
    Otto W. Doll, Plaintiff, v. Leon Pizer and Jacob Pizer, Defendants.
    
      Vendor and, purchaser — what is sufficient proof that the title to a parcel of land, a conveyance of which by the. trustee under the owner’s will is not produced, is free-from, the claims of any persons entitled thereto, under his will — when beneficiaries under a will are entitled, not to a specific interest in the land, but only to a share of the proceeds thereof.
    
    John Gassner owned, at the time of his death, in 1822, eleven parcels of land, one of which was No. 80 Chrystie street, in .the city of New York. He left a. will, by which he devised and bequeathed his entire estate, real and personal, to his executors and trustees, in.trust to divide the same among “several legatees” of whom Andrew Gassner was one. The will further provided that if an equal division or partition could not be made, the executors and trustees, should sell the real and personal estate and divide the proceeds thereof into-five equal parts. After disposing of four of such parts, he directed the executors and trustees to “ appropriate and put out the remaining part or sum of one-fifth part of my estate so as aforesaid directed, to be divided by them (in-case of the sale thereof or otherwise), or so much thereof as they shall deem most advisable at interest on competent * * * security * * * and pay the interest, proceeds or dividends thereof unto my daughter Mary. Catharine Milderberger, the wife of John Milderberger, if living at the time of my decease, for her maintenance and support during her natural life, and for the education, maintenance and support of her children during their minority, or so much thereof as she may require according to the discretion of my said executors and trustees, upon her own receipt only, free from any control of her said husband, and if such interest and dividends shall not be sufficient for her comfortable and decent support and for the proper bringing up of her children as aforesaid, that then my said executors and trustees shall and do appropriate from time to time so much of the said principal as in their opinion may be deemed necessary for the aforesaid purposes, and after the death of my said daughter Mary Catharine Milderberger, that they, my said executors and trustees or the survivors of them, shall and do divide and pay over the residue of the said one-fifth part of my estate so remaining in their hands, with interest thereon accrued and not paid out by them unto and among my grandchildren, Mary Milderberger, Catharine Milderberger, Elizabeth Milderberger and Oliver Milderberger, * * * now living, and such other child or children of my said daughter born or to be born as she may leave, or the survivor of them, as they shall severally become of lawful age, to whom I will and devise the same equally to be divided between them and their respective heirs, share and share alike.”
    The sole executor and the trustees conveyed all Of the parcels, with the exception of the Chrystie street parcel, by conveyances reciting that they were made in pursuance of the power of sale contained in the will of John Gassner, a specific division or partition among the beneficiaries under the will being impracticable.
    On September 3, 1825, a deed was recorded, executed by Andrew Gassner, a son of John Gassner, to Peter McCartee of all the grantor’s property upon certain trusts. No specific piece of property was described in this deed of trust.
    In 1857 a trustee, who had been substituted in place of McCartee, and the presumptive heirs at law of Andrew Gassner, reconveyed the property to Andrew Gassner by a deed which specifically mentioned. No. 80 Chrystie street as forming part of the trust estate.
    In 1869 Andrew Gassner and his wife conveyed the Chrystie street parcel to one .Rowe by a full covenant warranty deed, and since thatztime the conveyances of the property have been, regular.
    All of John Gassner's children and grandchildren, including the then living children of his daughter, Mary Catharine Milderberger, executed full releases to the executor and trustee Daniel Gassner, reciting the receipt and payment of ' the distributive shares of the estate to which they were severally and respectively entitled. .
    In an action to enforce a contract for the sale of No. 80 Chrystie street the title was objected to by the purchasers on the ground that rights of ownership in the property might exist in some person or persons entitled under the will of John Gassner to an interest in that parcel of land, and it was urged that the vendor could not convey a complete title; that as against such person or persons the vendor could convey a right resting in adverse possession only, and that it was consequently obligatory upon the vendor to show affirmatively that no one under the disabilities of infancy or mental incompetency had a present interest therein.
    Held,'that it was ascertainable from the deeds and releases and the recitals contained therein that there was a full settlement of the estate of John Gassner, under and by authority of the will, and that the real estate was converted into personalty and that those who were entitled took their distributive shares as legatees, received them, in full and gave acquittances for them;
    That the title to the Chrystie street parcel could not be successfully attacked because of the existence of some possible outstanding interest in the children | of Mary Catharine Milderberger unborn at the time of John Gassner’s death or ¡ their descendants, as,. whoever was entitled to take under the will of John j Gassner, would take only a share of the proceeds of the sale of the real estate | and not specific interests in the land as such.
    Submission of a controversy upon an agreed statement of facts,pursuant to section 1279 of the Code of Civil Procedure.
    
      Francis B. Chedsey, for the plaintiff.
    
      John D.. Connolly, for the defendants.
   Patterson, J.:

The plaintiff and the defendants entered into a contract for the sale and purchase of a lot of land in the city of New York known as No. 80 Chrystie street. At the time fixed for closing the transaction the defendants objected to taking a conveyance on the ground that they could not obtain a marketable title. The single question on this appeal is whether one specific objection was well taken. It is, in substance, that there may be certain persons now living, under disabilities, whose interests in the lands have'never been acquired by the plaintiff or his predecessors in title and which may not be extinguished.

The earliest record we have affecting the title to the property is a conveyance made to one John Gassner on November 19, 1784, by Stoutenberg and Van Cortlandt, Commissioners of Forfeiture of the State of New York. John Gassner died in the year 1822, leaving a last will and testament, which was duly admitted to probate; and by that will he devised and bequeathed all his real and personal property to his executors and. trustees and the survivor or survivors of them upon the trust that as soon as convenient after his decease such executors and trustees should make a division of the whole estate among “ the several legatees.” And the will further provided that if a division or partition could not be equally made, according to the rights of such several legatees ” without prejudice to either, then the executors and trustees, or the survivors or survivor, were required forthwith to sell, lease or otherwise absolutely dispose of all of the estate, real or personal, as aforesaid, at public auction or otherwise, and convey the same in fee simple, and after the receipt of the moneys to arise.from such sales of real and personal estate, to pay the debts and funeral expenses, and then to divide all the residue of such proceeds of my estate ” into five equal parts or portions, and thereupon to pay one of them to the testator’s grandsons, John Gassner and Peter Gassner, sons of his eldest son John ; one other fifth part of the proceeds to David Gassner, John Gassner and Maurice Gassner, the surviving children of his son Peter Gassner; then to pay over to each of his two sons, Daniel Gassner and Andrew Gassner, or to retain for their benefit, two other equal fifth parts of such proceeds to be equally divided between them, their heirs and assigns, or the survivor of them in case either shall have died without issue, share and share alike The testator then provided as follows: “ Fifthly. That they my said executors and trustees do and shall, as soon as convenient for them, appropriate and. put out the remaining part or sum of one-fifth part of my estate so as aforesaid directed, to be divided by them (in case of the sale thereof or otherwise), or so much thereof as they shall deem most advisable at interest on competent * * * security * * * and pay the interest, proceeds or dividends thereof unto my daughter Mary Catharine Milderberger, the wife of John Milderberger, if living at the time of my decease, for her maintenance and support during her natural life, and for the education, maintenance and support of her children during their minority, or so much thereof as she may require according to the discretion of my said executors and trustees, upon her own receipt only, free from any control of her said husband, and if such interest and dividends shall not be sufficient for her comfortable and decent support and for the proper bringing up of her children as aforesaid, that then my said executors and trustees shall and do appropriate from time to time so much of the said principal as in their opinion may be deemed1 necessary for the aforesaid purposes, and after the death of my said daughter Mary Catharine Milderberger, that they, my said executors and trustees or the survivors of them, shall and do divide and pay over the residue of the said one-fifth part of my estate so remaining in their hands, with interest thereon accrued and not paid out by them unto and among my grandchildren,. Mary Milderberger, Catharine Milderberger, Elizabeth Milderberger and Oliver Milderberger, * * * now living, and such other child or children of my said daughter born or to be born as she may leave, or the survivor of them, as they shall severally become of lawful age, to whom I will and devise the same equally to be divided between them and their respective heirs, share and share alike.”

Daniel Gassner became the sole executor and one of the trustees under this will. John Gassner died seized of eleven parcels of land, and it is admitted that the land, No. 80 Chrystie street, is one of those parcels. All of them, except the premises in question, were conveyed by the executor and the trustees. In those conveyances it is recited that they were made in pursuance of the authority to sell and'divide proceeds, contained in the will of John Gassner, a specific division or partition among the beneficiaries under the will being impracticable. The proceeds arising from the Sales of these properties were evidently divided in accordance with the provisions of the will, or in some other manner satisfactory to those who were entitled to receive them. There is no deed on record conveying Mo. 80 Chrystie street, but on September 3,1825, a deed was recorded, executed by Andrew Gassner, a son of John Gassner, which conveyed all of his, Andrew Gassner’s, property, in trust to Peter McCartee, to pay his debts and .to manage the real estate and collect the rents and issues and pay them over to him during his life and for the support of his wife and "children and after his death to convey the estate to his heirs at law. Mo specific piece of property is described in this deed of trust, but it is a general conveyance of all and singular the- lands, tenements and real estate of the grantor. In 1841, McCartee having died, Burdick was appointed trustee in his place, and in 1857 the substituted trustee and the presumptive heirs at law of Andrew Gassner reconveyed the property of Andrew Gassner and in that deed the premises Mo. 80 Chrystie street are specifically mentioned •as forming part of the trust estate. After the death of Andrew Gassner there was a confirmatory deed executed by his children and heirs at law to Otto Doll, who was then in possession. In 1863 Andrew Gassner executed to John Rowe a lease, and in 1869 he and his wife executed and delivered a full covenant warranty deed to Rowe, who conveyed the premises in 1869, and there is no question of title since that period.

Recurring to the ten deeds made by the executor and trustees of John Gassner’s estate, it would appear that all the testator’s children and grandchildren, including the then living children of his daughter Mary Catharine Milderberger, executed full releases to the executor and trustee, Daniel Gassner, reciting the receipt and payment of the distributive shares of the estate to which they were severally and respectively entitled. The first release executed by Mary Catharine Milderberger reserved the sum of $14,000, being her part or share of the estate of the said John Gassner, deceased, or the balance then remaining due thereon.” But she subsequently executed another release in which she and her children acknowledged the payment of this $14,000.

It is, we think, ascertainable, from the deeds and releases and the recitals contained therein, that there was a full settlement of the estate of John Gassner, under and by authority of the will, and that the real estate was converted into personalty and that those who were entitled took their distributive shares as legatees, received them in full and gave acquittances for them. As before remarked, there does not appear on record any deed made of Ho. 80 Chrystie street by the executor and trustees of John Gassner, and the objection now taken by the defendants to the title is that rights of ownership in that piece of property may exist in some jjerson or persons entitled under his will to an interest in that particular lot of land, and it is urged that the plaintiff cannot convey a complete title, but that as against the interests of some who may be in being and entitled to claim under the will of John Gassner, the plaintiff can convey a right resting in adverse possession alone, and that being so, the burden is upon the plaintiff to show that no one under the disabilities of infancy or mental incompetency has a present interest; or, in other words, must show by proof or by reasonable inference from facts proven, that no such persons are in existence.

It will be seen from the foregoing statement that this objection can apply only to children of Mary Catharine Milderberger, unborn at the time of John Gassner’s death in 1822, or possibly to their descendants.' Every other person has released his or her interest. There is clearly in the record an adverse holding of and under Andrew Gassner from as far back as 1857, when he received from the trustee a deed specifically .naming this property, and his occupation thereunder was plainly against every one. It may not be altogether impossible that even after the expiration of eighty years, some person may appear claiming to b,e interested in the property as a child or descendant of a child of Mary Catharine Milderberger, born after she and her then living children executed releases of their interest in the estate, which they realized through'the proceeds of sales and the conversion of realty into personalty, but it is highly improbable. However, we do not think the title to this property may be affected by such an objection. We are of the opinion that/whoever was entitled to take under the will of John Gassner would take only a share of the proceeds of the sale of his real estate and not specific interests in land as such. Although as stated there is no deed on record made of the premises' Ho, 80 Chrystie street, yet in the ten deeds of other premises there are recitals that the whole estate was converted into personalty and the releases are of all the interests of the releasors in the estate. The recitals in- those deeds and releases are some evidence that the whole estate was disposed of by the executors and trustees. (Jackson ex dem. Schuyler v. Russell, 4. Wend. 548; affd., sub nom. Russell v. Jackson ex dem. Schuyler, 22 id. 277.) • Giving force to thac evidence in connection with the other facts admitted in the agreed statement, we think the objection should not be sustained, that the plaintiff can give a marketable title and that judgment should be ordered in her favor, with costs. ,

O’Brien, Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment ordered for plaintiff, with costs.  