
    Jackson, ex dem. Bogert and others against SCHAUBER.
    NEW YORK,
    A direction in a will to executors to sell lands, to pay legacies, and distribute the residue, does not break the descent to the heir at law; though he be expressly out off by a disinheriting legacy, and a declaration in the will that he shall take nothing as heir. Otherwise, if the land be devised to the executors to sell.
    To cut off the heir at law, the estate must be devised expressly, or by implication, to some other person.
    A devise that executors shall sell, confers merely a naked power without interest.
    The court will not, nor is a jury authorized to presume a conveyance by the executors and a continued outstanding title, as between the heir and a mere intruder without pretence of title, even after the lapse of more than forty years’ possession.
    
      Ejectment for land in Saratoga county; tried at the . ■ o j i circuit m that county, June 1, 1826, before Walworth, n -r v> Jua&e-
    
      A mortgage of more than 20 years standing, on which no interest has been paid, and under or upon which there has been no entry or foreclosure, is not such an outstanding title as will bar an ejectment by the mortgagor or his heirs.
    Courts will not countenance presumptions of outstanding title in favor of a mere intruder without pretence of title.
    At the trial, the plaintiff claimed title under a patent covering the premises in question, dated September 10th, 1708, to William Appel; one half of the premises declared to be in trust for the heirs of H. Hrigedoodn. The lessors of the plaintiff claimed title as heirs at law of the patentee; and proved themselves to be the lineal *descendants of Simon Appel, his son. Peggy Bogerty one of the lessors, claimed as the heir, and also under the will of Mrs. Pelts, her grandmother, dated in 1795, who removed to Albany during the revolutionary war, and afterwards died there. The husband of Mrs. Bogert was a practising lawyer for a number of years in the city of Albany. Mrs. Pelts declared that all she had was two houses in Mew York, for which she received rent.
    On the 17th of July, 1729, Wm. -Appel, the petentee, made his will, naming four children living, and one dead. The will made no mention of his wife. It appointed Johannes, his son, executor, and his daughter, Engetje, executrix, with power to sell his real and personal estate. After the testator’s death, August 9th, 1738, Engetje renounced, and letters testamentary issued to Johannes on the same day. By this will, the testator bequeathed to Simon," his son, the lessor’s ancestor, 20s. for his birthright, to be raised and levied out of the testator’s estate; “ wherewith,” (the will proceeded) “ I do utterly exclude, debar and preclude him, my said son, from having or claiming any other or farther pretensions, claims and demands whatsoever, as being my heir at law; or by any other pretexts, color or show whatsoever.” He then gave to his sons Simon and Johannes, certain wearing apparel, and other legacies to the latter; with legacies to his other children. The will then empowered and directed his executors to grant, bargain, sell and dispose of all the residue of his real and personal, movable and immovable estate, &c. ,in the city .of New York, or elsewhere, to a,ny person or per-g(jng ^hatsoeyer, at public vendue, .or otherwise, as to his executors should.seem necessary and convenient*; that their conveyances of the whole, or any part, should' be deemed valid and effectual in -the law, to all -intents, .&&, as if he had himself bona fide sold the same; the proceeds to be appropriated to the payment .of the pecuniary legacies; and the residue he bequeathed 1-5 to Simon, and the other 4-5 among his other children and a grandchild. This will was read in evidence by .the defendant’s counsel.
    *On the 4th of August, 1713, Appel, the patentee, released -the east half of the patent to the .heirs of Hrigedoodn, pursuant to the trust declared in the patent, .On the 12th of June, 1733, he mortgaged his own, (the west half) in fee to Reneaudet, Bancker and Rutgers, -to secure the payment of £108 10s. -in one year, -with covenants to pay the money, and of seisin; also of quiet enjoyment, if default should be made -in payment of the -money. This mortgage, more than -20 years before the trial, had been sent by a grandson of Bancker, one of -the mortgagees, to L. H. Palmer, Esq., attorney at law, in the county of Sara-toga ■; and was afterwards .delivered by Philip Brotherson, who married one of the heirs of Rutgers, another • of the mortgagees, to Pioneer, .one of the lessors of the plaintiff. The mortgage was offered in evidence by -the plain.tiff’s counsel; and received, though objected to by the defendant’s counsel.
    The counsel for the plaintiff read in evidence, under the decision of the judge, though objected to, an arbitration bond, dated November 13th, 1767, between Mrs. Pelts and one Eillmon, reciting that John Appel, deceased, late of the city of New York, to secure £5,0 to Eillmon, had mortgaged to him in fee a house and lot in .the city, (described in the bond,) and that the mortgagor afterw.ards borrowed of Eillmon £20, for which he gave his bond ; and (as EiUpaqn insisted) agreed that the mortgage should stand as security -for the £20 ; that Eillmon had brought an ejectment for the mortgaged premises against Mrs. Pelts, who, for herself and others claiming under ¥«, Appel’s will, insisted that the premises, in virtue of the will, belonged to her and those for whom she claimed, in law or equity; that the mortgagor purchased a mortgage on the premises, with money belonging to them and him, and in trust for all claiming under the will of Wm. Appel; that Killmon insisted that the title was legally vested in John Appel, the mortgagor, who had long possessed the premises as his own estate ; Killmon having no notice of the * trust, if there was any. The bond then stated the submission of the controversy to arbitrators.
    The defendant’s father entered on the premises in question about 50 years, and died in possession about 20 years before the t? ial; his son and only child, the defendant, succeeding the possession. The defendant’s counsel offered to show that the father devised the premises to the son; and to prove the devise by a notice from the plaintiff’s attorney to produce the will on the trial; but this was overruled, the will not being dated, and the son not having been in possession 20 years before the suit was commenced; and the will being void, as not altering the course of descent. The father had bestowed valuable improvements on the premises. But the evidence was very satisfactory against his possession being adverse.
    The defendant’s counsel insisted, that the above matters proved that the patentee had parted with his title in his life-time; and were, at any rate, sufficient to be left to the jury, to presume, either that the patentee, in his life-time, or his executors since his death, had conveyed all his interest in the patent. They prayed the judge to instruct the jury accordingly. This he declined to do ; charging in favor of the plaintiff.
    The defendant’s counsel excepted to the various decisions against them, made by the judge in the course of the cause.
    
      S. G. Huntington, for the defendant,
    moved for a new trial. He said, by the will of the patentee, the legal estate, vested in his executors, for the purposes expressed in the will. This construction is fortified by the strong words used in it, manifesting, and indeed expressing the purpose ^ ^ 0f£ any descent to Simom, under whom the lessors claim. Cowp. 657. 1 Bro. Civ. & Adm. Law. 337. 3 Burr. 1684. 5 B. & A. 785. 6 Cruis. Dig. tit. 38, Devise, ch. 11, s. 76, &c. 1 Ves. Sen. 485. 2 Str. 798. 1 P. Wms. 472. 6 Co. 16. 2 Vern. 687. Rob. on Wills, 431, note. 1W. Bl. 543.
    *If this is not the true construction of the will, we contend that upon the evidence produced, it should have been left to the jury to presume that the patentee in his life-time, or the executors pursuant to his will, had sold and conveyed all his interest in the patent.
    The mortgage created an outstanding title. As the law then stood, the mortgagor, could not retain possession a moment without a covenant to that effect. You cannot presume it satisfied. This is never done upon lapse of time, unaccompanied with possession in the mortgagor. The legal possession was in the mortgagee; because the title was there. (2 Bl. Com. 158. Pow. on Mort. 408. id. ch. 11. 2 Cruis. Dig. 76, s. 3. 2 Bl. Com. 159, note. Eq. Cas. Abr. 313. 2 Bro. C. C. 399. 2 Cruis. Dig. 152, 162.) The rents and profits of the estate would go to the executors. (4 John. Ch. Rep. 388. 6 Cruis. Dig. 537, Devise, ch. 20. s. 40.)
    The jury had a right to presume a conveyance or extinguishment of the patentee’s title. (Sugd. L. V. 285, 295. 2 Bl. Rep. 1228. 11 Ves. 350.)
    The power devised to the executors was coupled with an interest. (Toll. L. E. 413. 6 Wheat. 504. 7 id. 59, 109. 8 id. 495, 535. 10 id. 177, note.(a) 12 Ves. 261, 266. 13 John. Rep. 513.)
    
      L. H. Palmer and J. L. Wendell, contra.
    The question whether Simon was cut off from the inheritance, turns on the distinction between a devise of a mere power to the executors, and the devise of an estate. (1 Caines’ Cas. Err. 16.) To disinherit the heir, the estate must pass either expressly or by implication. (9 John. 104.) And there is no application, unless it be necessary to effectuate the objeets of the power. If the mode of executing the and the object, are both provided for expressly, there is no room for implication. Here every thing is expressed. And until the. power was executed, the estate descended to the heir at law, Simon. (6 Cruis. Dig. tit. 38, Devise, ch. 11, § 76, § 7, p. 198, last ed. 3 Burr. 1684.)
    Till an entry or foreclosure, the mortgagee's interest is merely personal estate. The mortgage is but a security for the debt. (5 Cowen, 202. 4 John. Rep. 43, 590. 8 Ves. 105. 7 John. 278.) An outstanding title, to be available, must be a subsisting one; and it cannot be set up by an intruder. 5 Cowen, 131. 4 T. R. 682. 4 John. 202. 3 John. 375.)
    There is no room for presuming any title in the defendant. Neither he nor his ancestor has ever claimed any. The mortgagees claim none. There is no room to presume a conveyance by' the executors. No cestuis que trust are named by the will." Indeed, there is nothing in the case which brings it within the rules authorizing a presumption of conveyance in favor of this defendant. (5 Ves. 565. 8 id. 129. 12 id. 239. Cowp. 102, 214. Runn. on Ej. 343.) Where the plaintiff shows a good title, every presumption is in his favor; and against an outstanding title. (3 John. Rep. 375, 386. 6 id. 266. 10 id. 223, 381, 387. 11 East, 372. 2 John. Cas. 353.)
    
      A. Van Vechten, in reply.
    It is plain from Wm. Appel’s will, that he intended his heir should take no estate as heir. He is expressly excluded, and a legacy is devised as a consideration for the exclusion. The intent should always govern in construing a will; and if it can legally be carried into effect, it is the duty of courts of justice to see that this be done. The legacy to Simon was to be paid by the executors out of the proceeds of the real and personal estate, on sale; and a legacy is given to one of the executors to be raised in the same manner. The charge of the legacies was a joint charge on both real and personal estate. They were to be raised out of both. On sale, a distribution was to be made of the residue after paying the legacies. Can it he said that here was not an interest vested in the executors ? The testator intended to leave no part of his estate undisposed-of. Ho part was intended to descend; .and it follows that the whole was vested in the executors. The intent cannot otherwise be effected; and there is no legal objection to such aconstruction. The estate passed to them by implication of law: ^because this is necessary .to effectuate the intent. I know there are different opinions expressed on this -subject by different writers; b.ut the law has finally settled down upon intent, and the means .of effecting it, as the true .tests (Toll. L. E. 828, 329. Vin. Abr. Implication, (A,) and the cases there cited.
    It was not -necessary that .the executors should accept their trust as such, to enable them to sell .the real -estate." They acted as .mere trustees. They were required to sell. It should, therefore, have been left to the jury to presume that they had conveyed. 1 Caines’ Rep. 84, and the cases there cited. 1 Taunt. 279; 4 Burr. 1962.
    He also cited Niven v. Belknap, ( 2 John. 573.)
   Curia, per Savage, Ch. J.,

(after adverting to the question of pedigree, which he considered fully maintained by the plaintiff; also that there was no adverse possession.) The only questions to be decided are, whether the judge at the circuit was correct in receiving and rejecting testimony; and whether, from the testimony received, the jury would have been justified in finding, or presuming the title out of the lessors.

The defendants counsel contend that, by the will of William Appel, the legal title to his real estate vested in his executors, for the purposes expressed in the will. (The chief justice here recited its provisions.)

1, The question which first presents itself, is, in whom did the real estate vest on the death of the testator ? Was it in the heir at law, or in the executors by virtue of the will?

This question cannot be better answered, perhaps, than it has been by Kent, justice, in Bergen v. Bennet, (1 Cain. Cas. Err. 15, 16.) Hé says¡ “ if a man, By his will,- directs his executors to sell' his land, this is but a- bare authority without interest; for the land, in*the mean time, descends to the heir at law, who, until the salte, would, at common law, be entitled to the" profits; and being but a naked authority, if one executor dies; the power," at common law; would not survive. But if a man devises his *land to his executors, to be sold, then there" is a" power coupled with an interest; for the executors; in the mean time, take possession of the land, and of the profits: In this case, as the estate, so also the trust, would survive to the surviving executor.”

This rule is to be found" in Co. Litt. 113, a. and 236, b. The rule has, however, been questioned by Hargrave, in his note on the first citation; though his remarks apply more particularly to what is said as to the power surviving. It is admitted by him, too, that in respect to the operation of such a devise, considered as mere" authority, the strict notion about naked powers is certainly with Lord Coke.

Powell, in his treatise on devises, (p. 193,) takes a distinction between a direction in a will that the executors shall sell the real estate, and a devise" to the executors, of the real estate, to sell. In the one case, a" naked authority is given: in the other, an authority coupled with an interest. In the former case, the freehold remains with the heir, until a sale by the executors. In the latter, the ireenold vests at once in the executors.

It is a cardinal rule in the construction of wills, that the intention of the testator, when that is apparent, shall" prevail, if apt words are used for that purpose.

In the case of Oates v. Cooke, (1 Bl. Rep. 543; 3 Burr. 1684, S. C.,) an estate in fee was held to pass to a trustee by necessary implication; he being charged By virtue of the estate, with the payment of annuities in fee, and some of them to the heirs at law. Lord Mansfield said the intention is to be collected from all the parts of the will; and it must be clear, or else the heir at law shall not be disinherited.

In Gibson v. Lord Montfort. (1 Ves. Sen. 485,) the testator devised all his estate, freehold, leasehold, &c., to trustees, their executors, &c. It was decided by Lord Hardwicke, that the word “ heirs" is not necessary to carry a fee; for trustees have a fee when the purposes of a trust cannot be answered otherwise. He observed that by plain, necessary implication and construction, the estate was given away from the heir at law.

*So an estate may undoubtedly pass by implication, as in Willis v. Lucas, (1 P. Wms. 472,) where an estate for life was devised to S.; and after the death of S. and his wife, then to the sons of S. The wife took an estate for life, by implication.

The two last cases were in equity. They determine the quantity of estate which shall pass by acknowledged words of devise. But the question in this case is, whether the will contains words tantamount to a devise; or whether a mere naked power is not given, which does not interfere with the descent until the power is executed.

In Denn v. Gaskin, (Cowp. 957,) the testator devised thus: “ As to all such worldly estate as Hod has endued me ■with, I give and bequeath as followsHe then gives a certain freehold messuage to his three nephews ; then small legacies to sundry persons; and then gavd to John Haskin, (his heir at law, and the lessor,) ten shillings; and all the rest to his nephews. It was held that the nephews took only a life estate; as the law implies a life estate only, when there are no words of limitation, and there must be words in a will to control the rule of law, or the latter must prevail. Lord Mansfield said that no technical words are necessary, provided there are words tantamount; that, in the case, there were circumstances from which he suspected the testator intended to give a fee to his nephews; he had made them residuary legatees of his personal estate, and had given a disinheriting legacy to his heir at law, agreeably to the vulgar notion that an heir is cut off with Is. But as the will did not contain words sufficient to take the estate out of the rule of law, it must go the heir, after the expiration of the life estates. He added, that though the intention is ever so apparent, the heir at law must of course inherit, unless the estate is given to somebody else.

The case of Ackland v. Ackland, (2 Vern. 687,) was an express devise to Eichard, of all the testator’s estate, making him executor, and desiring him to pay debts and legacies. The words “ all his estate,” especially subject to *the payment of debts and legacies, were probably held sufficient to convey the fee.

The case of Houell v. Barnes, (Cro. Car. 382,) was this: the testator devised lands to his wife for life, and after her death, ordered his executors to sell them, and divide the money among his nephews. Two questions were raised : 1. whether the executors had an interest, or only an authority ; 2. whether the surviving executor had any authority to sell. And it was decided that the executors had not an interest; but only an authority; and that the surviving executor might sell. So the law was understood by Cruise, (Dig. tit. 38, s. 24.) Speaking of a direction to executors to sell, and a devise to executors to sell, he says, in the latter case, the lands vest in the executors; in the former, they have only a bare authority.

There are cases in this court, where the doctrine of such devises is partially discussed; which were not upon the question in whom the estate vested; but whether the power to sell wan well executed by one of several executors. 14 John. 527; 15 id. 345. But in Jackson v. Burr, (9 John. 104,) the question was, whether the devise of the real estate was to the executors, or they had power to sell only. The testator directed his executors to discharge his debts out of his interest and estates; and what remained he divided in a certain manner; and then added, that as it was uncertain what the estate might be worth, he directed an appraisement: and then the payment of his debts and funeral charges; and if the property amounted to more than he had given; his legatees-whereto receive the' surplus in the same proportion as-their legacies-; and if less, then they were to receive less in' the same proportion: and-also'that the heirs were to' receive their proportion in lands,- goods and chattels left' at his decease. ■ The" will; was dated in-February, 1784. In 1812, one of the heirs at law brought ejectment against one of- the executors who was in possession. On his behalf, it was argued, that the executors took the estate as a devise in fee, charged with the -payment of the legacies; and, at all events, they were entitled' to possession under the will. *The court held there was no devise of the real estate; the most that could be deduced from the will- was, that the executors had power- to sell the land; and if that were so, the land in the mean time, and- until the sale, would descend to the heirs' at law.

The subject discussed in several authorities to" which- we have been referred, (Toller, 414, 2 P. Wms. 550, 1 Br. C. C. 135, 2 Fonb. 402,) is'not to whom the legal estate descends ; but whether the proceeds of the property sold under the naked power, or the power coupled-with' an- interest, shall be legal or equitable assets in the hands of the executor. In Toller, it is said that even in the' case of a mere power on the part of the executor to sell, the descent seems to be broken, inasmuch as the vendee is in by the devisor. The same remark was made by Lord Coke. The descent being broken, here evidently pre-supposes a Conveyance by the executor; and there indeed the descent is broken. But the question■ we are now' considering is, what becomes-of the estate" before any conveyance by the executor"? Suppose the executor refuses to" act under' the authority to sell; can he take possession and hold it until it may suit his convenience to sell, or until compelled by a court of chancery ? I think not; The weight of authority undoubtedly is, that' when the executor has but' a naked power to sell,.the estate descends to the heir, and remains in him liable to-be divested by-a sale- under the power. But if the power is never executed, the fee re-mams m the heir.

It is objected that the testator excluded the heir, in express terms by ms will. The answer is, he has given the estate to nobody else. Then what becomes of it ? whose pTOperty js ft ? Lord Mansfield says, “ though the intention” (to disinherit) “is ever so apparent, the heir at law must of course inherit, unless the estate is given to somebody else.” (Cowp. 661.)

My conclusion, therefore is, that the real estate of William Appel, upon his death, vested in his heir at law, Simon Appel.

*The lessors, then, have shown title in the patentee; they have shown that they are the heirs of the patentee; that the course of descent was not necessarily broken by the will of the patentee; and that the defendant is not protected by an adverse possession. They are therefore entitled to recover, unless the title has passed from the heirs of the patentee; or stands out upon the mortgage, and the defendant is entitled to avail himself of such defence.

2. His counsel do not claim to have shown positively an outstanding title; but that it is to be presumed from the facts and circumstances in the case. When the law entrusts persons with the execution of a power, the court will presume in favor of the execution of that power; and hence it is contended that the jury were authorized to presume a sale and conveyance by virtue of the power in the will. This presumption is strengthened by the arbitration bond produced on the part of the plaintiff, whereby Mrs. Pelts claims an interest in certain property, the legal title to which was in John Appel, on the ground that it was purchased with money which he received as trastee under the will of William Appel.

The doctrine of presumption was fully discussed by Lord Erskine, in the case of Hillary v. Waller, (12 Ves. 254.) He says, “ the presumption in courts of law from length of time, stands upon a clear, principle, built upon reason, the nature and character of man, and the result of human experience. It resolves itself into this: that a man will naturally enjoy what belongs to him. That is the whole principle.” He then proceeds to enumerate cases in which it applies; as a right of way, the use of water and light; a bond on which nothing has been paid for 20 years, when a presumption of payment exists, unless repelled by circumstances. He adds, “ It is said you cannot presume unless you believe. It is because there are no means of creating belief or disbelief, that such general presumptions are raised upon subjects of which there is no record or written muniment. Mankind, from the infirmity and necessity of their situation, must, for the preservation of their property and rights, have recourse to some general principle, *to take the place of individual and specific belief; which can hold only as to matters within our own time ; upon which a conclusion can be formed from particular and individual knowledge. But this is all nothing, when it can be seen that the possession was provided for,” &c. The case to which these remarks were applied, was that of a bill praying specific performance of an agreement by the defendant to purchase a farm of the plaintiff. The defendant objected to the title, as I understand it, because the whole estate was conveyed in trust in 1664; one half to be re-conveyed upon a certain contingency at the expiration of 11 years. It was admitted that the possession had been with the plaintiff, and those under whom he claimed, for 140 years; but it was insisted that the legal estate was outstanding upon the trusts of the conveyance of 1664. Ld. Erskine presumed a re-conveyance, and compelled the defendant to take the title. This decision, Mr. Sugden says, did not meet the approbation of the bar. (Sug. L. V. 250.) But the doctrine of Lord Erskine upon presump ^Qng generaj¡y} pas been approved by the supreme court of the United States, in Prevost v. Gratz, (6 Wheat. 504,) where a trust was presumed to be extinguished after a lapse of 40 years, and- the death of all the parties. Mr. Justice Story says the safe course is, to abide by the rule of law, which, after a lapse of time, will presume payment of a debt, surrender- of a de.ed, or extinguishment, of a trust when.circumstances may reasonably justify it. The same subject, was again discussed by that learned judge, in the case of Ricard v. Williams, (7 Wheat. 109.) Speaking of presumptions, he says, “they are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in the party in. possession. They may, therefore,- be encountered and rebutted by contrary presumptions; and can never fairly arise when all the circumstances are perfectly consistent with the non-existence of a grant. A fortiori, they cannot arise vvhen the claim *is of such a nature as is at variance- with the supposition of a grant.”

There are many cases where courts have presumed conveyances in cases of trust. (4 T. R. 682. 11 John. 45, 46. 1 Caines, 88,)

The. doctrine of presumption, as it relates to bonds, and to a mortgage, has frequently been agitated. In Baily v. Jackson, (16 John. 214,) it is said, that after a lapse of 20 years, a mortgage will be presumed to be satisfied where the mortgagor has been in possession, and no interest has been paid, nor any step taken to enforce, the mortgage. In the case of Jackson v. Pratt, (10 John. 381,) payment was presumed in 19 years. It is always proper, however, to rebut presumption by circumstances explanatory of the laches of the. party against whom the. presumption arises.

In this case there is strong, ground to presume an execution and extinguishment of. the trust, and, of course, a conveyance of the title to the premises in question to somebody. But when, to.whom, or under what circumstances, we are totally m the dark. And if we presume a sale and " n ,. conveyance by the trustee, and so an outstanding may we not also presume that title extinguished ? The principle of presumption is, that every man will enjoy what belongs to him: and if he neglects to reduce it to possession in a reasonable time, he will be presumed to have surrendered it up, if real estate; or received payment, if a bond or mortgage.

In this case, the same facts which would authorize a presumption of an outstanding title, will also justify the presumption of an extinguishment of that title.

3. The mortgage in this case, upon the same principles of presumption, cannot be considered an outstanding title. Besides; it comes from the hands of the lessors of the plaintiff.

4. The plaintiff’s counsel contend that there is not sufficient evidence to presume the plaintiff’s title extinct; and further, that whether there is or is not, the defendant is not at liberty to set up an outstanding title to protect himself.

*If a defendant undertakes to show title out of the plaintiff, he ought to show where it is, that the court may see that it is a subsisting title; otherwise, the presumption will be, that it is extinguished. This was so decided in Jackson v. Hudson, 3 John. 286. The language of the court is, if a defendant sets up an outstanding title, existing in a stranger, it must be a present subsisting title; it must be one that is living and operative; otherwise the presumption will be, that it has become extinguished.

In Jackson v. Harder, (4 John. 211,) the defendant offered to show an outstanding title subsisting in some third person. The defendant was an intruder; and Kent, Oh. J., who delivered the opinion of the court, says, “ The first question which presents itself here is, whether a mere intruder can be permitted to protect his intrusion under an outstanding title in a stranger. I think not. The rule has never been carried so far; and it would be a violation of just principle, to apply it to the case of a tresspasser who enters upon another’s possession without pretence of title.” He next inquires whether the title offered to be set . up was a subsisting title. It was stated to have been acquired under a judgment, more than twenty years before the trial. He said, the rule is, that when upwards of twenty years of adverse possession has run against an outstanding title, it shall not be set up ; the presumption being that it is no longer a subsisting title.

That the title set up as outstanding must be a subsisting one, there is no doubt. Jackson v. Todd, 6 John. 265, 266. The mortgage is not in this case a subsisting title; for the mortgagee never entered. There has been no payment of interest for twenty years, and no foreclosure. Collins v. Torrey, 7 John. 288. In the case of Jackson v. M'Call, (10 John. 880, 881,) the reason given why courts indulge presumptions is, “ for the purpose of quieting the possession, and not because the court really think the fact presumed, exists.” But will a court think it their duty to quiet the possession of a mere intruder against the legal title, by presuming an outstanding title ? Under the circumstances of this case, we are not called upon to presume *anything in favor of the defendant. His entry was avowedly without right or pretence of right, or even license from any one.

Had the evidence of an outstanding title been such as to justify the jury in presuming it to exist, it would undoubtedly have been proper for the judge to have submitted it to them. But if the evidence was insufficient in itself, or the defendant was not entitled to the benefit of such a defence, the judge was correct in refusing to leave the' question to the jury.

On the whole, I am of opinion that the motion for a new trial must be denied.

Mew trial denied. 
      
       To deprive an heir at law, or a distributee of what comes to him by operation of law, as property not effectually disposed of by will, it is not sufficient that the testator, in his will, has signified his intention that such heir or distributee shall not inherit any part of his estate. But to deprive such heir or destributee of his share of the property, which th.e law gives him in case of intestacy the testator must make a valid and effectual ■ disposition hereof) to some other person. Haxtun v. Corse, 2 Barb. Ch. Rep. 506.
     
      
       In construing powers, the end and design of the parties, andthe substantial, rather than the literal execution of them, is to govern. Thus, where the intention requires it, a power limited in its term hasbeen deemed a general power, and a general power deemed to be for a particular purpose. Wilson v. Troup, 7 Johns. Ch. Rep. 32. S. C., 2 Cowen, 195.
      A power to executors, to sell lands for special purposes, gives them authority to sell only for those purposes. Floyd v. Johnson, 2 Lit. 115.
      In the construction of powers of sale contained in a will, the intention of the testator is much regarded. Osgood v. Franklin, 2 Johns. Ch. Rep. 1; S. C., 14 Johns. Rep. 527.
      A power to locate and survey does not give a power to sell. Moore v. Lockett, 2 Bibb, 69.
      A general-power to sell, is not restricted by modes of selling pointed out specifically, which do not necessarily abrogate or confine the general power. Vanada’s heirs v. Hopkins, 1 J. J. Marsh. 288.
      A power to “ sell," silent as to the execution of bond, or deed, or other writing, is nugatory, unless ex vi termini the agent has power to bind his principal by writing, to make the purchaser a sufficient deed upon the payment of the purchase money. Ib.
      A power “to sell" land, implies a power to bind the principal to convey with general warranty, unless there be restraining words. Ib.
      Testator, by his will, after a specific bequest, gives the residue to his wife for life, and at her death, “ to the nieces of my wife, in such manner, and at such time as my said wife shall think proper." Held by the court, that the power of disposing waS'not given to the wife, that she had no right to divest the legacies so given, nor disturb the equality of the portions which the will vested in the nieces, but merely to fix on the “time" and manner of enjoyment ; and that a niece of the husband, not being within the description of those named in the will, could not take by the appointment of the wife. Chesnut v. Champion et al., 2 Hill, 608.
      ' In construing powers, the end and design of the parties, and the substantial rather than the literal execution of them, is to govern. Thus, where the intention requires it, a power limited in its term has been deemed a general power, and a general power deemed to be for a particular purpose. Wilson v. Troup, 7 Johns. Ch. Rep. 32.
      A power to executors to sell lands for special purposes, gives them authority to sell only for those purposes. Floyd v. Johnson, 2 Lit. 115.
      A power to executors, “to sell or exchange his-(testator’s) real estate, as they might judge necessary forthe advantage of his estate," isa naked power, and must be executed by all the executors. Wooldridge v. Watkins, 3 Bibb, 350.
      A power in a will to executors to sell, is a naked power, and gives neither right of property nor right of action. Jameson v. Smith, 4 Bibb. 307.
      A power to sell real estate for the payment of debts, is a power coupled with an interest. Peter v. Beverly, 10 Peters, 532
      
        Powers in a will are to be so construed as to carry into effect the intention of the testator. Peter v. Beverly, 10 Peters, 532.
      It is the possession of the legal estate, or a right in the subject over which, the power is to be exercised that makes an interest, although no way bene-, ficial to the grantee of the power. Ib.
      It seems that a mere direction in a will to executors to sell land, without any words vesting in them an interest in the land, or creating a trust, will be only a naked power, which does not survive. Thompson, J. Ib., 564.
      But when anything is directed to be done in which third persons are interested, and who have a right to call on the executors to execute the power such power survives. Ib. 3 Am. Ch. Dig. tit. Powers, p. 233, et seq.
      
     
      
       Mere neglect of the owner, for any length of time, will not raise the pié sumption; there being no adverse possession against him. Schauber v. Jackson, ex dem. Bogert, 2 Wend. 13. Doe, ex dem. Marston v. Butler, 3 Wend. 149. There being no adverse possession, the heirs of the true owner recovered even against an escheat grant, though they or their ancestors had made no claim for 100 years. Hall v. Gitting's lessee, 2 Har. & John. 112, 125, 126. So where the one in possession has no title, and asserts none. Richard v. Williams, 1 Wheat. 59, 109, et seq. And accordingly where one has title to the whole and possession of part, this is a possession of the whole ; and no presumption of a grant can therefore arise in favor of another who is tortiously in possession of the same land concurrently with the true owner. 
        Hammond v. Ridgley, 5 Harr. & John. 216, 264, 265. The possession must be positively and unequivocally adverse. Even possession and receiving rents, offers to sell, or partial sales effected, may as well be acts of a tortious possessor, or of an agent, as of one claiming title under the real owner. Delancey's lessee v. M’Keen, 1 Wash. C. C. R. 354, 359, 360, et seq.; and distance and disabilities in the owner are to be considered and allowed; (id.;) and an adverse character in the possession may be done away by surrender, acknowledgment of the owner's title, or by a discontinuance of the possession, &c. Holtzapple’s lessee v. Phillibaum, 4 Wash, C. C. Rep. 356, 363. Where a widow held a parcel of her husband’s estate for nearly 30 years, under a deed in fee from one of the heirs; held, in an action by another of the heirs for an undivided portion of the same land, it could not be presumed that she claimed as tenant in dower, so as to raise the presumption from an acquiescence of the demandant in so long possession, that there was a regular asignment of dower. Hale v. The Inhab. of Portland, 4 N. H. Rep, 77. A title to an undivided portion of land cannot, unless in a very strong ease, be acquired by concurrent possession, or acts of ownership, while the real owner is in possession. Waldron v. Tuttle, 4 N. H. Rep. 371. So of a trustee as against his cestui que trust, as will be seen post, note 301. Per Nott, J., in Howard v. Aiken, 3 M’Cord, 468, S. P. So of a vendee in possession under an agreement to convey; but not having paid the purchase money. Richards v. M’Kie, 1 Harp. Ch. Rep. 184 The court refused to found the presumption on a claim of constructive possession under a deed, the description in which did not clearly include the land. Gibson v. Chappel, 1 Harp. Rep. 28. Nor will a grant of land to a certain boundary, by one claiming beyond it, be received as ground for a presumption that he had released all beyond, especially where he had since conveyed land lying beyond. Jackson, ex dem. Van Schaick v. Vincent, 4 Wend. 633, See also Palmer v. Hicks, 6 John. Rep. 133, 135; Per Robertson, J., in Fitzhugh v. Croghan, 2 J. J. Marsh. 436 and per Marshall, Ch. J., 7 Wheat. 546.
     