
    George Hoepfner et al., App’lts, v. August L. Sevestre, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 14, 1890.)
    
    1. Wills.
    In 1844 a testator made his will containing, among other things, the following provisions: “Second. I devise to my executors hereinafter named all my real and personal estate in trust; to lease my real estate, and to apply my personal estate, and the rents, issues and profits of my real estate, to the payment of all my debts hereby made a charge upon my real estate, and. to the payment of the annuity, or annuities and legacies, hereinafter specified. Eleventh. Upon the full payment and satisfaction of all my debts and expenses, and which are made a charge upon my real estate (and which I direct first to be paid), and after the payment of the legacies hereinbefore bequeathed, * * * I give, devise and bequeath all the rest, residue and remainder of my estate, one-fourth to my son,” etc. Eleven years later a residuary devisee brought a suit for the construction of the will and for a partition and sale, and this suit terminated the trust; and under this sale plaintiffs' remote grantor took title. In an action for specific performance of a contract to sell this real estate, Held, that whether a valid trust was created by the second clause or not, the residuary devisees took the fee from the death of the testator subject to the execution of the trust. Upon the termination of the trust by fulfillment of its purpose, the devise to the remaindermen took effect.
    
      %. Same.
    If the trust was invalid as such, it took effect as a power, and the lands passed directly to the residuary devisees, subject to the execution of the power.
    3. Same—Action foe construction—Parties.
    The heirs at law were not necessary parties to the suit for the construction and partition and sale.
    4. Adverse possession—As a&ainst infant.
    Adverse possession, as against an infant, cannot be extended by his disability for more than ten years after the disability ceases.
    Appeal from a judgment dismissing the plaintiffs’ complaint upon the merits with costs, in ail action tried at special term.
    
      John M. Bowers, for app’lts; Frederick DeP. Foster and Bussell Benedict, for resp’t
   Barrett, J.

This was an action for the specific performance of a contract for the purchase of real estate. The court at special term dismissed the complaint upon the merits, holding that the plaintiffs were unable to convey a marketable title. The question in dispute arises under the will of one David Beynolds, who died in the year 1844. His will was duly probated in this county on the 15th of June, 1844. The material parts of the two clauses of that will, which are now presented for consideration, read as follows:

Second. I devise to my executors hereinafter named all my real and personal estate in trust, to lease my real estate and to apply my personal estate and the rents, issues and profits of my estate to the payment and satisfaction of all my debts hereby made a charge upon my real estate and to the payment of the annuity or annuities and legacies hereinafter specified.

Fleventh. Upon the full payment and satisfaction of all my debts and expenses before mentioned and which are made a charge upon my real estate (and which I direct first to be paid) and after the payment of the legacies hereinbefore bequeathed, * * I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, one-fourth to my son James S. Reynolds and liis children, one-fourth to my son John George Reynolds and his children, one-fourth to my daughter Caroline, the wife of Burn W. Budd and her children, one-eighth to my said son Theodore Augustus Reynolds and the remaining one-eight to my said grandson Eugene Augustus.

About eleven years after David Reynolds’ death, a suit in equity was brought in this court by one of his residuary devisees for a construction of the will and for the partition and sale of property, which included the premises in question.

The residuary devisees, and all persons interested in the estate under the will as legatees or otherwise, were made parties to that action, which resulted in a decree for the sale of these premises and their purchase by one Krall, from whom, through a line of subsequent conveyances, the present plaintiffs derive their title. The heirs at law of one Isaac R. Reynolds, a deceased son of David, were, however, not made parties to that suit; and this circumstance constitutes the sole objection to the plaintiff’s title.

We think the objection was without reasonable foundation. It matters not whether a valid trust was created by the second clause of David Reynolds’ will. If a valid trust was so created the residuary devisees took the fee from the death of the testator subject to the execution of such trust The trustees, it is true, took the legal estate for the purposes of the trust. But upon the termination of the trust by the fulfillment of its purposes, the devise to the remaindermen took effect. 1 R. S., 729, § 61.

This is one of those cases where two contemporaneous estates in fee are authorized by the Revised Statutes. The estate required for the execution of the trust purposes of course takes precedence, but the remainder is nevertheless vested in interest. If, however, the trust was invalid as such, it certainly took effect as a power. In that case, the lands passed directly to the residuary devisees subject to the execution of the power. This is expressly provided where the devise is to trustees to sell or mortgage without power to receive the rents and profits. 1 R. S., 729, §56. The rule laid down in cases where the entire scheme of the testator’s will falls with the declared invalidity of the trust has no application here. The residuary devise stands alone. It is not dependent upon, nor is it complicated with, the trust to lease and to apply the rents to the payment of debts and legacies. And it would be absurd to say, in the face of this direct expression of the testator’s intent, that he died intestate. His heirs at law as such had, in our judgment, no interest whatever in these premises when the suit for construction, partition and sale was commenced, and they were not necessary parties thereto. We may add that the decree in that suit completely terminated the trust or the trust power, as the executor’s duties under the will may be viewed, and it makes ample provision for every legacy then unpaid.

If, however, these heirs were necessary parties, adverse possession has long since settled all questions upon that head. Forty-five years have elapsed since the death of David Reynolds and the probaté of his will as a will of real estate. Thirty-three years have elapsed since Krall took possession under his deed given in the partition suit. Since then he or his grantees have been in open and continuous possession under claim of specific title derived from the referee’s deed in such partition suit and the subsequent mesne conveyances.

This adverse possession was clearly and abundantly established and it was sufficient, after this great lapse of time, to fortify and complete even an otherwise doubtful title. Ottinger v. Strasburger, 33 Hun, 466, and 102 N. Y., 692; Shriver v. Shriver, 86 N. Y., 575 ; and see Kip v. Hirsch, 18 Abb. N. C., 167; Bohm v. Fay, id., 175; Waterman on Specific Perf., § 412.

It is said the heirs were infants, and that consequently the adverse possession did not run against them. Their age does not appear in the case. Their father was dead, however, when the suit for construction, etc., was brought. That was in Hay, 1855. The referee’s deed to Krall was recorded on the 11th of July, 1856.

Treating the minority of these infants as commencing at the latter date, though, of course, they must have been born before then, the statute certainly ran against them thirty-one years thereafter, and they were barred upon the 12th of July, 1887. The contract sought to be enforced was made on the 2d day. of August, 1888. The twenty years Statute of Limitations is qualified with regard to infants by the provisions of the Code, § 375, that the time of “ disability is not a part of the time ” limited in the act “for commencing the action, except that the time so limited cannot be extended more than ten years after the disability ceases.”

Thirty-one years from the date when Krall went into possession under the referee’s deed is, therefore, the extreme allowance permissible to these infants under the Code, and the rules which have been laid' down in construing prior enactments of a similar character. Willson v. Betts, 4 Denio, 201; Clapp v. Bromagham, 9 Cow., 530.

In our judgment, the plaintiffs have a good and marketable title, without resort to adverse possession. But with it, and in view of the great length of time which has elapsed since David Reynolds’ death, they have an entirely unexceptionable title. The judgment should therefore be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., concurs.

Bartlett, J.

I concur on the ground that the title by adverse possession was sufficiently made out.

Appeal from an order of the special term denying a motion for leave to submit further findings.

John M. Bowers, for app’lt; Frederic BeP. Foster, for resp’t

Barrett, J.

In view of the decision upon the main appeal from the judgment, it would be unprofitable to consider the question of practice here presented. This appeal should, therefore, be dismissed as unnecessary, without costs.

Yak Brunt, P. J., and Bartlett, J., concur.  