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of on the 3d day of December, 1874, leaving a last will and testament, upon which letters testamentary were duly issued to Hugh Lunny and Patrick Doherty on the 17th day of March, 1875. The fifth clause of the will, the construction of which is to some extent involved in this litigation, was as follows:

"I give and bequeath unto my executors to be hereinafter appointed, the rest, residue and remainder of my personal and real estate, in trust, neverthe less, and I do hereby by this my last will and testament, authorize my executors hereinafter appointed to rent, sell or dispose of the rest, residue and remainder of said real estate, either at public or private sale as they may deem most advantageous to my estate and to execute good and sufficient deed or deeds for the same and to place the residue of the money after paying my just debts as hereinbefore directed arising from such sale or sales, at interest and to pay to my said wife so long as she shall remain my widow, such income arising therefrom for the support and maintenance of my said infant children, during their minorship or infancy.

"And after the said Margaret Dougherty shall cease to be my widow, I give and bequeath to my said children Patrick Dougherty, John Dougherty and James Dougherty, equally, share and share alike, all the estate, both real and personal, that may remain in the hands of the said executors at the time the said Margaret Dougherty shall cease to be my widow.

"And I do also authorize and direct my said executors in case of the sale of any real estate, as already provided for, to sign, seal, execute and deliver good and sufficient deed or deeds of conveyance in the law for conveying the said real estate to the purchaser or purchasers thereof."

The premises in question fell within the residue of the estate disposed of by the fifth clause of the will. The plaintiff claims title under a sale by the executors. The defendants are the sole surviving issue of the testator, and they claim title under the will, upon the theory that there was no sale by the executors, and that the trust was termi nated by the death of the widow on the 24th day of January, 1888. A sale of the premises at public auction was advertised in the Empire State Journal, of White Plains, in the name of both executors, once a week for four consecutive weeks, and by handbills conspicuously posted throughout the village of Westchester, to take place at an hour and place specified on the 1st day of August, 1878. At the time and place specified, a public sale was conducted by a licensed auctioneer in the presence of both executors, and the property was struck off to one Kedney on his bid of $400, and he paid 10 per cent. of the purchase price pursuant to the terms under which the property was of fered for sale. Kedney thereafter assigned his bid, for a valuable consideration, to James F. Brown, the husband of the plaintiff, who, on the 5th day of August, 1878, paid the balance of the purchase price to Patrick Doherty, one of the executors, and received a deed from him, as executor, dated on that day, which was duly recorded on the day following. The other executor subsequently refused to sign the deed upon the ground that certain claims against the estate had not been settled, but he persisted in his refusal after an offer on the part of Brown to pay the same. The evidence justified a finding of good faith on the part of the executor who executed the deed, and on the part of Brown in paying the purchase price and accepting it. The premises consisted of a vacant lot in the town of Westchester, having a frontage of 110 feet on Union avenue, and extending in depth

on one line 386 feet, and on the other 403 feet. At this time the lot was inclosed on the rear and one side, at least, by fences. On one side, however, there was no fence. The lot adjoining the premises on that side was owned by Patrick Doherty, the executor who executed the deed, who was the father of the plaintiff. Brown, during the time he held the deed from the executor, and the plaintiff since, took possession, claiming title under the deed, and claimed and exercised exclusively such acts of ownership as might be exercised in view of the condition of the property. The plaintiff, shortly after receiving her deed, repaired the fences, and built a new fence in front, and annually paid the taxes. The adjacent lot, between which and the premises in question there was no fence, was also inclosed, front, rear, and on the opposite side; the two lots forming one entire inclosure. The plaintiff's father never made any claim or exercised any act of ownership over these premises, and in the deed which he gave as executor, which recites that it was given pursuant to the will, he gives an individual covenant of quiet enjoyment. Upon the death of her father, the date of which is not shown, the title to the adjacent lot descended to her, as his heir.

It appears that the executors never accounted. Executor Lunny died on the 31st day of December, 1890. The other executor is dead, but the date of his death is not shown. The defendants were minors at the time of the execution of the deed by the executor, and the younger became of age on the 21st day of December, 1889. It does not appear that there was ever any demand on the executors for an accounting, or that any of the claims against the estate remained unsatisfied. The inference is, and it seems to have been assumed, that the property was taxed to the plaintiff after he obtained a deed therefor. Of course, a deed from one only of two executors or trustees, where both have qualified and are acting, is void. Brennen v. Willson, 71 N. Y. 502; Wilder v. Ronney, 95 N. Y. 7. Assuming, without deciding, that the circumstances were not such that it can be said that the executor Lunny, in refusing to execute the deed, did "neglect or refuse to take upon him the execution" of the will, within the intent and meaning of section 55, tit. 1, c. 6, pt. (1st Ed.) Rev. St., so as to enable the other executor to convey the legal title, which it is claimed is not free from doubt (Roseboom v. Mosher, 2 Denio, 61), yet it is clear that as against the executors, acting as trustees, the statute of limitations against an action to recover possession of the premises commenced to run at once (Code Civ. Proc. § 415; Chase v. Cartright, 53 Ark. 358, 14 S. W. 90, 22 Am. St. Rep. 207; Willson v. Louisville Trust Co., 102 Ky. 522, 44 S. W. 121; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065; Meeks v. Olpherts, 100 U. S. 564, 25 L. Ed. 735). See, also, Yeoman v. Townshend, 74 Hun, 625, 26 N. Y. Supp. 606; Smith v. Hamilton, 43 App. Div. 17, 59 N. Y. Supp. 521. It is to be observed that the devise to the executors as trustees was for the benefit, not of the widow, for whom special provision was made in the third clause of the will, by giving her a life use of this parcel of real estate, but for the "support and maintenance" of the children. If, as seems quite clear, the trustees during the continuance of the trust held

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the legal title, and represented the defendants, that period should be counted in determining whether the statute of limitations has run. Chase v. Cartright, supra; Willson v. Louisville Trust Co., supra: Ewing v. Shannahan, supra; Meeks v. Olpherts, supra. And such period, taken in connection with the time that elapsed after the defendants became of age before this action was commenced, makes more than the 20 years required to bar an action by them. But even if this be not so, and the trustees were not entitled to possession, then defendants were at liberty to maintain an action of ejectment in their own behalf when the plaintiff took possession claiming title under this deed; and more than 20 years having elapsed since that time, and more than 10 years having elapsed since they became of age, their right to maintain an action for possession has become barred. Code Civ. Proc. §§ 365, 375. The case is distinguishable from those where there is an outstanding life estate, or estate held for the benefit of another, and where the life beneficiary or the trustee is alone entitled to possession, in which case the statute of limitations does not begin to run against the remainderman until he is entitled to possession. Clute v. N. Y. C. & H. R. R. Co., 120 N. Y. 267, 24 N. E. 317; Fleming v. Burnham et al., 100 N. Y. 1, 2 N. E. 905; Simis v. McElroy, 160 N. Y. 156, 54 N. E. 674, 73 Am. St. Rep. 673; Jackson v. Mancius, 2 Wend. 357.

We think the plaintiff has held the premises adversely under the deed of the executor. The lot was completely inclosed against every one except the plaintiff's father, who makes no claim of title, and who was under a personal covenant of quiet enjoyment contained in his deed as executor. In these circumstances, the mere fact that the lot was left open on the side toward the premises of the plaintiff's father, which premises themselves were otherwise completely inclosed, does not, we think, deprive the plaintiff of the benefit of the claim that her premises were "protected by a substantial inclosure." Code Civ. Proc. §§ 369, 370, 372. The plaintiff, having thus held the premises adversely for the period during which the statute of limitations against any action for possession has run, has good title. Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312, 10 L. R. A. 387.

It follows, therefore, that the judgment should be affirmed, with All concur.

costs.

In re FISHER.

(Supreme Court, Appellate Division, First Department. April 8, 1904.)

1. WILLS GENERAL LEGACIES-EXECUTORS-COMMISSIONS.

A will bequeathed such contents as should be in a box in a safe deposit company at the time of testator's decease to several persons in specified proportions. At testator's death the box contained stocks, bonds, and life insurance policies. The securities were of different value, and could not have been divided into the designated proportions. Held, that the legacy was not a specific, but a general, one, and in carrying out its terms the executor was required to make a sale of the property, and for so doing was entitled to his commissions.

2. SAME-PAYMENT OF COMMISSIONS.

Legacies of property, bequeathed to be divided among certain persons, which it is necessary to sell in order to make the required division, should bear their proportion of the commissions incurred in administering the entire estate.

Appeal from Surrogate's Court, New York County.

In the matter of the judicial settlement of the accounts of Chester Irving Fisher as executor of the last will and testament of Herman C. Fisher, deceased. From a decree of the Surrogate's Court fixing his compensation, the executor appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Isaac L. Miller, for appellant.

Charles J. Breck, for respondent.

HATCH, J. The surrogate disallowed commissions to the executor on the principal and income received upon the securities bequeathed by the testator under the second paragraph of his will, which reads as follows, to wit:

"Second. I give and bequeath the contents that shall be in my box in the Safe Deposit Company of New York, now situated at 146 Broadway, New York, corner of Liberty Street, in said City, at the time of my decease, to the following named persons and in the following proportions, viz. : Twotwelfths thereof to Mary Jane Clarke, sister of my late wife, Eliza McKie Fisher, one-twelfth part thereof to each of the daughters of said Mary Jane Clarke, viz.: Mrs. Nellie Keys and Mrs. Fannie Merrifield; one-twelfth thereof to each of the daughters of the late Margaret Ann Young, viz.: Mrs. Edith Young Shaw, Mrs. Susan Young Cochran, Mrs. Helen Young Maxwell, Mrs. Margaret Young Dutcher, Josephine Young, Grace Young, Mable Young and Elsie Young."

The articles contained in the box mentioned consisted of shares of stock in various corporations, bonds and mortgages upon property located in the states of Nebraska and Missouri, railroad bonds in various portions of the United States, corporate bonds, many of which were upon property located in the city of New York, and life insurance policies upon the life of deceased of the face value of $3,000, but which subsequently sold for $4,382.48. This personal property, together

12. See Executors and Administrators, vol. 22, Cent. Dig. § 2102.

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with a few articles of household furniture, which was directed to be divided among the same persons, was appraised at $101,058.23, and was sold by the executor for $103,370.08; and the amount received from this sale he divided among the various legatees, as directed by the terms of the will. The residuary estate was given to the testator's son, and he contends that the executor has no right to consider the amount received from the sale of the personal property above described as a part of the general estate; that those were specified legacies; and that the executor is not entitled to a commission thereon. The executor, on the other hand, contended that he could make no equitable division of this property without converting the same into cash, and that therefore he should be entitled to commissions upon the same. The Surrogate's Court held that the property bequeathed in the second clause of the will was all specific bequests, and that the executor was entitled to no commissions thereon. From the decree so entered, this appeal is taken.

It may be conceded that, if this provision of the will be construed as making specific bequests, the executor is not entitled to commissions for making delivery of the specific thing bequeathed. Schenck v. Dart, 22 N. Y. 420. Nor would this rule be changed, even though the legatees, by agreement among themselves, directed the executor to sell the same and divide the proceeds. It might be that under such circumstances the executor could exact and enforce compensation for his services against the legatees, but his act in making sale of property specifically bequeathed, and distributing the proceeds, would not create any right to commissions, or make the estate liable for his services. Collier v. Munn, 41 N. Y. 143. The executor's right to commissions upon this portion of the estate must therefore depend upon the nature of the bequest. In Crawford v. McCarthy, 159 N. Y. 514, 54 N. E. 277, the Court of Appeals, through Judge Haight, defined the several classes of legacies in this language:

"A general legacy is a gift of personal property by a last will and testament, not amounting to a bequest of a particular thing or money, or of a particular fund designated from all others of the same kind. A specific legacy is a bequest of a specified part of a testator's personal estate distinguished from all others of the same kind. A demonstrative legacy is a bequest of a certain sum of money, stock or the like, payable out of a particular fund or security. For example, the bequest to an individual of the sum of $1,500 is a general legacy. A bequest to an individual of the proceeds of a bond and mortgage, particularly describing it, is a specific legacy. A bequest of the sum of $1,500 payable out of the proceeds of a specified bond and mortgage, is a demonstrative legacy. A demonstrative legacy partakes of the nature of a general legacy by bequeathing a specified amount, and also of the nature of a specific legacy, by pointing out the fund from which the payment is to be made, but differs from a specific legacy in the particular that, if the fund pointed out for the payment of the legacy fails, resort may be had to the general assets of the estate."

By the terms of the clause of the will above quoted, the property in the box is required to be divided into twelfths; two shares to go to one person, and one to each of the other persons named therein. The securities which were found in the box were unequal in value. No particular security was bequeathed to a particular person. Each took a twelfth share in the whole, and it is evident that no one of the legatees