#### Briggs *versus*Davis.

1. A testator willed *that the*profits arising from all Lis property should be divided amongst his children annually by his executors; that they should have power to rent and manage his real estate; if a majority of the children wished, divide the surface in shares of equal value, to be chosen by the children, etc. Also, that “ all the coal in all my lands be kept and worked as a whole for the equal benefit of all my children during their lifetime,” the children of any dying to have the parent’s share ; if any died without issue the share to “ go in equal parts to'my surviving children and their lawful surviving children. All the coal in all my lands shall be kept together, until worked out, for the use of my children, as. above stated, and not sold or divided but worked for the use of my heirs, as above stated.” *Held,*that the children took but a life estate in the profits of the coal lands.

2. The direction that the executors should manage and work the coal in the land, and divide the profits equally amongst the children during their life, created an active trust in the executors.

3. The trust was tQ last only till the death of the last survivor; there was not a perpetuity.

4. After the death of the last survivor the children of those deceased would take a fee in the coal, if any remained.

November —, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas, No. 2, of *Allegheny*County, No. 279, to October and November Term, 1875.

This was an action of covenant in which Thomas A. Briggs was plaintiff, and James Davis defendant.

On the 27th of September, 1875, a case stated was agreed on and filed. It contained the following facts, etc.;

Thomas W. Briggs died on the'15th of August, 1874, having left a will dated May 27th of the same year, and proved the 24th day of the following August.

Amongst other provisions, the will contained as follows:

“ 5. I will and direct that when all my debts are paid that all profits arising from my property, real and personal, be equally divided annually among my seven children, share and share alike, as soon as they come of age, or to the guardian of any under a,ge, by my executors.

*471“ 6. I will that my executors have full power to rent and manage, for the use of my heirs, all my real estate, and when all my debts are paid, if a majority of my children wish, the said executors may divide the surface of all my real estate in seven shares of equal value, to be chosen by the children according to age, beginning with the eldest.

“ 7. I will that all the coal in all my landp be kept and worked as a whole for the equal benefit of all my children during their lifetime, and any of my sons or daughters dying and leaving lawful children, the said child or children shall have the father’s or mother’s share of my estate. But if any of my sons or daughters should die without leaving lawful children, then their share and interest in my estate shall go in equal parts to my surviving children and their lawful surviving children. All the coal in all my lands shall be kept together until worked out for the use of my children, as above stated, and not sold or divided, but worked out for the use and benefit of my heirs; as above stated.

“ 8v I will and direct that my son, John Wesley Briggs, shall choose a lot with the other heirs. He is only to have the profits of it during his life, and at his death the right and title of the same is to go in equal parts to my surviving children and to their children; as he is only to have an equal share of the profits derived from my estate during his natural lifetime, but no title nor interest to his heir's after his death, his interest entirely ceasing after .his death.

“9. My children and heirs at this time are as follows: John Wesley Briggs, Thomas Albert Briggs, Mary Melissa Hammett, George Briggs, Eliza D. Hyatt, Ann Jenetta Briggs, Mary Jane Briggs.

“ 10. And last, I do hereby constitute and appoint my son, Thomas Albert Briggs, and my son-in-law, Charles Hammett, to be my lawful executors, with full power to carry out the provisions of this my last will.”

The same children were living at the time of his death and at the present time.

The testator died seised of a piece of ground in Baldwin township, Allegheny County, bounded by lands of Joseph Lynn and others, containing five acres, more or less. On the 1st of September, 1875, the plaintiff and defendant entered into articles of agreement, under seal, by which the plaintiff agreed to convéy to the defendant, “ by- a good and sufficient deed in fee simple ... an indefeasible title to . . . the undivided one-seventh of the bituminous or stone coal underlying ” the above-mentioned piece of ground, the defendant in consideration agreeing to pay the plaintiff the sum of *472$350, viz., $150 on the execution and delivery of the deed, and $200 in a year thereafter.

On the 22d of September the plaintiff tendered a deed to the defendant, and demanded the $150, the first payment.. The defendant refused to accept the deed and pay the money, on the ground that the plaintiff could not convey to the defendant an estate in fee simple in the land, the will of Thomas W. Briggs not having passed to him such an estate.

It was agreed, that if the Court should be of opinion that if the plaintiff’ was seised of and could convey to defendant an estate in fee in the land, judgment should be entered foi’ the plaintiff for $150, and interest, etc. If the Court should be of opinion otherwise, judgment to be entered for the de^ fendant, etc.

The Court, Ewing, P. J., September 27th, 1875, entered judgment for the defendant.

So entering, judgment was assigned for error by th.e plaintiff, on the removal of the record to the Supreme Court by writ of error.

(?. *Shir as, Jr.*

The devise of the profits is a devise of the corpus of the estate: Shriver *v.*Cobeau, 4 Watts, 130; Hellman *v.*Hellman, 4 Rawle, 444. There was no trust under the seventh clause of the will: Yarnall’s Appeal, 20 P. F. Smith, 336; Ogden’s Appeal, Id., 501. If there were, it would be inoperative as creating a perpetuity.

*J. M. Stoner,*for defendant in error.

The will imposes active duties, as to the coal property, on his executors as trustees: Sheets’s Estate, 2 P. F. Smith, 266. The trust, therefore, if otherwise valid, will be supported: Bacon’s Appeal, 7 P. F. Smith, 504; Rife *v.*Geyer, 9 Id., 396; Earp’s Appeal, 25 Id., 119. The words “ children ” and “ heirs ” are used interchangeably. The trust is limited to the lives of his seven children and the survivor. The coal lands shall be kept, until worked out, for the use of his children ; not sold or divided; but worked for the use and benefit of .his heirs.

Judgment was entered in the Supreme Court, November, 1875.

Per Curiam :

Under the will of Thomas W. Briggs, his son, Thomas A. Briggs, took only a life estate in the profits of the coal land. The executors were made trustees to manage and work the coal in the land during the lifetime of his children, and to divide the profits among them, equally. *473This was an active trust. If any of the children died, leaving lawful children, they should have the father’s and mother’s share, but if any of the children died without lawful children, their shares should go in equal parts to the survivors and the children of the deceased children. This was not a perpetuity, because the trust was to last only until the death of the last survivor. The children of those deceased could then take the fee, if any coal remained.

Judgment affirmed.