
    Adam Masionis, individually and as executor of the last will and testament of Paulina Masionis, deceased, complainant, v. Mary Kraulikauckas, defendant.
    [Decided May 28th, 1928.]
    1. A wife’s will, in which she devised and bequeathed all her property to her husband, whom she appointed executor with full power of sale, was not rendered void by the subsequent birth of three children, and the power to sell did not lapse.
    2. After the wife’s death the husband in this case was entitled to bring suit to quiet title, claiming under the wife’s will, notwithstanding that he was not the owner in fee, for the statute controlling these cases prescribes that the complainant may be either the owner or a person claiming to own the same in fee under a deed or other instrument.
    3. In his suit to quiet title, the husband did not need to make the three children born after his wife made her will parties, since he was a co-tenant with them and was removing a cloud from their interest as well as his own; in clearing title against other defendants, he did not affect their rights.
    
      Mr. Harry Gastelb’aum, for the complainant.
    
      Mr. George Matulewich, for the defendant.
   Church, V. C.

This is a bill for specific performance. The property was owned by Paulina Masionis. She died leaving a will which devised and bequeathed all her property to her husband, Adam, whom she appointed executor with full power of sale. She also left three children, all born after the will was made. At the hearing it was contended that the will was thus rendered void and the power of the executor to sell lapsed.

This is not so, as I pointed out in Pashkow v. Frankel et al., 101 N. J. Eq. 510. Counsel for defendant in his brief admits this and abandons this objection.

The second objection arises from the following circumstances: After Paulina died there appeared clouds on the title to the property. Adam brought a suit to quiet title, claiming under his wife’s will. All the outstanding interests were brought in and a decree against them was entered.

Defendant says Adam has no authority to bring the suit because he was not the owner in fee. The same objection was raised in McGrath v. Norcross, 70 N. J. Eq. 364. Yice-Chancellor Grey disposed of it in the following language: “This contention of the defendant is based on a misapprehension of the statute. It does not limit the benefits of the act to actual owners of the disputed premises. On the contrary, the statute prescribes that the complainant may be either the owner or a person claiming to own the same in fee under a deed or other instrument.”

The proceedings are also attacked because the after-born children were not made parties complainant or parties defendant.

■ This, in my opinion, was not necessary because Adam’s interest and that of his children was identical. In clearing the title against other defendants he in no way affected their rights. He was a co-tenant with them and removed a cloud from their interest as well as his-own. As between him and the children the title remained as it was before the suit was instituted. As executor of his wife’s will he can convey a marketable title and the children’s interests will attach to the proceeds.

I will advise a decree for specific performance.  