
    Frank Hasbrouck, as Trustee, etc., Resp’t, v. Frank Angevine et al., Impleaded, etc., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Will—Legacy charged upon lahd—When hot merged ih the lahd— Wheh lahd hot held adversely to it
    In 1888, B. died, leaving a will by which he devised to Nathan Jones a farm, “ subject to and charged with the payment of $723 to his executors.” The will directed that said $723 be added to and go to increase testator’s personal estate for the payment of the legacies and for final distribution under the residuary clause. Nathan Jones did not pay the $728,. but arranged so that the $723 should be secured to his wife, Susan Jones. Said wife survived him. In his will Nathan Jones recognized the $723 as an existing debt and a charge and lien upon his real estate, but his wife was to have the use and benefit of the land during the joint lives of her and her son, and the son to have the use during his life if he survived his mother. The net personal estate of Nathan Jones was only $320.00. Susan Jones occupied the farm under her husband’s will. She died in 1869 leaving no next of kin except her son, and left a will. The son lived until 1887, when he died, leaving no widow or descendants, and his only heirs-at-law the defendants. The plaintiff, on the death of Susan Jones, was appointed trustee under the will of Nathan Jones and under the will of Susan Jones, deceased. As trustee of Susan Jones’ will he received $878, the trust fund on hand. Feld, that the charge of $723 upon the farm devised to Nathan Jones was recognized by him in his will, and that Susan Jones, under said will, took the farm in tiust and subject to this lien, so that until the death of Susan Jones in 1869, she united in her own person the absolute ownership in her own right of the $723 charge and the legal fee of the land as trustee for her son and herself. That so long as this state of things continued there would be no merger of the lien and no adverse possession of the land as against this $723 charge or lien.
    ' 2. Same—Statute oe limitations when does hot apply.
    The statute of limitations did not run up to the death of Nathan Jones, as a credit was given without interest during his life, and his will made it a new charge upon the real estate left by him.
    3. Same—Wheh a trust fund.
    The charge continued a trust fund until the death of the son of Susan Jones.
    
      Appeal from a judgment in favor of the plaintiff, entered in the clerk’s office of the county of Dutchess.
    In 1838, one Joseph Burroughs died, leaving a will, in and by which he devised to one Nathan Jones, a son-in-law, husband of a daughter, Susan Jones, a small farm,
    ‘ subject to and charged with the payment of $723 to (his) executors one year after (his) decease.” By the provisions of the will the $723 charged upon the devised real estate was directed to be paid to the executors of the will, and to “be added to and go to increase (testator’s) personal estate for the payment of legacies and for final distribution under the residuary clause ” of said will.
    The residuary estate is given to three sons, Francis, Charles and Joseph Burroughs, the first two of whom are named as executors. Nathan Jones did not pay the $723 charge.
    In 1840, Joseph Burroughs and Francis Burroughs executed an agreement and power of attorney to and with their brother, Charles Burroughs, authorizing and empowering him to arrange with Nathan Jones so that the $723 charged upon the farm devised to Nathan Jones should be secured to Susan Jones, “without control of her said husband,” according to the same terms and conditions as those upon which a $1,800 legacy was left to said Susan Jones by the will of her father, the said Joseph Burroughs, deceased, to wit, “to put the same on interest on good security and keep the same on interest during the joint lives of my son-in-law, Nathan Jones, and my daughter, Susan, and during such period the interest to-be earned by said sum is hereby given and directed to-be paid to my daughter Susan annually and to her only. If the said Susan shall outlive the said Nathan, then or as soon after the death of said Nathan as it can be collected by my executors, the said principal sum of $1,800 shall be paid to said Susan, and be thenceforth at her complete disposal.”
    Thereupon, in 1840, Charles Burroughs, for himself and. as attorney for Joseph and Francis, his brothers, did “release and quit-claim all (their) and each of (their) right, interest, claim and demand of, in and to said sum of $723, charged as aforesaid upon said lot for and during the joint lives of said Nathan and Susan, his wife. If, however, the said Susan shall outlive the said Nathan, then I hereby for myself and brothers as aforesaid, do release entirely to said Susan and her heirs the sum of $723.”
    Susan Jones survived her husband, Nathan Jones, and the $723 charge became her’s absolutely on his death.
    . Nathan Jones died March 8, 1853, leaving a will, his widow, Susan Jones, a son by her, Joseph Jones, and a daughter by a former deceased wife, Caroline, wife of Henry Angevine.
    In his will, Nathan Jones recognized the $723 as an existing debt, and a charge and lien upon his real estate “which is to come out of the lands.” After payment of debts and a specific legacy to his daughter Caroline, the rent, and residue of his real and personal estate, said 'Nathan gives and devises to his wife, Susan, in trust for Joseph, his son, she to have the use and benefit thereof with Joseph during their joint lives, and after the death of Susan Joseph to have the use during his life; remainder to his lawful issue, if any, with power to Joseph to dispose of same by will should he die without lawful issue.
    The net personal estate of Na t han Jones was only $3,205.88, and no provision, whatever, was made for the payment of the $723 charge, on the final accounting of his estate, which was in 1856.
    Susan Jones went into possession and occupancy of the farm, charged with the payment of said $723, under her husband’s will, and continued in the occupancy and possession thereof, together with her son, Joseph S. Jones, down to the time of her death, in 1869.
    Susan Jones left no heir or next of kin, except her son, Joseph S. Jones, and left a will. She gives to her executors all her real estate in trust, to sell and convert into money.
    She directs the conversion of her personal estate into cash.
    The proceeds of her real and personal estate she gives to her executor, in trust, to invest and pay the income to Joseph S. Jones, her son, during life, and upon his death, to pay the principal sum to his lawful issue; and should he die without lawful issue, she gives to the widow of her brother, Joseph Burroughs, .Eliza Burroughs, $300; to a niece, Susan Nelson, $300; to her brother, Charles Burroughs, $300; and the balance to be divided among her nephews and nieces.
    Susan Jones, although devising real estate by the terms of her will, seems to have been seized of no real estate or interest in real estate except the aforesaid real estate devised by Joseph Burroughs to Nathan Jones, charged with the payment of said $723, and by said Jones devised to his wife Susan, in trust as aforesaid.
    The executor of Susan Jones’ will did not sell the real estate, therefor, but rented it, and applied the rents, together with the income of the personal estate, to the support of Joseph S. Jones.
    On the 19th of April, 1882, respondent was appointed trustee under the will of Nathan Jones, dec’d, as successors to Susan Jones; and on the 20th of July, 1882, respondent was appointed trustee under the will of Susan Jones, dec’d, as successor of Israel 0. Veliey, the former executor and trustee, both appointments having been made by the surrogate of Dutchess county.
    Upon respondent’s appointment as successor trustee, under will of Susan Jones, he received the net sum of $878.83 from his predecessor, as the amount of that trust fund and this money, with the real estate aforesaid, which is a small farm of twenty acres in Pleasant Valley, Dutchess county, New York, is all the trust property known to exist. Respondent rented the farm, and used the rent with interest, on the personal fund for the support of Joseph S. J ones, until his death, which occurred April 20, 1887. Joseph S. Jones left no widoivor descendants, and his only heirs-at-law and next of kin were the appellants, Prank Angevine and Mary Caroline Angevine, a nephew and niece the only surviving children of his half sister, Caroline Angevine, who died in 1878.
    Presumably Joseph S. Jones left no will, but it does not appear as no evidence on the subject was offered at the hearing of the application for interlocutory judgment.
    Upon the death of Joseph S. Jones, respondent brought this action to determine the rights of the various parties in interest to the property and funds in his hands, to foreclose the lein of the testamentary charge of said sum of $723 upon the land in question, for the benefit of Susan Jones’ estate, and to distribute the property and money to the persons entitled thereto, and for his discharge, on accounting as trustee.
    
      Benjamin M. Fowler, for resp’t; J. S. Van Cleef, for app’lts.
   Pratt, J.

Upon the facts as found the judgment is amply sustained. There is no certificate that all the evidence given upon the trial is reported in the case, and hence, even if there was a substantial dispute as to the facts this court is at liberty to presume that there was evidence sufficient to sustain the findings.

The charge of $723 upon the farm devised to Nathan Jones was recognized by him in his will, which took effect March 8, 1853, and Susan Jones under this last named will, took the farm in trust and subject to this hen, so that until the death of Susan Jones in 1869, she united in her own person the absolute ownership in her own right of the $723 charge and the legal fee of the land as trustee for Joseph and herself. So long as this state of things continued, there could be no merger of the lien and no adverse possession of the land as against this $723 charge or lien.

Under these circumstances we do not think the charge became a formal claim against a devisee so as to fall within the prindiple laid down in Loder v. Hatfield (71 N. Y., 92), and, therefore, it is not barred by the statute of limitations.

The statute did not run up to the death of Nathan Jones, as a credit was given without interest during his life, and his will made it a new charge upon the real estate left by him.

The charge continued a trust fund until the death of Joseph Jones in 1887, and therefore is not barred.

This is the only question necessary to be determined upon that appeal.

Dykman, J., concurs; Barnard, P. J., not sitting.  