If nothing further were made to appear, it is clear that such sale and conveyance were futile to devest the plaintiff of his estate under the will, and that judgment must be for the plaintiff. The guardian could convey no more than the ward could, and the ward's estate in the demanded land utterly ceased at her death.

But the defendant goes further and invokes the fourth clause of the will as follows: "I order and direct my executrix herein named to apply all, or whatever is necessary, of the rents, profits and income of my real and personal estate to the support and education of my said daughter 181 Marie J. Purington, giving her a high school, and if she desires a seminary or collegiate, education and should the rents, profits and income of my estate, real and personal prove insufficient for that purpose, I order and direct my executrix to first sell the real estate situated on the westerly side of Spring street in said Westbrook, and after the proceeds of the same shall have been applied to the support, clothing and educating as aforesaid of my said daughter, Marie J.; and should they prove insufficient, I order and direct my executrix to next sell the house and lots situated on Stroudwater street near the Portland and Rochester Railroad, and should that also prove insufficient, for said purposes, I order and direct my executrix to sell the house and lot situated at the corner of Main and Stroudwater streets, being the one in which I now live; and it is my wish and desire, and I so order and direct that nothing contained in the second (2) provision herein made shall prevent, or in any way interfere in, my executrix disposing of the whole of my estate, real, personal and mixed, for the support, clothing and educating as aforesaid of my said daughter Marie J. Purington."

In the second clause of the will the devise to the plaintiff is made contingent on the land not having been sold under this fourth clause. Dora Purington was appointed executrix but had died without having disposed of any part of the real estate of the testatrix under the fourth clause, and before the death of Marie and before the beginning of proceedings by the guardian of Marie to make sale.

Upon the death of Dora, the executrix, did her power or interest in the demanded land, under his fourth clause of the will, pass to Marie, or her guardian, so as to become the subject of a probate sale of real estate? We think not. There is no provision in the will that it should, and we know of no such provision in any statute or rule of law. The testatrix must have

intended that some person or persons other than Marie herself, a minor, should dispose of the property and expend the proceeds. In Clifford v. Stewart, 95 Me. 41, 49 Atl. 52, the will read "I give to my grandchildren one thousand ($1000) to each one, and I wish and direct that this shall be devoted and expended for their education." The grandchildren were minors and the court held they were incapable in law of receiving and applying 182 the funds for themselves, and that the testatrix must have intended some other person to hold the fund and execute the trust.

The defendant argues that the administrator de bonis non with the will annexed, after the death of the executrix, could not execute the power or hold the interest devised under the fourth clause, since the trust and confidence of the testatrix were reposed only in the executrix, Dora. If this argument be sound, the a fortiori the guardian of Marie could not exercise the power and trust so reposed. He is further removed from the testatrix, and her estate than is the successor to the executrix.

The defendant argues also that the interest of Dora, the executrix, in the land under the fourth clause of the will was heritable, and that Marie, as an heir of Dora, inherited half the land upon Dora's death. As already explained, the estate of Dora under the fourth clause, whatever it was, was solely to enable her to execute the trust or power therein conferred, and upon her death was to vest only in such persons, if any, as were empowered to execute that trust or power. Marie, the infant beneficiary, was not empowered by the will or by the law to exercise that power: Clifford v. Stewart, 95 Me. 41, 49 Atl. 52.

The question is mooted who could exercise this power or execute this trust, if not the guardian of Marie? That question does not arise in this case, and hence is not answered. The plaintiff, however, cites upon the point: Rev. Stats. 1883, c. 64, sec. 21; Clifford v. Stewart, 95 Me. 46, 49 Atl. 52, and other cases in Maine under that statute.

It follows that the defendant took no title from the conveyance to him, and that judgment must be for the plaintiff.

2. The will of Helen J. Purington disposed of her entire estate real and personal. It has been fully construed by this court at the suit of the administrator de bonis non with the will annexed, as reported in Hersey v. Purington, 96 Me. 166, 51 Atl. 865. In that opinion the estates of all the devisees were defined sufficiently for their guidance and that of the administrator, and no further opinion was asked for. The costs of that

suit were made a charge on the estate. The present bill is brought by one who is neither administrator, nor devisee, nor even heir. The remaining questions are not between 183 devisees, nor between administrator and devisees, but only between the heirs or representatives and grantees of a deceased devisee, and only concern title to real estate. Such questions mooted by persons claiming under such devisees should be determined in an action at law, or under some circumstance by a bill in equity to quiet title. They do not concern the estate of the testatrix, and are not within the scope of the statute giving the court jurisdiction in equity to construe a will: Jackson v. Thompson, 84 Me. 44, 24 Atl. 459; Hersey v. Purington, 96 Me. 166, 51 Atl. 865; Burgess v. Shepherd, 97 Me. 522, 55 Atl. 415.

Nor can the bill be maintained under the head of avoidance of multiplicity of actions. So far as appears, one action will determine the question of title finally as between any two claimants or sets of claimants.

Nor can the bill be maintained for the purpose of informing the guardian of Marie J. Purington what to do with the money he received from purchasers under his attempted sales of land. If he is only a stakeholder and is threatened with conflicting suits, he may bring a bill of interpleader against the conflicting claimants. The question is not within the scope of the statute under which this bill was brought.

No other grounds are suggested upon which the bill can be sustained, and we think it must be dismissed for want of jurisdiction in equity, but without costs since the respondents have not objected on that ground.

In the action at law judgment for the plaintiff with damages assessed at one dollar. Bill in equity dismissed.

The Powers of Guardians at Common Law are discussed in the monographic note to Schmidt v. Shaver, 89 Am. St. Rep. 257-316.

The Powers of Executors at the common law are discussed in the monographic note to Fletcher v. American Trust etc. Co., 78 Am. St. Rep. 171-207.

On Suits in Equity to Construe Wills, see Toland v. Earl, 129 Cal. 148, 79 Am. St. Rep. 100, 61 Pac. 914.

SOPER V. LAWRENCE BROTHERS COMPANY.

[98 Me. 268, 56 Atl. 908.]

COTENANTS, Statute, When Applies Between.-A statute declaring that when lands have been conveyed by the state for the nonpayment of taxes, and the grantee or his successors in interest have paid taxes for twenty years subsequently to the recording of the tax deeds, and have held such exclusive, adverse and continuous possession as comported with the ordinary management of wild lands, no action shall be maintained by any former owner to recover such lands, provided, however, that the statute shall not apply to actions between cotenants, such proviso must be held to aply only as to persons who claim as tenants in common, and not to those who claim as exclusive owners. (p. 401.)

ONE TENANT IN COMMON may Disseise Another. (p. 402.) ADVERSE POSSESSION by a Cotenant.-A Grantee in a Warranty Deed purporting to convey an estate in severalty is not presumed to be a tenant in common, but a tenant in severalty, and if he holds exclusive possession claiming in severalty, his possession is adverse to other persons who are tenants in common with his grantor. (p. 404.)

CONSTITUTIONAL LAW. The Constitutionality of a Statate is Presumed where the contrary is not shown beyond a reasonable doubt. (p. 405.)

CONSTITUTIONAL LAW-Statutes Unconstitutional in Part. A statute requiring a claimant of land which has been sold for taxes to pay the amount of the taxes before the trial of an action involving the validity of the sale is, as to such provision, unconstitutionai and void, but this does not require the statute to be declared void as a whole, if such provision is not connected in meaning, nor cooperative in purpose, with the other provisions of the statute. (p. 405.)

CONSTITUTIONAL LAW-Statute of Limitations.-A statute providing that persons claiming under tax deeds who have paid all taxes for the period of twenty years after the recording of such deeds, and have held such adverse, continuous, exclusive and peaceable possession during that time as comports with the ordinary manage. ment of wild lands shall not be subject to any action to recover such lands by any person who during such time has not paid any of such taxes or done any other act indicative of ownership, is constitutional. (p. 406.)

CONSTITUTIONAL LAW-Statute of Limitations having a Retroactive Operation.-Statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the commencement of an action before the bar takes effect. (p. 408.)

Taber D. Bailey, for the plaintiff.

Orville D. Baker and A. K. Butler, for the defendant.

272 WHITEHOUSE, J. This is an action of trover to recover the value of a large quantity of logs alleged to have been cut by the defendant company on township No. 3, range 6, west

of the Kennebec river in Somerset county. The case comes to this court on the plaintiff's motion to set aside a verdict in favor of the defendant, and on exceptions to the ruling of the presiding judge.

The defendant company admitted that it had cut logs on the township in question within six years prior to the date of the writ, and claimed that it had a legal right so to do by reason of its ownership in fee of the south half of the town, and by virtue of permits from the owners of the north half. It was also contended in behalf of the defense that the plaintiff's action was barred by the statute of limitations enacted in 1895 entitled "An act to make state tax sales more effectual": Pub. Laws 1895, c. 162; Rev. Stats. 1903, c. 10, secs. 153, 156.

It was admitted that township No. 3, range 6, in question pertained to the "Bingham Purchase," and that the title to the whole of it was at one time in William Bingham. The plaintiff claimed to 273 own 29-72 of the township in common and undivided, and deriving title from the commonwealth of Massachusetts introduced deeds conveying to him several fractional interests showing in the aggregate a record title to about onethird of the town.

The defendant derived title to the south half of the town from A. and P. Coburn through several mesne conveyances, all deeds of warranty duly recorded. October 1, 1872, A. and P. Coburn conveyed the entire township to A. and W. Sprague by deed of warranty recorded October 8, 1872. September 1, 1873, A. and W. Sprague conveyed the whole township to the Coburn Land Company by deed of warranty recorded September 19, 1873, and as a part of the same transaction the Coburn Land Company reconveyed the township to A. and P. Coburn by deed of mortgage with covenants of warranty which was recorded October 31, 1873. This mortgage was duly foreclosed the following year, and thus by this series of recorded deeds of warranty, A. and P. Coburn claimed to have acquired full title to the entire township, and in 1880 Abner Coburn, acting for himself and the heirs of his brother Philander, conveyed the south half of the town to Wildes and Snow by deed of warranty duly recorded August 16, 1880, in consideration of thirty-three thousand dollars. October 27, 1885, the south half was conveyed by Wildes and Snow to Lawrence Brothers and by Lawrence Brothers to the defendant company March 13, 1893, both by deeds of warranty duly recorded. The Coburns and their heirs and devisees still retain the title acquired by them to the north half of the town.