any agreement he had made with appellants or their assignor. He died nearly two years before the alleged breach occurred. In no proper sense of the word, are appellants creditors of his estate, nor are they in any manner interested in the distribution thereof. It is only those who claim through the decedent, as creditors, legatees, or next of kin, that have any standing in a proceeding for distribution in the Orphans’ Court: McBride’s Appeal, 72 Pa. St., 480; Braman’s Appeal, 89 Id., 78. The want of jurisdiction in the Orphans’ Court is therefore a conclusive answer to appellants’ claim ; but, waiving that, and conceding the liability of a decedent’s estate for such an act of his personal representatives as is here complained of, was there any breach of the clause in question so far as appellants are concerned? We think not. The right of refusal was clearly an inseparable incident of the lease, — a personal right that could be exercised only by the lessee himself as tenant of the devised premises, or by those to whom he assigned the lease with the assent of his lessor; and not a right which the lessee or his assignees could exercise independently of .the lease and after he or they had parted therewith. Assuming that appellants and Cone, their co-assignee, acquired the right of refusal by virtue of the assignment of the lease to them, they could exercise it only while they owned the lease of which it was necessarily an incident. When they assigned the lease to Jermyn they lost the right of refusal. As we have seen the covenant to give first refusal of any subsequent lease was personal, first to the lessee and after-wards to his assignees, who were accepted by the lessor, and thus, to all intents and purposes, became lessees in fact. The lessor never bound himself to give such refusal to the heirs or assigns of the four assignees, nor to the survivors or survivor of them. He may have been quite willing to offer such sub [404] •sequent lease to the four assignees, but not to either three of them: but, however that may have been, it is enough to know that the first refusal was personal to the original lessee, and afterwards to his four assignees, who with the assent of the landlord took his place in. the lease. The three surviving assignees of the lease had, therefore, no right to demand that any subsequent lease should be first tendered to them. Again, as to the question of damages, aside from everything else, the testimony was insufficient to warrant the court in finding in favor of appellants. The prospective lease, of which they claimed the right of refusal, was without terms. What it should embrace, when it should be given, if at all, and on what terms, were wholly in the discretion of the lessor. In no event, therefore, could the damages exceed the value of the lease to Jermyn at the time it was made. There is nothing in the testimony that would have warranted the court in finding it was worth more than the consideration which Jernmr gave or agreed to give for it. Other reasons might be suggested in support of the decree, but they will be found in the opinion of the court below. Decree affirmed and appeal dismissed at the costs of appellants.