
    Aldrich v. Funk et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 17, 1888.)
    1. Guardian and Ward — Sale of Ward’s Realty—Failure of Record to Show Application by Guardian.
    Where it appears that an infant, for the sale of whose land a petition was filed, was 17 years of age, that she signed the petition, and that she had the co-operation and advice of her mother, to whom she intrusted the proceedings, and who actively participated in them, the proceedings will not be held invalid because the record does not show that the application was made by the next friend or guardian of the infant. The court will presume that the ceremony of presenting the application was sufficiently observed to confer jurisdiction.
    3. Same—Sale of Ward’s Realty—Reference to Master.
    3 Edm. St. at Large N. Y. 203, relating to applications for the sale of an infant’s real estate, provides that the court “may proceed in a summary manner, by reference to a master, to inquire into the merits of such application. ” Held, that the omission to order such reference is not fatal to the proceedings; that the intention of the legislature was that such inquiry might be made by the court alone, or by a reference, in its discretion.
    3. Same—Sale of Ward’s Realty—Ratification by Ward.
    A sale of an infant’s real estate was had, on her own application, when she was 17 years old. Nearly 19 years after she became of age she brought an action, against a bona fide purchaser of the property, to recover it, without tendering or offering to return the money which she received from the sale. ” Held, that she must be deemed to have ratified and confirmed it.
    4. Appeal—Review—Indefinite Objections to Evidence.
    Objections to the introduction in evidence of a petition for, and the papers and proceedings in, the sale of an infant’s real estate, on the ground that “it does not furnish the foundation of any proceeding in any court, ” and that “ it is not executed in the manner required by law, or any paper is required to be the foundation of a proceeding in court, or become matters of record, ” are too vague and indefinite to be considered.
    Appeal from judgment on report of Frank S. Black, Referee.
    Action to recover possession of real estate, brought by Henrietta Aldrich against Margaretta Funk and others. Judgment for defendants, and plaintiff appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Hunt & Whedon, for appellant. J. K. Long and George Bay, for respondents.
   Ingalls, J.

This action is instituted by the plaintiff to recover possession of the undivided one-half of lot Ho. 151, Third street, in the city of Troy. The plaintiff and defendants derive title to the premises from John W. Fonda, as the common source of title,—the plaintiff, as a devisee under the last will and testament of said John W. Fonda; the defendant Margaretta Funk, as a purchaser of the premises for a valuable and adequate consideration from William Spath, who was at the time of such purchase, in 1865, in the actual possession and occupancy thereof, claiming title thereto. Since her purchase the defendant has been in the actual possession of the premises, claiming title thereto under her deed from Spath. When the defendant Margaretta Funk purchased the premises, the buildings thereon were in a dilapidated condition, and were taken down, and a substantial brick dwelling-house was erected. The title of the said defendant had never been questioned until the commencement of this action, in May, 1884. John W. Fonda, who resided in the city of Troy, made his last will and testament, bearing date October 25,1850, as follows: “I, John W. Fonda, of the city of Troy, in the county of Rensselaer and state of Hew York, being of sound mind, do hereby make this, my last will and testament, to-wit: First. I will and direct all my just debts and funeral charges be paid by the executor and executrix hereinafter named. Secondly. I give and devise to my wife, Martha, all my real and personal estate of every name and nature, wheresoever the same may be, for her use and benefit during her life, and as long as she may remain a widow, and, after her death or day of marriage, then I give and devise all the real estate to be equally divided among my two children, if they should be of the age of twenty-one years; if not, to remain under the control of my hereinafter named executor till they shall have attained the ages of 21 years each; then I will the said real estate to be equally divided between my two children, their heirs and assigns. Thirdly. I do will and declare that the devises and bequests hereinbefore named and made to my wife, Martha, are by me meant and intended to be in lieu, bar, and satisfaction of all and every claim of dower or thirds she could or by law might have, at the time of my decease, of, in, or to my estate and effects, real or personal, or any part thereof. Lastly. I do hereby nominate and appoint John Gardner, of the city of Troy, executor, and my wife, Martha, executrix, of this, my last will and testament, and I do hereby revoke all and every former will by me made. In witness whereof I have h Teunto set my hand and seal this 25th day of October, 1850. John W. Fonda, [l. s.] Signed, sealed, published, and declared by the testator, John W. Fonda, to be his last will and testament, in the presence of us, who at his request, in his presence, and in the presence of each other, have subscribed our names as witnesses. James Thorn, County of Rensselaer, State of Hew York. Charles Cole, County of Rensselaer, State of New York.” He died about the 1st day of November, 1850, and the will was admitted to probate November 16, 1850, as a will of real and personal estate. John W. Fonda left him surviving his widow, Martha F. Fonda, and two children, Philip W. Fonda, who was at the death of his father twelve years of age, and Henrietta, the plaintiff, who was three years of age. In 1854, John Gardner, who was named in the will as executor, was removed from such office by the surrogate of Rensselaer county. The widow, then Martha F. Fonda, was the sole remaining executrix. In 1856 she married James G. Holmes. Philip W. Fonda, on the 14th day of September, 1863, being then of age, with his mother, acting as trustee for Henrietta, the plaintiff herein, conveyed the premises to said William Spath, for the consideration of $900, taking back a bond and mortgage upon the premises for $500, to secure a portion of the purchase money; which mortgage, with the bond accompanying the same, was executed by the said William Spath to Martha F. Holmes, as trustee for Henrietta Fonda, her daughter. The mortgage contained this provision: “Provided that, at the time when the said sum of five hundred dollars shall become payable and due, the said Henrietta Fonda shall tender and give to said William Spath a quitclaim deed for the premises hereinbefore described, the said amount of $500 being a part of the purchase money.”

In the year 1864 the plaintiff, being then nearly 18 years of age, and being the wife of Henry B. Aldrich, to whom she was married in 1864, desired to obtain the money secured by the bond and mortgage, and through her mother, who had assumed to act as her trustee, and with whom she had resided up to her marriage, and with whom she was then residing, applied for the money. Mrs. Holmes, who then resided at Jeddo, Niagara county, in this state, visited Troy for the purpose of obtaining such money for her daughter, the plaintiff herein. A question was raised in regard to the conveyance by Henrietta, which was provided for in the mortgage; she not having reached majority, being only about 18 years of age. And the money, by the terms of the mortgage, was made payable in live years from the date thereof, which would extend to a period when she would become 21 years of age. But to oblige the plaintiff, for whom her mother was acting, Mr. Spath consented to pay the money, in advance of the time fixed therefor, provided he could obtain a valid deed from Henrietta. To accomplish this, an application was made to the county court of Rensselaer county, where the premises were situated, for leave to sell and convey the interest of the plaintiff in such premises. The petition was signed and verified by Henrietta Aldrich, the plaintiff, in which she stated, among other things, that she was 17 years of age, and described the premises, and stated her interest therein, and how derived, and the fact that her brother Philip W. Fonda had conveyed his interest in the premises to William Spath, and that her mother had joined in the deed; that the premises were worth $900; and that her interest therein was unproductive, and liable any time to be partitioned by action, which would be expensive; that she owned no other personal or real estate, except wearing apparel. She prayed the appointment of James Thorn, who resided in the city of Troy, as special guardian, for the purpose of selling such real estate. She stated, further, that she had no general guardian. The court entertained the proceeding, and investigated the facts, and made an order appointing Mr. Thorn such special guardian, upon bis executing a bond, with securities, as prescribed by the order, which he did, and the same was approved by the court. The special guardian reported to the court a contract for the purchase of the said real estate, as follows: “Rensselaer County Court. In the Matter of Henrietta Aldrich, Infant, for the Sale of Certain Real Estate. To the Honorable Gilbert Robertson, Jr., County Judge of the County of Rensselaer: In pursuance of an order of this court made in the above matter, on the 29th day of December, 1864, authorizing and empowering me, as the special guardian of the infant therein, to contract for the sale and conveyance of all the right, title, and interest of the said infant in the real estate mentioned and described in the petition of the said infant in this matter, dated the 23d day of December, 1864, and to report upon oath the terms and conditions of the agreement made by me with the purchaser or purchasers before executing any deed or conveyance of the said premises, I, the said special guardian, do certify and report that I have entered into an agreement, subject to the approbation of this court, with William Spath, of the city of Troy, for the sale of all the right, title, and interest of the said petitioner to-the said real estate, for the sum of five" hundred dollars in cash, on the executing and delivery to him of the deed of the special guardian, duly appointed for that purpose. And I do further certify and report that the costs and disbursements of these proceedings amount to $30, after deducting which sum from the purchase money as aforesaid there will remain the sum of four hundred and seventy dollars. And I further report that the above are the best terms upon which I could sell the said premises. All of which is respectfully submitted. Dated 30fft December, 1864. James Thorn.” The report was. duly verified by the oath of the special guardian, which accompanied the report. The report was confirmed by the court, and a conveyance was directed,, which was executed by the special guardian in due form to William Spath. And the deed recited the proceedings which liad been taken in the county court with considerable particularity. Upon the receipt of the deed, William Spath paid to William Thorn, the special guardian, the money; who, after deducting $30, the costs of the proceedings, paid the balance to Mrs. Holmes, the mother of the plaintiff, who receipted the same. The evidence shows,, not only that the plaintiff lived with her mother previous to and at the time-of her marriage, and when the proceedings were prosecuted for the sale of her interest in the real estate, but that she resided after such sale, and for a period of about nine years, within a fourth of a mile of the residence of her motlier, and there resided at the death of her mother, in 1874; and that during such time she saw her mother nearly every day. It is very evident, from all the facts and circumstances developed by the evidence, that the sale of the; real estate was with the knowledge, consent, and by the procurement of the plaintiff, who had attained an age when she was capable of understanding- and appreciating her rights. We think it may be fairly inferred, from all the circumstances, that the plaintiff received and enjoyed the proceeds of the sale;-, especially so as she did not deny the same upon the trial, which she might, have done as a witness, if it were otherwise. The silence of the plaintiff for such a length of time, in regard to her pretended claim, after the sale, and. after the death of her mother, is a significant circumstance against the same. The plaintiff has never offered to return the money which was paid for the premises, and which it is but reasonable to assume she received. Spath purchased in good faith, and paid an adequate consideration for the premises. And the defendant Margaretta Funk purchased the same of Spath, and paid, therefor the full value, and has since occupied the premises. The equities seem undeniably with the defendants, who are entitled, we think, to every reasonable intendment in support of their title. By the will of John W.. Fonda the plaintiff became seized of a vested estate in the land, subject to the-right of the widow of the testator to use and enjoy the same during her natural life, or until she should again marry. She married James G. Ilolmes in 1856, and from that period she ceased to have any interest in the premises,, and the title of the plaintiff became free from incumbrance. Ackerman v. Gorton, 67 N. Y. 63; Lioingston v. Greene, 52 N. Y. 118; Lawrence v. Cooke,. 104 N. Y. 632,11 N. E. Rep. 144; Insurance Co. v. Shipman, 15 N. E. Rep.. 58; Moore v, Littel, 41 N. Y. 66; Radley v. Kuhn, 97 N. Y. 27, 35; Tracy v. Ames, 4 Lans, 500; Manice v. Manice, 43 N. Y. 380.

By the clause in the will, “ if they should be of the age of twenty-one years; if not, to remain under the control of my hereinafter named executor, till they shall have attained the age of twenty-one years each; then I will the said real estate to be equally divided between my two children, their heirs and assigns,” the testator evidently intended to refer, not to the period When the estate should vest in the children, but to the time when they should enter upon the actual possession thereof, or when the division should take place. The expression, “to remain under the control of my hereinafter named executor,” is so vague and indefinite that it is really difficult to apprehend what the testator intended thereby. No valid trust was created by that provision; there is no authority conferred upon the executor to receive the rents and profits; nor is there any direction in regard to the disposition thereof. Chamberlain v. Taylor, 105 N. Y. 191, 11 N. E. Rep. 625. Nor does the will direct in what manner, or for what purpose, such control should be exercised. 1 Edm. St. at Large, p. 678, § 55. Such provision is equally ineffectual to create a power in trust, as no specific duty is conferred upon-the executor, nor is he vested with any specific authority over the real estate. Indeed, Gardner, the executor, did not assume to exercise any control of the real estate, and was removed as executor, by the surrogate of Rensselaer county, in the year 1854. It is apparent from the conduct of Gardner, and of all the parties interested in the estate, that no authority was recognized in him to control the same in any respect. The sale cannot be regarded as having been made contrary to the provisions of the will. Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. Rep, 144; Manice v. Manice, 43 N. Y. 303; Weeks v. Cornwell, 104 N. Y. 325, 10 N. E. Rep. 431. The plaintiff possessed such an interest in the land as authorized its sale, under the proceedings instituted therefor, under the provisions of the Revised Statutes entitled “Of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates.” 2 Edm. St. at Large, p. 202. The county court of Rensselaer county, in which the premises were situated, possessed jurisdiction to entertain the proceedings. Dodge v. Stevens, 105 N. Y. 585, 12 N. E. Rep. 759; Jenkins v. Fahey, 73 N. Y. 355. The proceedings are assailed by the plaintiff upon the grounds that in some respects they were irregular, and to such an extent that no title was conveyed thereby to the purchaser, as against the plaintiff, who was an infant; and when the petition was offered as evidence it was objected to by the plaintiff’s counsel upon the grounds: “It does not furnish the foundation of any proceeding in any court; second, it is not executed in the manner required by law, or any paper is required to be the foundation of a proceeding in court, or become matters of record.” The objections are so vague and indefinite that it is not easy to perceive what question the plaintiff’s counsel intended to raise. No particular defect is specified, which was necessary, in order to enable the court to understand whether they were aimed at a matter of form or substance. Again, if the defect complained of had been specified, it might have been supplied, if any was found to exist. The petition seems to contain sufficient to answer the requirement of the statute, and to constitute, at least, a substantial compliance therewith. The defendants offered, in connection with such petition, from the record of the Rensselaer county clerk’s office, all orders and proceedings had and taken upon and under said petition, including the order appointing James Thorn special guardian to sell the real estate of Henrietta Aldrich, the petitioner therein, and plaintiff in this action, and the bond of such special guardian. To this offer the plaintiff’s counsel objected, upon the same grounds interposed to the petition; “also as affording no grounds for the court to entertain the proceedings. ” The objections thus interposed are equally insufficient to raise, any question, or to prove available to the plaintiff. The proceedings were admitted by the referee, and are contained in the printed ease. The defendants offered in evidence the deed executed by the special guardian, James Thorn, to William Spath, to which the plaintiff’s counsel objected upon the same grounds. And, further, that the deed was void, as being in contravention of the statute relating to the sale of infants’ real estate. The objections were overruled, and the deed, was received. Upon the presentation of the case in this court, the counsel for the plaintiff stated certain objections to the proceedings, which are claimed to be fatal thereto, which we will proceed to consider.

One is that it does not appear that the application was made by the next friend or guardian of the infant. Ho such objection was pointed out when the petition was offered. If it had been specified, the defendants might have possibly supplied the seeming omission, and there is nothing to show that it could not have been done. The petition states that the plaintiff was of the age of 17 years, and we may assume that she was competent to understand the same, and to appreciate her rights. She had also the co-operation and advice of Her mother, whom she intrusted with the proceeding, and who may have acted as her next friend. The evidence shows that she was actively participating in the proceedings. The statute does not describe any particular form to be observed by the person who presents the application as next friend, and, nothing appearing to the contrary, we may properly assume that the ceremony was sufficiently observed, in getting the application before the court, to confer jurisdiction. In re Whitlock, 19 How. Pr. 380; O'Reilly v. King, 28 How. Pr. 409. In the case last cited Judge Monell remarks: “I see no reason why he may not, by his next friend, apply orally; the courts have established rules, but they are mere rules which the court may, in its discretion," disregard. ” In Cole v. Gourlay, 79 N. Y. 528, Judge Miller, at page 535, says: “A mere departure from a rule of the court does not impair the validity of the proceedings. ” The learned judge refers in this case to O'Reilly v. King, supra. It is further objected that the affidavit of disinterested persons was not produced. Ho such objection was made on the trial. It does appear that the affidavit of Alfred B. Hash was furnished, wherein he stated that he was acquainted with the situation and value of the premises, and that they were not worth to exceed $800; and that he was not related to the petitioner, or in any manner interested. In Cole v. Gourlay, supra, this objection has been answered. It was further objected in this court that no reference was ordered by the county court to ascertain and report the truth of the matters contained in the petition. Ho such objection was made at the trial, and we deem it too late to raise it upon appeal. We do not deem such omission fatal to the proceedings, even though the question had been properly raised at the trial. The Revised Statutes, under which the application was made, (2 Edm. St. at Large, 174, 203,) provides: “Upon filing such bond, the court may proceed in a summary manner, by reference to a master, to inquire into the merits of such application.” We think it was the intention of the legislature that such inquiry might be made by the court, or by a reference to a master, as the court should deem proper, thus leaving the matter to its discretion. In some cases of this nature, the facts are few and simple, and easily ascertained; in others, complicated and intricate; and in the former no reference would be necessary, but in the latter hardly to be dispensed with. The view of the statute thus taken seems in harmony with its spirit, and necessitates only the interpolation of the word “or” to bring it clearly within the letter. It seems scarcely consistent to hold that the court proceeds in a summary manner to inquire into the merits of an application, when a reference is directed to ascertain the facts. In Re McIlvaine, 15 Abb. Pr. 91, it was held by the general term of the First district that the reference might be dispensed with. That was, like the present, a proceeding under the Revised Statutes. Our attention has been called to the case In re Valentine, 72 N. Y. 185, in which case it was held that a reference to inquire into the facts was necessary, for the reason that the statute under which that application was made expressly required such a reference, (2 Edm. St. at Large, p. 54, § 2,) which is as follows: “On the presentation of such petition it shall be referred to a master. ” Comparing the two statutes referred to, it seems quite apparent that the legislature intended to make it discretionary with the court, in a proceeding for the sale of the real estate of an infant, whether to inquire into the merits of the application in a summary way, or to direct a reference. While the validity of such a proceeding depends upon an observance of the statute, yet a substantial compliance will preserve jurisdiction. The case last mentioned refers to Battell v. Torrey, 65 N. Y. 294. It will be perceived that the omission complained of in that case was the failure by the special guardian to report under oath an agreement for the sale, leasing, or other disposition, of the property of the infant. Such a report seems, from the facts of that case, to have been wholly omitted, and consequently there could be no confirmation by the court. That was held to be a material defect in the proceedings, and fatal to their validity. By referring to section 177 of the statute in regard to the sale of the real estate of infants before referred to, we see that such a report under oath, of an agreement by the special guardian, is required. The language referring to the agreement is: “The same shall be reported to the court on the oath of the guardian making the same.” In the case at bar the evidence shows that such a report was made, under oath, by the special guardian, in substantial compliance with such statute, which was confirmed by the court. The provisions of the statute under which those proceedings were instituted, in 1863, seem to have been substantially observed; sufficiently so to preserve the jurisdiction, and to render them valid and effectual to convey the title, in support of so clear an equity in favor of the purchaser. We think this case is clearly distinguishable from this case. In re Valentine, 72 N. Y. 185; Battell v. Torrey, 65 N. Y. 294, above referred to. We have not overlooked the case of Ellwood v. Northrup, 106 N. Y. 173, 12 N. E. Rep. 590, recently reported. From an examination of that case, we are convinced that the case at bar is as clearly distinguishable therefrom as it is in regard to the other cases referred to, and for the same reasons above assigned. It appears, by reference to that case, that the defect in the proceedings by which the sale was made, was the result of a disregard of the provisions of the statute, which are mandatory. The opinion, at page 184, contains the following: “Ho evidence whatever was offered of any compliance with the provision of the statute above set forth, except the presentation to the Jefferson county court of a petition for an order of sale, and the appointment of a special guardian to make such sale; the appointment of such guardian, and the execution by him of a bond and the approval thereof by the county judge.” In that case there was a disregard of the statute in reference to several provisions thereof which are mandatory, and which were at least substantially observed in the case at bar. The case of Cole v. Gourlay, 76 N. Y. 528, before referred to, specifically disposes of several of the objections taken to the proceeding in question, and the principle then enunciated, which received the approval of the entire court, seems decisive of this case. When the sale occurred, in 1864, the plaintiff was upward of 17 years of age, and reached majority in 1868; and, after the lapse of nearly 19 years since she became 21 years of age, brings this action against a bona fide purchaser of the premises, without tendering or offering to return the consideration money which she received therefor. Under such a state of facts, we are satisfied that she should be held to have ratified and confirmed the sale, which was made upon her petition, and by her procurement, and the fruits of which she has received and enjoyed. Crummey v. Mills, 40 Hun, 370; Medbury v. Watrous, 7 Hill, 110; Henry v. Root, 33 N. Y. 526; Lynde v. Budd, 2 Paige, 191; 1 Pars. Cont. p. 281. The case of Green v. Green, 69 N. Y. 553, was decided upon a state of facts which were peculiar.- The controversy was between father and son, and the delay in bringing the action of only about three years after the son became of age; and such shortness, and the delay in bringing the action, was referred to in the opinion as a circumstance bearing upon .the question of ratification. This caséis referred to in Crummey v. Mills, supra, as based, upon the peculiar facts of that case, and exceptional. We cannot regard this case, when applied to the facts of the case at bar, as adverse to the doctrine of ratification above stated. We discover no sufficient ground for a reversal of the judgment, and the same must be affirmed, with costs.

Landon, J., concurring.

Learned, P. J„

(concurring.) By the marriage, in 1856, of Martha F. Fonda, widow of John W. Fonda, deceased, and mother of plaintiff, the plaintiff and her brother, Philip W. Fonda, became vested in fee, as tenants in common, share and share alike, of the premises in question, either as devisees, or as heirs of their father, John W. Fonda. The clause, “to remain under the control of my hereinafter named executor, ” created no valid trust.. It may perhaps have had the effect of making Gardner guardian of the children during minority. But it gave him no estate. On the 1st of September, 1863, Philip W. Fonda, then of age, and Martha F. Holmes, formerly the widow of John W. Fonda, the latter describing herself as trustee of the plaintiff, conveyed the whole premises to one Spath, in consideration of $900. This gave Spath the undivided half which belonged to Philip, and purported also to convey the plaintiff’s half. Under this conveyance Spath went into possession of the whole. He lived on the property, made repairs, and paid taxes till he sold it. The deed was duly recorded in October, 1863. Passing over for the present the proceedings of December, 1864, we find that, on the 20th of September, 1865, Spath and his wife conveyed the whole premises to defendant Margaretta Funk, and the deed was recorded on the 22d. The plaintiff came of age in May, 1868, and on the 5th of May, 1884, she commenced this action of ejectment to recover the undivided half of the premises against Margaretta Funk and her tenants. If the deed of 1863 to Spath conveyed plaintiff’s title, she cannot recover. If it did not, then, at least, it made Spath her co-tenant. Being such, she must show, against him or his grantees, actual ouster, (Sharp v. Ingraham, 4 Hill, 116,) and cannot recover on mere proof of title. As the position which she claims is that of co-tenant, she alleges that Margaretta entered about September 21, 1865, to the exclusion of plaintiff, and so continues. Code, § 1515. The defendant admits such possession, claiming to be the lawful owner. Now it appears, as above stated, that Margaretta took title from Spath, and that Spath had been, from September 14,1863, in possession “under claim of title, exclusive of any other right, bounding his claim upon a written instrument, as being a conveyance of the premises in question.” He did not go in simply as a co-tenant under a deed from Philip; but he went in as an absolute owner of the whole, under a deed which purported to be a conveyance of the whole, executed by one Philip, and also by one who claimed to be the plaintiff’s trustee. I do not see, therefore, why the ouster of plaintiff did not commence when Spath took possession under the deed to him. If he had acknowledged her right, he would have been (on her own theory) a co-tenant, lawfully in possession. But he denied that she had any right after he received the deed. Whatever ouster, then, was done to plaintiff by defendant Margaretta, the same had been previously done by Spath. If this be so, the plaintiff’s right of action commenced when Spath, under the deed to him, excluded her from the enjoyment of her undivided half. Code, § 369. This was in September, 1863. The action must be commenced, by the general rule, within 20 years. Id. §§ 365, 368, 369. She was within the age of 21 when her cause of action first accrued, and remained- under this disability till May, 1868. These four years and eight months, therefore, are not part of the time limited for commencing the action. But the time limited cannot be extended more than 10 years after the disability cease. Id. § 375. This section does not shorten the 20-years limitation. Howell v. Leavitt, 95 N. Y. 617. But in the view above expressed the 20-year limitation expired in September, 1883. To illustrate, let us suppose that when Philip and Mrs. Holmes conveyed to Spath, in September, 1863, the plaintiff had been of full age; and that Spath had gone into possession, claiming title under a deed which purported to convey her share, as well as Philip’s, and that he had continued in possession in this manner. If she had commenced an action of ejectment, could Spath, in the face of his deed and his acts, have successfully claimed that he was only co-tenant in possession, and was recognizing her right? If not, then there was ouster enough to give a right of action. The plaintiff’s infancy only extended the time for commencing' the action. It did not affect the question when the right commenced. The plaintiff insists that the statute of limitation does nob run during a life-estate. It is true that possession during the continuance of a life-estate does not begin to be adverse, as against a person entitled after the life-estate, (Fleming v. Burnham, 100 N. Y. 1, 2 N. E. Rep. 905;) for the plaintiff has then no right of action to recover the possession. But the life-estate of Martha F. Fonda ceased under the terms of the will in September, 1856, by her marriage. After that time the plaintiff and her brother were owners in fee. Even the clause about the control of the executor had become inoperative in December, 1854, when Gardner was removed from his office. Of course this is a question purely legal, yet I may say that all the equities are against the plaintiff for reasons which it is unnecessary to mention. I therefore concur in the result of the opinion of my Brother In-galls.  