Estate of Markle

Opinion by Mr. Justice Green, It must certainly be conceded that the testator, George B. Markle, Sr., had an absolute and undoubted right to direct the management and disposition of his estate according to the discretion of his son, John Markle. He knew perfectly well the uncertainties and vicissitudes of the coal mining business, the difficulties, the hazards and risks, the extreme alternations of gain and loss which constantly attended its prosecution, and above all he knew the complete, entire dependence, for its successful conduct, upon the skill, the foresight, the sound judgment of the person controlling its operations. Being keenly alive to all these considerations, and knowing by personal experience the qualifications of his son for managing such a business, he clothed him with unusual and extraordinary powers in this respect, subjecting all transactions to the government of his discretion, and binding his executors and trustees by the same limitations. In ordering the business to be carried on after his death he directed that it should be done, “ in the discretion of my son John Markle (who is familiar with the said business), so long as he shall deem it for the best interests of my estate,” and he then directed him “ to do every and all things in the name of the executors and trustees of this my will which by the terms of the present copartnership of George B. Markle & Go. I might or ought to have done until the termination of the said articles of copartnership of George B. Markle & Co., and the lease of the coal property in Luzerne county now operated by George B. Markle & Co.” That is to say, that John Markle, his son, should do all acts and things necessary to be done both in the copartnership business, and in the matter of the lease, and he should do these things in the name of the executors and trustees. The same directions were given as to renewing the lease at its expiration, and the articles of co-partnership. These things were to be done by the executors [389] and trustees, but, “ acting under tbe advice and in the discretion of my son John Markle.” He also authorized and empowered his executors and trustees, “ acting under the advice and in the discretion of my son John Markle to make any new contract or partnership to be known as George B. Markle & Co., for the purpose of mining and shipping coal in Luzerne county, with any person or persons, whom my said executors and trustees, acting under the advice and discretion of my son John Markle, shall see fit,” and then authorizing the executors and trustees to bind his estate for any covenants and conditions they may see fit to make, he adds “ leaving the sole discretion in case of disagreement between my said executors and trustees as to what is for the best interests of my estate in the formation of said copartnership unto my son John Markle.” He then directs that if his son John Markle shall, at the termination of the present leases and copartnership, deem it best to buy out the interest of the other copartners and co-lessees, and take new leases, the executors and trustees shall furnish the money necessary thereto, “ for such price as my son John Markle deems proper and fair,” and to carry on the business in the same firm name, John Markle to be the superintendent and carry on the business, and, “ make all necessary contracts necessary for the proper and best means of mining and shipping coal and the necessary leases of such coal lands.” He further directs that if any new agreement is made for carrying on the business his son John shall be the acting trustee, .and shall have power to bind tbe estate for such contracts and engagements as are necessary for the business. He also provides, “if my said executors and trustees shall decide, acting under the advice of my son John Markle, to carry on the business of mining and shipping, either with others or by themselves, of coal in Luzerne county, then it is my will that my said executors and trustees shall transfer, out of my interest or that of my estate in the new business or undertaking, unto each of my sons, George B. Markle Jr., John Markle and Alvan Maride, two sixteenths each, of the whole value of the lease and improvements on said property to be mined, and such transfer to be made at such time as the new undertaking shall be commenced, which said bequests shall be considered as part payment of their share of the principal of my estate, and so charged against them at the val [390] uation fixed.” Then follows the direction that in the event of a dissolution of the business all the testator’s interest in the partnership and in the improvements and machinery shall be sold “ for such price and in such manner as my son John Marble shall deem most advisable and best.” This is followed by a release of his executors and trustees from all liability by reason of their following the advice of John Marble, and the further release of John Marble in these words, “And I also release my said son from all liability for loss occasioned to my estate, occasioned by his deciding what is for the best interests of my estate in the mining of coal or other matter whatever.” It is almost impossible to conceive of a more full and plenary grant of control and power over a deceased person’s estate than is contained in this will. Everything to be done was to be subject to the absolute and unfettered discretion of John Marble, and he was entirely released from all liability for any decision he might mabe. But ample and complete as these powers were, when a contingency arose which required legal advice and assistance, it was quicbly sought and rigidly followed. What was subsequently done in the way of meeting and disposing of the questions which arose, was done under and in pursuance of the advice and direction of most eminent counsel, distinguished alibe for his learning and ability as a lawyer, and for his lofty integrity and uprightness as a man. The questions to be met in the emergency when his assistance was sought were of the gravest importance and of the most delicate character. They were carefully studied and considered, and written opiniofis were furnished by him as to what he considered were the rights and duties of the parties, and the necessary course to be pursued. He advised that the whole matter should be proceeded with, under the order and direction of the orphans’ court, which was done, and a solemn decree of that court was made directing the sale of the interest of George B. Marble* deceased, in the late firm of George B. Marble & Co., to wit, two sixteenths of said interest to each of the three sons of the deceased and one sixteenth to the two daughters, and that the amounts payable to each of the sons should be charged against their respective shares of the estate, and the amount due by the daughters should be paid in cash. Several objections are made on appeal to the proceedings and decrees made by the orphans’ court in 1890. [391] They are discussed at considerable length in the paper-book of the appellants. We have carefully studied and considered them all in the light of the testimony taken in the court below, and of the various propositions and arguments made in their support. As a matter of course if it had not been for the extraordinary grant of discretion and power to John Markle, for the special directions of the will regarding the entering into a new partnership, the termination of the old one and the termination of the leases and the making of new leases, and for the provision directing the transfer of two sixteenths of the testator’s interest to each of his sons, and for the provision authorizing the sale of the testator’s interest in the old firm and leases, and in the property of the old firm, there would have been the greatest force in the propositions and arguments advanced by the able counsel for the appellants. But in all these particulars the case is widely and radically different from the ordinary cases of this nature, and the authorities cited fail of application to the facts, the circumstances and the questions appearing on this record. As to the charge of fraud against J ohn Markle it is absolutely unsustained by any testimony in the cause, and we cannot give it a moment’s sanction. As to the sale of the testator’s interest, it was not only done by the advice of counsel, but under the decree of the orphans’ court, with all the facts spread before them, and we are thoroughly convinced that it was wisely and properly done. A sale to strangers at a public auction would have been most unwise upon every consideration, and it would have been most unjust to the parties in interest. A sale to all the children of the testator assured to them all the benefits that could possibly arise from the transaction, and was in no sense injurious to those entitled in remainder. The impracticability of renewing the lease as it was before, on account of the objections of the lessors and the utter impossibility of the trustees undertaking to build the tunnel to drain the Ebervale mine, rendered the formation of a new firm a most urgent necessity. That the children of the testator, being the chief beneficiaries of his will, should have the right to purchase the interest of their father in the old leases and in the firm property, is a self-evident proposition. The property of the firm was appraised conscientiously and fairly by disinterested appraisers, and it cannot for a moment be believed that any larger price could [392] possibly bare been obtained at a public sale. In considering the contention of the appellants upon this subject, it is only necessary to think for a moment of what would have been the result if the opposite course, now suggested, had been adopted. An entire loss of the profits made by the new firm, of which the parents of the appellants were members, an entire loss to the estate of the testator of the interest he formerly possessed in the leases, the business and property of the firm, and only the advantage of a small price, would in all probability have been all that could have been gained by a public sale. We do not consider that the sale made to the children, just as it was, was injurious to the appellants, or that it was in any point of view void for want of legal authority, and we are clearly of opinion that it was within the power of the orphans’ court to make the decree, precisely as it was made, for the sale of the testator’s interest. The opinion of the learned court below is so full and complete, and sets forth the reasons for sustaining the decree of 1890 with such a force of argument and in such clear and convincing language that we deem it unnecessary to engage in a detailed discussion of the several propositions and contentions advanced for the appellants. Save in a single matter we concur with the opinion in its rulings and conclusions. We do not think that a continuing lien could be imposed upon the share decreed to George B. Markle so as to bind the purchaser from him of that share and require her to pay the whole of the purchase money in cash. That question does not arise upon the present appeal, and it is only mentioned as a qualification of our affirmance. So far as the present appellants are concerned, the decree of the court below is affirmed, and the appeal dismissed at the cost of the appellants.