
    Rankin’s Appeal. [Swift v. Rankin et al.]
    A testatrix, in her will, made a devise of a tract of land to her daughter, Louisa, excepting and reserving all the coal under the same with mining privileges. She then devised the remainder of her estate to her daughters Louisa and Emily. The latter married and died leaving a child who also died. Emily’s husband, Swift, became life tenant, and he and Louisa divided the coal between them, by proceedings .in partition. A part of the coal allotted to Swift lay under the tract specifically devised to Louisa. In this tract was a pit mouth, from which coal had been mined in the lifetime of the testatrix and of Emily, and on the surface was a well beaten road over which the coal had been transported. After the partition, Swift attempted to continue the mining of coal from the pit-mouth, but was restrained by Lóuisa and her agents. He then filed a bill in equity to restrain them from interfering with his operations. Held:
    
    1. That the case was one proper for equitable relief, without first estaba lishing the plaintitf’s rights at law, as the material facts out of which plaintiff’s rights arise are admitted.
    2. That the reservation of mining jyrivileges entitled Swift to the use of the pit-mouth for mining his coal, and the road for transporting it, although he had no interest in the surface. 1
    3. That,'as life tenant, Swift had a right to use the mine already opened, to the exhaustion, of the coal, it seems. • -
    Oct. 22, 18.88.
    Appeal, No. 51, Oct. T. 1888, from O. P. No. 2, ‘Allegheny Co., to review a. decree in favor of the complainant on a bill in equity by Edward P. Swift against Dr. J. S. Rankin, Louisa Rankin,his wife, and Charles P. Rankin to'restrain the defendants from interfering with the plaintiff in mining coal from a pit mouth described in the bill, at Oct. T. 1886, No. 566. Clark, J., absent."
    The bill averred facts substantially as stated in the report of the master, J ames O. Doty, Esq. The prayers were1, an injunction ; 2, an account and-a decree for the payment of damages; and, 3, general relief. The answer admitted the facts substantially as averred, but denied the inferences or conclusions of law as stated. Issue was joined by replication.
    The master reported as follows: “ 1. Margaret Griffin died in April, 1872, seized in-fee simple of a certain tract of land, with coal therein, situate in the township of Lower St. Clair, Allegheny county, having, by her will, devised to her daughter, the defendant, Louisa Rankin, wife of the-defendant, Dr. J. S. Rankin, for her life;, with remainder to her children, should she leave any, a part of said land, excepting and reserving from the devise all the bituminous and stone-coal under the same, with mining privileges, and having by the same will devised the residue of her estate, which included the coal and mining privileges' excepted and-' reserved as aforesaid, to her daughters Emily Giffin and the said Louisa Rankin in fee simple, subject to certain charges since fully paid,-and certain powers., of sale given her executors.
    
      “ 2. The said Emily Giffin intermarried'with Edward P. Swift, the plaintiff, and died August 13,1873, intestate, having had by. said plaintiff one child, her only issue, who died soon after his mother, in infancy. ' 7 , '
    , “3. Afterward,' by proceedings duly'had in' the CrpKans’ Court of said county, at No. 1, June Term, 1879, in partition, for partition of the residue unsold of the real estate of the said Margaret Giffin, deceased, so devised as aforesaid to the said Emily and Louisa, the said residue unsold was divided into two purparts, designated respectively ‘A’ and ‘B’, and the purpart designated ‘A’, embracing, inter alia, 30 acres and 106.86 perches of said coal under the land devised as aforesaid to the said Louisa Nankin for life, as shown by a plot or draft attached to the alias inquisition taken in such proceedings, was allotted and delivered to said plaintiff in severalty for his life; and the partition so made was duly confirmed by the said Orphans’ Court.
    “1. In the coal so allotted and delivered to plaintiff as aforesaid, and underlying the land so devised as aforesaid to the said Louisa'Nankin for life, a mine, with an entry or pit-mouth on the land so devised to her, was open and was worked by the said Margaret Giffin, or by her license, for many years before and until her death, and by her devisees, the said Emily and Louisa, or by their sufferance or license, in the lifetime of the said Emily; and during all the time aforesaid the coal mined therein was hauled from the said entry or pit-moutli to the public road through and over the land so' devised as aforesaid to the said Louisa Nankin for life.
    “ 5. The said pit-mouth is located on the land so devised to the said Louisa Nankin for life, with remainder to her children, as aforesaid, and neither on the surface over purpart ‘ A ’ or purpart ' B ’, but about sixty feet from the line of purpart ‘A ’, as shown by the said draft in said partition proceedings.
    
      “ 6. Plaintiff recently began and proceeded, by his servants, in a careful and workmanlike mannei’, to mine his said coal in his said mine, and to haul the same when mined from the said pit-mouthy by a way long ago, and in the lifetime of the said Margaret Giffin, used for' said purpose; but the defendant, Charles P. Nankin, by force and threats stopped plaintiff’s workmen from mining and hauling the coal as aforesaid, and still keeps them from their work aforesaid, and threatened and attempted, and still threatens, to blowup and destroy the said entry to said mine.
    “ 7. Charles P. Nankin is the lessee of the said Louisa Nankin, his mother, and is engaged in working her coal mine, and, in interfering with the plaintiff and his servants, as aforesaid, in the use of the pit-mouth, he claimed to be protecting and defending his rights as such lessee, and the defendants all still maintain their right to prevent plaintiff and his workmen from using the pit-mouth for mining or hauling away the coal allotted to. him in the partition proceedings.
    (,8. By deed dated July 10, 1871, the said Margaret Giffin granted, inter alia, to Joseph Keeling a right of way through the coal under the land, a part of which was devised to Louisa Nankin, for life, to be used as a lateral railroad. The tunnel and lateral railroad were made and built by Keeling through said coal; and thus the coal could have been mined and taken to market.
    “ 9. ■ Margaret Giffin, by her will, authorized and empowered her executors, as soon after her decease as it could be done to advantage, to sell, at public or private sale, as they might deem best for the interest of her estate, all her goods and estate, real, personal, or mixed, wherever found, not theretofore disposed of, including the coal (except three acres reserved) under the tract of land of which she died seized, and a portion of which was devised as aforesaid.
    “ 10. The executors, as such, exercised some supervision and control of the coal, paid taxes thereon, and sold a portion thereof; but they were not in the actual occupancy or possession of the property, and under the will they had no beneficial interest therein, but a simple power of sale.
    “11. By articles of agreement, dated August 20, 1874, the said executors of Margaret Giffin, deceased, granted to Joseph Keeling & Co. the right and privilege to drive an entry or drain for the purpose of drainage through the coal unsold belonging to the estate of the said Margaret Giffin, deceased.
    “ 12. On June 29, 1877, plaintiff commenced a proceeding in the Orphans’ Court of said county, at No. 163 June Term, 1877, to compel the executors of Margaret Giffin, deceased, to sell the balance of the coal then unsold, but his application was finally refused upon the ground that there was no absolute direction in the will of said decedent to sell the l’ealty.
    “ The first question is as to the jurisdiction. Has a court of equity jurisdiction of a case like this ?
    “ the plaintiff, in his bill, claims the right to mine coal in a certain mine, and to haul the same when mined from a pit-mouth and by a way alleged to have been long used for that purpose. He sets forth particularly the facts upon which he relies to support his right. He then avers that, in partial exercise of his rights in the premises, he began and proceeded, by his servants, in a careful and workmanlike manner, to mine his coal in the said mine, and to haul the same when mined from the said pit-mouth, by said way; but that the defendant, Charles P. Rankin, acting in confederacy with the other defendants, and with others to him unknown, assaulted his workmen when so mining and hauling his coal, and by force and threats stopped them from work, and still keeps them from their work, and threatened and attempted and still threatens to blow up and destroy the entry to said mine; by which wrongful acts and threats he has suffered great injury, and, if they be not restrained, will suffer great and irreparable loss and injury.
    “ This would seem to be a very proper case for equitable relief unless the objection that plaintiff’s rights must first be established at law is well taken. Cases are very numerous to the effect that the right of complainant ought to be admitted or established at law before granting an injunction. But if the right of the plaintiff be clear, it need not first be established by a suit at law. Appeal of Iíacke and Iíugus, 101 Pa. 245. In one sense, the rights of the plaintiff are here denied. But the material facts out of which his rights arise are admitted. If there is a doubt as to his rights, it is one of law, not of fact. On a question of mere law the courts are bound to have an opinion, whatever may be the difficulty of making it up. Brightly’s Eq. Jur. § 303. A trial at law necessarily implies that there are some facts disputed and to be tried. In this case, all the material facts are admitted; there could be nothing for a jury to do, even if it were an action at law; the question would be legal, and for the determination of the court. The court, therefore, has jurisdiction of the cause, in the opinion of the master.
    “ The question to be determined upon the merits is, has the plaintiff the right to enter upon the premises of defendants for the purpose of mining the coal allotted to him in the proceedings in partition ? Has he a right to mine the coal, and, if so, can he use the pit-mouth in so doing ?
    “ The plaintiff has a life estate in the coal. It is claimed that Mrs. Swift never was in possession, that the executors under the will of Margaret Giffin had control of the coal until after Mrs. Swift died, and that plaintiff, therefore, is not tenant by the curtesy. But the land was not devised to the executors. They had no estate or beneficial interest in it. They had simply a power of sale, if they thought best. They paid the taxes, and sold some of the coal, but the ownership was in Mrs. Swift and Mrs. Nankin as tenants in common, and the executors had no such possession as would defeat plaintiff’s claim as tenant by the curtesy. It is not necessary to entitle a husband to claim by the curtesy, that there should have been what Is considered in England an actual seisin of the wife or husband during the coverture. Chew v. Commissioners of Southwark, 5 Rawle, 160 ; Buchanan v. Duncan, 40 Pa. 82. But if there is any doubt as to the tenancy by the curtesy, plaintiff is life tenant of his deceased child. Besides, Mrs. Nankin and her husband were parties to the partition proceedings, and should have raised the question then, if they denied that plaintiff was life tenant.
    “ But another objection is made to plaintiff’s claim. The pit-mouth is located on land devised by Margaret Giffin to Louisa Nankin for her life, with remainder to her children. But all the coal under the land so devised, ‘with mining privileges,’ was excepted and reserved. The residuary clause of Margaret Giffin’s will gave to her daughters Emily and Louisa all that remained of her estate after paying certain legacies, expressly including the coal under the farm, a portion of which was devised as above stated. There was no reference in the will to ‘ mining privileges ’ save in the clause containing the exception and reservation mentioned above. Margaret Giffin in her lifetime granted a right of way for a tunnel through the coal under the land to Keeling, said tunnel to be used as a lateral railway, and Keeling had made the tunnel, and thus the coal could be mined and taken to market through the tunnel. Defendants contend that the ‘ mining priveleges ’ referred to in the will, and which were excepted and reserved, in the devise to Louisa Nankin and her children, had reference solely to this righ of way previously granted to Keeling, and did not include the pit-mouth or entry, or any other use of the surface for the purpose of mining coal. But, it seems to the master, this would be a very narrow construction. The terms would embrace much more. The surface and the coal were made separate estates by the will. The coal would be unavailable without mining privileges. The testatrix must have intended to reserve all mining rights and privileges, and that these should be enjoyed and possessed by the owners of the coal. The use of the surface, then, so far as necessary for 'mining Surposes, and the use of the pit-mouth, passed to Mrs. Swift and Irs. Nankin by the will of their mother.
    “ Again, it is said that plaintiff acquired no right to use the pit-mouth for mining purposes under the proceedings in partition. No reference is made to any mining privileges, or to the pit-mouth in the proceedings. This was perhaps either an oversight or it was deemed unnecessary. Nor is the pit-mouth within the lines of either purpart ‘A’ or purpart ‘B’. But the mouth of the pit is about sixty feet from purpart ‘A’, which was allotted to plaintiff. It was the manifest intention to divide all tlie good merchantable coal. The line stops where such coal ends. The outcrop extends a little distance beyond to the pit-mouth. The merchantable coal is separated into two purparts of equal size and value. In the judgment of the master, the mining privileges, including the use of the pit-mouth, passed as appurtenant or incident to the coal without express words. It is a well settled rule that, when anything is granted, all the means to obtain it are granted also, and all shall pass inclusive, together with the thing, by the grant of the thing itself. Nay’s Maxims, 198; Ilowell v. McCoy, 3 Nawle, 256. An analogous rule would apply in this case. But, if not, then the mining .privileges, and the use of the pit-mouth as a part thereof, still remain undivided, and the plaintiff has the right to them as tenant in common.
    “ But defendants say that plaintiff has no right to mine the coal allotted to him for life, because he is not life tenant of the surface. It. is conceded that where the wife dies in possession of lands with open mines on it, and her husband comes into possession of the. estate immediately on her death, he may continue to work the mines, because the law looks upon the open mines as yielding a product for the estate, as theretofore, and as estovers, in connection with the estate, for .its support and maintenance. But it is contended that, where the open mines do not underlie the estate of the life tenant, and there is no estate to support estovers, that then no estovers can be claimed.
    “The defendants in their answer do not aver that they areremaindermen.. Probably Mrs. Nankin had an estate in remainder, and the defendants are acting in the interest of those in remainder. But the issue is not directly as to the right of the tenant for life to mine the coal as against the remaindermen. However, the argument of counsel is largely upon that question, and, whether properly raised or not, the master will consider the case in that aspect.
    
      “ The mine was open and worked when the life estate commenced, and the pit had long been used for mining purposes. The attempt here is to prevent the life tenant from mining any part of the coal. The question is not whether those in remainder might not, in a proper action, restrain him from working more than what might be deemed his just proportion, or make him account for part of the profits, if he did so. In Irwin v. Covode, 24 Pa. 162, it is suggested that probably such relief might be afforded.
    “ The rule is well settled, that a tenant for life, when not pre7 eluded by restraining words, may not only work open mines, but may work them to exhaustion. Shoemaker’s Appeal, 106 Pa. 392; Westmoreland Coal Co.’s Appeal, 85 Pa. 344; Kier v. Peterson, 41 Pa. 357; Neel v. Neel, 19 Pa. 323; Irwin v. Covode, 24 Id. 162. And it is settled, law, that the rents of an opened mine are income, and go. to the tenant for life. Cases cited above, and see Wentz’s Appeal, 106 Pa. 301; McClintock v. Dana, lb. 386. The latter two cases also rule that, when land is chiefly valuable for coal mining purposes, although the mines are,unopened, the power to lease the real estate includes the power to lease the coal lying under the surface. A life tenant of land, whereof the timber is the intended source of profit, may cut it for profit. Willard v. Willard, 56 Pa. 119. Where the mines are severed from the surface, the ordinary rules respecting waste have no application. Bainbridg.e on Mines, 53. .
    In Neel v. Neel, supra, it is said: ‘ As to all tenants for life, the rule has always been that the working of open mines of, all sorts is not waste. The tenant for life has the usufruct of the whole land, and takes the wdiole profit that can be derived from it in following out the use made of it by the donor...... And the tenant for life is not at all limited by the extent of the use made of the property by the author of the gift. . . ... It is sufficient that he opened them (the pits) and derived any profit from them, even if it were only fire bote. The fact of his opening the pits made the coal a part of the profits of the land, and the right to them will pass as such by a devise of a life estate. If he meant otherwise, he should have said so; not having said so, this is the legal inference of his. intention. . . . And the tenant for life may work them, even though the working of them may have been discountenanced before the death of him through whom the estate comes.’ In Irwin v. Covode, supra, the court say: ‘As yet the legislature have prescribed no limitation to the use which a tenant for life may make of open mines. In virtue of their common law powers, the court might doubtless restrain unskillful mining and wanton injury to the inheritance, but not such proper mining as is subject to no other objection than its liability to exhaust the mine. The profits of coal mines depend much on expensive preparations for working them, and, in order to compensate this necessary investment, as well as to compete successfully with rival operations, a large amount of coal must be mined and sold. To deny a tenant for life the right to mine largely, would be to deny him the right to mine profitably— to shut him up to mining for his own fire merely. . . . Nor are such improvements necessarily injurious to the remainderman, for the estate is liable to fall in at any moment, and when it comes to him he takes it with all that has been added to develop and improve it.’ Should the tenant for life exhaust lands so held, and leave them mined on the hands of those in succession, ‘ it would be no more than occurs in every life estate in chattels which perish with the using. So long as the estate is used according to its nature — in formam doni — it is no valid objection that the use is consumption of it; and it is no fault of the tenant that it is not more durable.’ A life estate in personal property, to which reference is made, is in many respects analogous to the usufruct of m.oyables under the civil law, the person entitled to such use having the right to enjoy and use all the movable effects, according to their nature; things to be consumed become his property; things not to be consumed, may be put to the use for which they were designed, without abusing them, and, after the time for such use had elapsed, to be yielded in the condition they happened to be after the usufruct has expired. Holman’s Appeal, 24 Pa. 174.
    “ The above quotations are not made to- support the general principle, which is so well settled, but in order that the reasoning of the court upon the subject may be seen, and because much of the language used might be applied to the present case. They answer many objections urged against the life-tenant’s right to mine coal.
    “ In considering the question, respect must be had to the nature of the property. The whole value is in the coal. It was the intended source of profit. The estate descended to the life-tenant as an open mine. If he cannot work it, it is of no use to him. It came to him from his wife without any restriction or limitation. Mrs. Swift was the owner of the coal in fee. She might have disposed- of it by will as she chose. She might have limited plaintiff’s rights as she saw fit. Put when she did not see proper to restrain the gift, why should it be done? Not having done so, the obvious inference is that she intended him to take what the law gave to a life-tenant of open mines. She must have expected him to derive some profit from the mine. "Who can say that those in remainder were any more the objects of decedent’s bounty than the life-tenant? In the absence of any expression by her, or of a restriction upon her gift to him, it must be presumed that she meant him to enjoy the profits of the open mine while he lived.
    “ Every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land, for fuel, fences, agricultural erections, and other necessary improvements. 4 Kent, 73. So he is entitled, through his lawful representatives, to emblements, or the profits of the growing crops, in case the estate determines by his death, before the produce can be gathered. From their nature, we cannot conceive of estovers or emblements without land to support them. So, also, in all the cases that have been discovered by tbe master where it was decided that the tenant for life might work open mines, he has also been life-tenant of the surface as well as the coal. It is argued, therefore, that a tenant for life cannot work open mines unless he is also tenant of the surface. But why should it make any difference. He takes the coal not as estovers. He takes the mine for life, to use it, according to its nature, as a source of profit. The cases do not limit the amount of coal he may mine. He may mine to exhaustion. His right to mine is not affected by the comparative value of the coal and the surface. In Willard v. Willard, supra, where the timber was the chief value, he was allowed to cut the timber. When the testatrix severs the surface from the coal, and gives a life estate to one, that would evidence an intention that he should derive some benefit from it. That is practically this case. There does not seem to be any substantial reason for not applying the general principle with regard to the right of life-tenants to work open mines. The objection as to the injury to the remaindermen by allowing life-tenants to work open mines, has been answered repeatedly. In some instances those in remainder might be gainers, for the life-estate may determine after expensive preparations for mining have been made, and before any coal has been taken out. If it is hard on them in some cases, it does them no injustice ; and, if a contrary rule was applied, it would be very hard on the tenant for life.”
    The master then considered the claims for damages made by the plaintiff, holding that they were so uncertain that they could not be ascertained. The master finally recommended a decree restraining defendants from interfering with plaintiff in his mining operations, as follows:
    “ The master is, therefore, of opinion, upon the whole case, that the plaintiff is entitled to a decree restraining the defendants from interfering with him, and his workmen, in using the pit for the purpose of mining and hauling away his coal, with costs, but not for the payment of any damages- sustained by him.”
    The defendants filed exceptions, which were dismissed by the court, and a decree was entered in accordance with the recommendation of the master.
    
      The assignments of error specified the action of the court, 1, in not dismissing the plaintiff’s bill; 2, in entering a decree in favor of plaintiff; 3, in entering a decree as to Hr. J. S. Nankin and Louisa Nankin; and, 4, in not dismissing plaintiff’s bill for want of jurisdiction.
    
      J. M. Shields, with him Bruce & Negley, for appellants.
    If there had been an old open pit into the three acres, the appellee, as life tenant of the land and the coal, might have had the right to mine that coal as an estover. But he cannot claim the right to mine the coal under the land of Mrs. Nankin, by reason of the old entry or pit-mouth in her land. As life-tenant he can only claim the right to mine the coal as an estover by virtue of an open mine into the coal,, and not by tbe reservation in tbe devise of Mrs. Giffin, of tbe mining rights in the surface devised to ,Mrs. Rankin. 1 Coke, on Litt. 41 b.; Challis on Real Property, pages 53, 253: PI. Com., Yol. I, book II, p. 122. \ t
    t .This right by the common law was confined to the profits, of the land of which he was tenant, and in this respect the. law has never been .changed in Pennsylvania. • ■
    All the cases to the contrary referred to by the learned master, are either leases by agreement, or governed by the terms of special devises in wills, as in the cases h.e. cites. Wentz’s Ap., 106 Pa. 301, and McClintock v. Dean, 106 Pa. 386.
    In Bainbridge on Mines, page 41, it is said that a person may have a distinct right of possession in mines as part of his tenement without being entitled to exert any act of ownership over them. See, also, Westmoreland Coal Co.’s Ap., 86 Pa. 344.
    . If the coal in this case, is realty or land, as the supreme court has decided it to be, then the life-tenant cannot destroy or consume or sell-it. It is not an estover, but realty. Neel v. Neel, 19 Pa. 327.
    In the case at bar, the remaindermen will not have any estate after the death of the life-tenant, because the life-tenant claims the right to use and consume the whole estate as an estover, being a tenant .of estovers and not of an estate in lands.
    In Swift’s Ap., 87 Pa. 503, this plaintiff endeavored to compel the executors to sell this coal and certain lots of ground, as personal property, contending that .there had been a conversion from realty to personalty, under Mrs. Giffin’s will.' But -the court held otherwise. In the Appeal of Louisa Rankin,.95 Pa. 367, the supreme court held that Swift, the plaintiff, had no right to bid at the partition of this same property. ' . .
    
      John G. Bryant, for appellee.
    Swift is life-tenant of .an open miné, “ with mining privileges” annexed, severed in estate from the surface, and worked by the testatrix before severance, and by her devisees in fee since. His rights therein, as against the remainder-men, must be considered without regard to the rights of the surface owners. ■ '
    The tenant for life has the‘usufruct of the subject of the tenancy, and may take the whole profit that can be derived from it, following out the use made of it by the donor. Neel v. Neel, 19 Pa. 323. So long as it is used according to its nature, it is no objection that the use is consumption of it. Irwin v. Covode, 24 Pa. 162. The Act of April 10,1848, provides that he shall not “ be restrained from the reasonable and necessary use and enjoyment of the lands and premises.”
    He may work open mines to exhaustion. Neel v. Neel, 19 Pa. 323; Irwin v. Covode, 24 Pa. 162; .Westmoreland Coal Co.’s Ap., 85 Pa. 344; Shoemaker’s Ap., 106 Pa. 392.
    ■ ' 'Tf a man hath mines hid within his land, and lease the land and all‘mines therein, the lessee may dig for them. Saunders’s Case, '5'Coke, 12.
    
      If the land and mines under it are described as the subjects of the lease, and there be no open mine, the lessee may open and work it. Washburn on Real Prop., 1, p. 314; Clegg v. Rowland, L. R., 2 Eq. 160.
    A life-tenant of land whereof the timber is the intened source of profit, may cut it for profit. Williard v. Williard, 56 Pa. 119.
    A lease for years of land, to hold “ with every privilege, right, member and appurtenance whatsoever to the same premises belonging, whether ways, . . . mines and minerals of whatsoever description,” gives a right to open- new mines. Griffin v. Fellows, 81* Pa. 114.
    A power to lease land “for coal mining purposes,” was held to authorize a lease for royalty of the coal therein, and the royalty to be income. Shoemaker’s Ap., 106 Pa. 392:
    And a power to lease land valuable only for the minerals, in which no mines had been opened, was held to authorize a lease for royalty of the mineral alone, and the royalty to be income. Wentz’s Ap., 106 Pa. 301; McClintock v. Dana, 106 Pa. 386.
    The life tenant’s right to mine in such cases is not incident to his tenancy of the surface. It is not a right to take estovers merely, but is a right to take for profit. The veins in question in the cases of Irwin v. Covode, supra, and Westmoreland Coal Co.’s Ap., supra, were severed from the surface by the sales by the life-tenant to the Coal Co., and yet the right to mine was not destroyed. ' And the minerals in question in Wertz’s Ap., supra, and McClintock v. Dana, supra, were severed by leases thereof made under powers-to lease or sell the land. •' •
    Nov. 5, 1888.
   Per Curiam,

We are so well satisfied with the report of the learned master, in this case, that we deem further comment unnecessary. ' .

Decree affirmed and appeal dismissed at costs of appellants.  