
    Third Department,
    May Term, 1896.
    Lena R. Boyer and Others, Respondents and Appellants, v. Sydney S. Decker, as Executor, etc., Appellant and Respondent.
    Judgment affirmed, with costs to both parties out of the fund.
   Landon, J.:

We do not think the defendant 'should be heard to challenge the validity of the sixth clause of the will of Samuel Stevens. The will was admitted to probate thirty years ago. Mr. Shearer, the defendant’s testator, the executor and trustee therein named, assumed the will to be valid, aud twenty-four years ago, pursuant to its terms, sold the real estate devised by it. The will directed him to keep the proceeds until twenty-one years after the testator’s death and then pay them to the persons indicated by the will. The plaintiffs are the persons thus indicated. Shearer, the trustee, is now dead, and the fund is in the hands of the defendant, his executor. Until this action was brought no one ever questioned the validity of the will. Its validity could only be challenged by the two sons of Samuel Stevens, his only heirs, who were adults when their father died. One of them is the father of the plaintiff Lena R. Boyer and the other the father of the other plaintiffs. The sons seem to have acquiesced in the will. If now they should change their minds, they must rely upon their title as heirs to the land, which title is apparently harred by the Statute of Limitations. If the will is void, it never affected their title to the land; if it is good, its terms exclude their resort to this fund. In either event they are not necessary parties to this action. Assuming that the two sons should bring ejectment for the land and recover it of the purchasers — an improbable event — the latter would have no recourse except upon the covenants in the executor’s deed to them, and as none are Shown, the defendant should not keep this fund on that account. The will was valid enough to enable Shearer, the trustee, to realize the fund from the estate as directed by the will in trust for these plaintiffs. He never had any title to the fund except as trustee. He took the benefits and burdens together. No valid reason is shown why the trust should not he performed by payment pursuant to its terms. No adverse claimants are shown to exist. The defendant has shown nothing that exposes him to risk. There is no need* of the circuity of appointing a new trustee. The defendant has the fund; its amount has been determined; he has no better right to retain it than his testator had, and he should pay it over as directed by the judgment. The judgment should be affirmed; but as the sixth clause of the will, which gives rise to this contest, seems to be so framed as to invite challenge, costs of both parties are allowed out of the fund. All concurred, except Herrick, J.,not sitting.  