<p>Appeal, No. 180, April T., 1915, by defendant, from judgment of C. P. Lawrence Co., March T., 1912, No. 22, on verdict for plaintiffs in case of Mamie S. Patterson, Edna Batteiger and Daisy Batteiger v. Mary J. Shaffer.</p> <p>Assumpsit to recover share of royalties. Before Porter, P. J.</p> <p>At the trial it appeared that John Shaffer of Mahoning Township, Lawrence County, died on or about March 12, 1899, seized of a tract of land containing 119 acres in Mahoning Township, and by his will devised all his property, including his farm, to his wife, Mary J. Shaffer, for life, with remainder to his children and the plaintiffs who were children of a deceased daughter. This farm was underlaid with limestone and in his lifetime John Shaffer, along with his wife, Mary J. Shaffer, the defendant, had leased this limestone to the Carbon Limestone Company, and by the terms of the lease the royalties were payable to Mary J. Shaffer. This lease was in effect at the time of John Shaffer’s death, and by agreement dated February 3, 1908, Mary J. Shaffer, the life-tenant, and the remaindermen joined in a written agreement by which they leased the limestone to the Carbon Limestone Company and agreed to sell the said tract of land, reserving the limestone to the Carbon Limestone Company. This contract recited the lease made by John Shaffer in his lifetime, and that the life tenant and remaindermen were desirous of re-leasing the limestone, and then provided that the Carbon Limestone Company should make two payments amounting to thirty thousand dollars ($30,000.00) as advance royalties and should pay ten thousand dollars ($10,000.00) for the land, “which amounts are to be paid to the said Mary J. Shaffer and receipted for by her for the use and benefit of the several heirs of John Shaffer, deceased.” The agreement then provided for royalties to be paid on the limestone as it was mined. These royalties to be paid under a provision mutually agreed-to by the life tenant and the remaindermen, viz: “It is further understood and agreed that all moneys paid under this contract, other than the said forty thousand dollars ($40,000.00) first above mentioned, arising and growing out of the terms of this contract and during the life of the said Mary J. Shaffer shall be paid to the said Mary J. Shaffer or her authorized agent, and her receipt for the same shall fully protect the second party against any claim arising under this contract in favor of any of the heirs or descendants of the said John Shaffer, deceased; and at the decease of said Mary J. Shaffer it is agreed by the parties of the first part that they shall, in writing, choose a representative or trustee to whom said moneys, arising under this contract, shall be paid, and who shall be fully authorized to receipt for the same.”</p> <p>Under this provision the royalties were paid to Mary J. Shaffer.</p> <p>The plaintiffs brought this assumpsit against Mary J. Shaffer to recover the one-eighth part of these royalties received by her, alleging that prior to the making of the written contract there was a joint and several verbal agreement entered into among the life tenant and all of the remaindermen by which the royalties were to be divided into eight equal parts, one part to be retained by the life tenant and one-eighth to be paid to each of the remaindermen, the plaintiffs to receive one-eighth as representing the share of their mother. Mary J. Shaffer denied this agreement.</p> <p>The case was submitted to the jury.</p> <p>Verdict and judgment for plaintiffs for $1,458.33' Defendant appealed.</p> <p>Errors assigned were (1-16) various rulings on evidence and instructions.</p>
