delivered the opinion of the court,
The single question raised by the first three assignments of error is whether the trustee named in the will of Dr. Houtz can maintain an action on the contract for such breaches as are alleged to have occurred in the lifetime of the testator. As to those that occurred since his decease, it is conceded the trustee had a right to sue, but the defendant below contended that if any right of action accrued before, it vested exclusively in the executors; and in his first point the court was requested to charge that “ the plaintiff is not entitled to recover from the defendant for any alleged breaches of covenant prior to the death of Dr. Houtz.” The learned judge admitted testimony as to the prior breaches and refused the instruction prayed for.
By the contract of December 7th 1869, on which the action is based, Dr. Houtz, the party of the first part, agreed to lease certain tracts of land therein described to Mr. Shillingford, the defendant below, “for the purpose of mining, shipping and transporting coal from said lands and other lands owned and operated by the party of the second part, his heirs and assigns.” In consideration whereof, Shillingford agreed “ to proceed within thirty days to explore and prove the coal in said lands, and when the mines shall have been opened and all necessary improvements made, at the costs of the party of the second part, to operate the same in a workmanlike manner and pay for all coal mined and shipped from said tracts a royalty of fifteen cents per gross ton of twenty-two hundred and forty pounds.” The agreement is silent as to the time within which the coal is to be taken out as well as the quantity to be mined within any given period, and no time is fixed for the payment of the “royalty,” but by their subsequent dealings, the parties treated it as payable monthly. After the mines were opened, monthly returns and corresponding payments were made to Dr. Houtz until his decease in November 1873. By his will, dated July 8th 1872, Dr. Houtz devised all his lands in Woodward township, Clearfield county, including the lands above mentioned, to his three daughters, and as to the coal contract with the defendant below, he directed as follows: “ The coal leased thereon to remain in the hands and care of my trustee, together with my L. & A. Morrison paper, maturing, until all legacies in this will are paid and term of leases expired.” The legacies referred to aggre*33gate over $160,000, including $50,000 to each of his daughters. As to some of the legacies and bequests contained in the will, the trustee is specially clothed with powers and duties which would otherwise belong to the executors. The testator manifestly intended that the duty of executing some of. the provisions of his will should devolve on the executors and others on the trustee named by him; and if it can be fairly gathered from the will that, for all purposes connected with the trust, it was the intention of Dr. Houtz to commit his entire interest in the coal contract to the control and management of the trustee, and thus invest him with all the rights and powers pertaining thereto, which he himself possessed, there can be no doubt that the trustee was the proper party to sue for breaches which occurred before as well as after the testator’s decease. This is substantially the construction put upon the will by the learned judge of the Common Pleas, who instructed the jury that the legal title to the coal leases and* all money due upon them at the time of the testator’s death, passed under the provisions of the will to Dr. Good, the trustee, who thereby acquired the right to the custody of the leases and the management of the estate in them, for the uses specified in the will, and consequently he was the proper party to. sue for any balance due -for coal mined, whether in the lifetime of Dr. Houtz or since. While the construction thus given to the will may not be entirely free from doubt, we think it is correct. It is certainly not in conflict with any of the provisions of the will; on the contrary, it harmonizes with all of them better than the construction contended for by the defendant below. In addition to this, the objection is purely technical, and cannot affect the merits of the case as to either party. If the defendant below is liable for breaches of the contract, it can make no substantial difference to him whether he answers to the trustee for the whole of the damages, or to the executors for a part, and to the trustee for the residue. The executors concede to the. trustee the exclusive right of action, and by writing filed in the case, have agreed, in case the judgment is affirmed, “to release and .relinquish to the said defendant, his executors or administrators, any right Or supposed right which they now have or ever had, ..to sue for, recover or receive any sum or moneys for any breaches 'of the covenants of said agreement.” The defendant below is-thus amply protected against any claim or suit by or in behalf of the executors. We discover nothing in the assignments relating to the right of action that would justify a reversal, after a full, and fair trial on the merits.
The plaintiff’s testimony, if believed by .the jury, uncovered and exposed to full view repeated if not continuous acts of deception and fraud of a gross character in making up and rendering accounts of the products of the mines. The testimony on this subject was fairly presented and submitted to the jury with well guarded *34instructions. They were told that the monthly returns — purporting to be correct statements of the coal mined each month — which were received without objection and payments made thereon, were in the nature of settlements by the parties; and, in the absence of full and satisfactory evidence of fraud or mistake, they were conclusive; that “if there was any irregularity or cause of complaint, at the time of these monthly returns and payments, it was the duty of the plaintiff to then make known his objections, or he is concluded by the original amounts as fully as if a formal and final settlement of accounts had been made at the end of each month. To get behind these returns now the plaintiff must, by clear and indubitable evidence, prove that these returns were false and fraudulent.” The main question of fact was thus submitted in terms quite as favorable to the defendant below as he could reasonably ask.
When considered in connection with the context, there is no error in that portion of the charge embraced in the fourth assignment. The agreement of July 11th 1874, therein referred to, was offered and admitted “for the purpose of establishing the line claimed by the defendant as the division line of the coal on the Edmundson and Howell tracts.” While the learned judge properly held that the agreement was inoperative as a conveyance of land for want of the required acknowledgment, he recognised its effect, if fairly procured, as evidence of a settlement of the disputed boundary line by saying, in the same breath, that “ there is nothing in the law which forbids or prevents a married woman from settling a disputed boundary line without a formally acknowledged conveyance.” Proper effect was given to the agreement, and the questions of fact relating to the true location of the division line between the Edmundson and the Howell tracts, were fully and fairly submitted to the jury.
The fifth to the twelfth assignments inclusive relate to the question of fraudulent procurement and use of the agreement of July 1874, so far as it was claimed to be a settlement of the division line, and the submission of that question to the jury. The' plaintiff below recognised the validity of the agreement, as an exchange of the triangular piece of coal on his side of the line for a corresponding amount of coal alleged to have been mined on the other side and paid for by mistake; but he contended that it never was the purpose of the agreement to change or establish the location of the line; that, on the contrary, the parties who acted in the interest of the defendant below, in procuring its execution, expressly disclaimed any such object. Without referring specially to the several items of testimony on this branch of the ease, it is sufficient to say that it tended to sustain the position of the plaintiff below and to prove that the agreement, so far as it is now claimed to be a binding settlement of the disputed boundary line according to *35the course and distance therein specified, was artfully and deceitfully obtained. There can be no question .that the testimony was competent and sufficient to carry the question of fraudulent procurement to the jury. It makes no material difference that some of the misrepresentations complained of were made long before the agreement was signed. If their effect continued and was operative at the time the agreement was signed, it is enough. In Stubbs v. King, 14 S. & R. 206, it is said, “ Where a continued misapprehension of material facts has been induced on the part of the one by the misrepresentations of the other, it is 'obvious that the execution of the writing ought not to extinguish the right of the injured party to show the fraud by which his assent, to the contract was obtained.”
The remaining assignments are not sustained.
Judgment affirmed.