lands, containing in all 342 acres, and the said deed contained the following reservation: "Reserves to the said Josiah Vaughn the sole control, use and occupation of the above-described premises, and all the rents and profits thereof, during the term of his natural life." This deed was recorded in the recorder's office of Jersey county on the day of its date, to wit, November 11, 1879. Unquestionably, after the execution and delivery of this deed Josiah Vaughn had only a life estate in the property thereby conveyed; and his two sons, Charles A. Vaughn, and the appellant, Edward J. Vaughn, owned the remainder subject to the life estate. Subsequently, on February 19, 1885, Josiah Vaughn executed and delivered to the St. Louis, Jerseyville & Springfield Railroad Company, the original predecessor of the appellant railway company, a quitclaim deed to the strip of land 50 feet wide on each side of the center line of the said railroad, as the same was located and built across the 160 acres here sought to be partitioned. The deed recited that it "is executed, acknowledged and delivered by the grantor, and accepted by the grantee therein, as a full performance of the covenants and agreements of the grantor," contained in the bond or contract for a deed previously executed.

By the quitclaim deed executed to it on February 19, 1885, the St. Louis, Jerseyville & Springfield Railroad Company took no other or greater interest in the strip of land conveyed to it than an interest for the life of Josiah Vaughn; and the appellant company, as the successor of the St. Louis, Jerseyville & Springfield Railroad Company, took the same interest held by its predecessor. The defense made by the appellant in this partition proceeding is that under the deed of February 19, 1885, as claim and color of title made in good faith, it went into possession of the strip of land, and has been in possession thereof for more than seven years, and during that time has paid all the taxes legally assessed against the strip or right of way. There is no dispute as to the facts of its possession and payment of taxes during seven years under the quitclaim deed, as color of title. But under the circumstances already stated, the appellant cannot make a successful defense on the ground of possession and payment of taxes under section 6 of the limitation law (Hurd's Rev. St. 1901, c. 83).

The possession of land by a tenant for life cannot be adverse to the remainderman or reversioner; and, if he conveys to a third person by words purporting to pass the absolute property, the possession of the purchaser is not, during the continuance of the life estate, adverse to the remainderman or reversioner. The statute of limitations does not run against the remainderman or reversioner until after the life estate falls in, and It is only after the latter event occurs that the possession will be adverse to the re

mainderman or reversioner. The possession of the tenant for life, or his vendee, during the continuance of the life tenancy, is, in contemplation of law, the possession of the remainderman or reversioner. The latter cannot, during the life of the person for whose life the life estate is, bring an action against the person in possession under such life tenancy to recover possession of the premises. "No laches can be imputed to one who has no remedy or right of action, and to hold the bar of the statute could run against the title of a person so circumstanced would be subversive of justice, and would be to deprive such person of his estate without his day in court." Turner v. Hause, 199 Ill. 464, 65 N. E. 445; Mettler v. Miller, 129 Ill. 630, 22 N. E. 529; Rohn v. Harris, 130 Ill. 525, 22 N. E. 587; Higgins v. Crosby, 40 Ill. 260. In other words, the statute of limitations, upon which the appellant railroad company here relies, could not run against appellee Edward J. Vaughn, as remainderman or reversioner, until the life estate of his father, Josiah Vaughn, fell in. Josiah Vaughn died July 18, 1900. Prior to that date Charles A. Vaughn and his wife conveyed by warranty deed their undivided interest in the lands to the appellee Edward J. Vaughn, the deed providing that it was "subject, however, to the rights and interests (if any) during the lifetime of Josiah Vaughn, Sr., of the Chicago, Peoria and St. Louis Railway Company in and to the right of way, now used and occupied by said railway company, over and across" the north half of the 160 acres sought to be partitioned. The possession of the appellant company could not and did not become adverse to the appellee Edward J. Vaughn until the end of the life estate, and hence has only been adverse since July 18, 1900. In September, 1900, the appellee Edward J. Vaughn asserted his claim to the appellant railway company of title in fee to the property occupied as a right of way, and at the same time the appellant company asserted its claim of title to the said strip as a right of way.

It is claimed on the part of the appellant company, that it had no notice when Josiah Vaughn executed the contract in 1881 to convey the strip of land to appellant's predecessor, or when subsequently Josiah Vaughn executed a deed to the railroad company on February 19, 1885, that Josiah Vaughn was not the owner in fee of the property; in other words, that appellant's predecessor had no notice that the interest of Josiah Vaughn in the land was merely a life interest. Whether the question of notice is material or not, it is not necessary here to decide. But if it is material, the deed executed by Josiah Vaughn to his two sons on November 11, 1879, was recorded on that day, and was upon the records when the railroad company took its contract and its deed from Josiah Vaughn. Therefore appellant's predecessor had constructive notice by the record of the

nature of Josiah Vaughn's interest in the property.

It appears from the evidence that on August 8, 1902, the appellee Edward J. Vaughn executed and delivered to the appellee Sarah J. Vaughn, his wife, a quitclaim deed conveying to her an undivided half of the quarter section of land over which the right of way runs. It is charged by the appellant that this deed was a fraud, and was made merely for the purpose of giving a court of chancery jurisdiction in this proceeding. But there is no proof to sustain the charge thus made. On the contrary, the stipulation as to the facts upon which the cause was tried shows that the appellant company abandoned its contention upon this subject. In the sixteenth paragraph of the stipulation it is agreed that on August 8, 1902, Edward J. Vaughn executed to his wife this quitclaim deed for and in consideration of natural love and affection and $1, without any statement that the consideration in the deed was not sufficient, and without any statement that the deed was made for any improper purpose or from any improper motive. Therefore the deed cannot be regarded as otherwise than valid. Danville Seminary v. Mott, 136 Ill. 289, 28 N. E. 54.

It is clear, therefore, from what has been said, that the decree of the court below was correct in holding that appellee Edward J. Vaughn and his wife were the owners in fee of the property sought to be partitioned, including the strip of ground claimed by appellant. When Josiah Vaughn, the life tenant, under whom the appellant company held, died, all the title of the appellant company ended, and the fee-simple title was vested in the remainderman.

But a more serious question is presented in regard to that portion of the decree which requires the appellant company to surrender the possession of the property to the appellees Edward J. Vaughn and his wife. A decree may be made in a partition proceeding, requiring a surrender of the possession to be made by a third party, claiming an interest in the premises, to the parties found to be the owners thereof as tenants in common. Mott v. Danville Seminary, 129 Ill. 403, 21 N. E. 927; Iberg v. Webb, 96 Ill. 415; Henrichsen v. Hodgen, 67 Ill. 179; Gage v. Lightburn, 93 Ill. 248; Gage v. Bissell, 119 Ill. 298, 10 N. E. 238. In Iberg v. Webb, supra (by mistake referred to in Mott v. Danville Seminary, supra, as Gage v. Lightburn), "the decree of the circuit court required the defendants, who held under the tax deed, which was claimed to be a cloud upon the title, to surrender possession to the complainants, and allowed the defendants nothing for the improvements they had made upon the premises. The decree was held not to be erroneous in these particulars, because the defendants had asked no affirmative relief in respect of the matters so complained of." Mott v. Danville Seminary, supra. In the

case at bar the appellant company has claimed to be the absolute owner in fee of the strip of ground in question, and has asked no affirmative relief in regard to its improvements placed upon said strip of ground. In Smith v. Chicago, Alton & St. Louis Railroad Co., 67 Ill. 191, it was held that ejectment will lie against a railway corporation by the owner for land taken and used by it for the purposes of its road, where the land has not been condemned under proceedings instituted for that purpose in the mode prescribed by the Constitution, and laws enacted in conformity therewith. See, also, Chicago & Alton Railroad Co. v. Smith, 78 Ill, 96; Edwardsville Railroad Co. v. Sawyer, 92 Ill. 377; Chicago, St. Louis & Western Railroad Co. v. Gates, 120 Ill. 86, 11 N. E. 527; Postal Telegraph Co. v. Eaton, 170 Ill. 513, 49 N. E. 365, 39 L. R. A. 722, 62 Am. St. Rep. 390.

In the case at bar the appellant company commenced no proceeding after the termination of the life estate for the condemnation of the title owned by the remaindermen or reversioners. But the railroad company cannot be regarded as a trespasser. It went into possession of the strip of land occupied by it under a deed from the life tenant, and had a right, during the life of the life tenant, to construct its railroad bed and lay its tracks upon this strip, and operate its road thereon. There is nothing to show that such use and occupation by it of the strip in question worked any injury to the interests of the remaindermen or reversioners. It was intimated in Smith v. Chicago, Alton & St. Louis Railroad Co., supra, that, where the entry of the railroad company was legal as to the life estate, and no objection was made to its occupation by the reversioners, the railroad company would be entitled to a notice to quit before action brought. There is no question, under the evidence in this case, that such notice was given, and efforts were made to induce the appellant company to commence condemnation proceedings. The owner of the land is not bound to take the initiative, so far as condemnation proceedings are concerned, because by the statute the corporation in such cases must be the actor. "The owner having no duty to perform, he is passive." Smith v. Chicago, Alton & St. Louis Railroad Co., supra.

Although a court of chancery in a partition suit may make an order, requiring a surrender of the possession, and may issue a writ of possession to put such order in force, yet we think that the portion of the decree requiring the appellant company to give up the possession was prematurely entered. The decree directs as follows: "And the said defendant railway company is hereby adjudged to be ousted of the possession of the aforesaid strip of ground, and is hereby ordered and directed to surrender possession thereof to the complainant and defendant herein within a period of sixty days of this date, and that

in default or refusal to so surrender possession thereof, a writ of possession issue by and under the authority of this court, directing the said defendant railway company to surrender possession thereof in accordance with the terms of said writ." The decree then goes on to appoint commissioners, and directs the commissioners to make partition of the property, and provides that if the property cannot be divided without manifest prejudice, etc., they shall appraise the value, and make a report to the court, and that they shall go upon the premises, and allot the several shares to the respective parties entitled thereto, designating such shares by metes and bounds, and that they may employ a surveyor, etc. The partition proceeding is not ended by the decree entered herein, from which the present appeal is prosecuted. The decree was final in so far as it determined the titles or interests of the parties in the property, but it was not final in the execution of all the steps required by the statute for the partition and division of the property. It directs that possession be given to the complainant, Edward J. Vaughn, and his wife, Sarah J. Vaughn; but the commissioners appointed to partition the property may divide the 160 acres in such a way as to set apart that portion of the tract where the railroad right of way is located to one or the other of these parties alone. If the portion of the 160 acres over which the right of way passes, is set apart to Edward J. Vaughn, then he is the party in whose favor the writ of possession should be issued. It certainly would not be proper to issue a writ of possession to put Sarah J. Vaughn in possession of the strip of ground in question, if in the partition there was set apart to her a portion of the tract upon which the railroad right of way was not located.

In Kern v. Zink, 55 Ill. 449, which was a bill in chancery for partition, brought by a part of several heirs against their coheirs, to which a party in possession, claiming as lessee of a portion of the premises, was also made a defendant, it was held to be proper, upon the lease being decreed to be void, and the portion of the premises so claimed under the lease being assigned to some of the heirs who were defendants in the bill, to award to the latter writs of possession against their codefendant, claiming under the void lease; and in that case it was said: "The land was then partitioned, and two of the parties to whom the land held by Allison was allotted took out writs of possession. There was no error in this. The validity of the lease was brought before the court by the bill in behalf of all the heirs, and, when the court decided it to be void, it was proper to carry that decree into full effect by giving the possession to whichever of the heirs the land might be assigned." In the case at bar there was no prayer in the bill that the deed made by Josiah Vaughn to appellant's predecessor

should be removed as a cloud upon the title, as being a deed which by its terms conveyed the whole title, when, as a matter of fact, the grantor in it owned only a life estate. There is therefore no provision in the decree here setting aside any instrument as a cloud upon the title, as the lease held to be void was set aside in Kern v. Zink, supra. But it is very clearly intimated, if not held, in the latter case, that the writ of possession, when issued, should be issued in favor of the co-tenant to whom a particular part of the property has been set off or aparted, in order to put him in possession of his portion of the land.

For these reasons, we are of the opinion that the provision of the decree in regard to the surrender of the possession was made too soon, and that the court should either have waited until the commissioners had made their report, before it ordered a surrender of possession, or should have provided in advance that the possession should be surrendered to the party, to whom that portion of the tract should be set apart on which the right of way of the railroad company was located. It might be that the commissioners would report that the property could not be divided, and that the same should be sold, and then the question would arise whether the purchaser at the sale would be entitled to be put in possession of the property.

In addition to what has been said, counsel for the appellee Edward J. Vaughn makes the following statement in his brief: "Appellee Edward J. Vaughn did not in his bill in the circuit court. nor in the argument in said court, nor does he now, claim the improvements erected by appellant on the strip in controversy. The circuit court held by its decree that the appellant was ousted of possession in sixty days after the rendition of the decree, which was regarded as a reasonable time to the railway company to remove its improvements or file its petition to condemn. * Appellee Edward J. Vaughn now stands ready to adjust the reasonable damages for the strip in controversy by a condemnation suit." It is thus admitted that there is no desire to take from the railroad company the improvements which it has placed upon the property, and which by the terms of the stipulation between the parties are valued at $5,400. It is also admitted that a condemnation proceeding to determine the amount of damages to be paid will not be objected to. If a condemnation proceeding is instituted for the purpose of taking the ground embraced in the right of way and making compensation therefor to the owners, the appellant company will not be required to pay the owners of the land for the improvements so placed upon it at its own expense. This is so, for the reason that the railroad company did not enter upon the land as a trespasser. In Chicago & Alton Railroad Co. v. Goodwin, 111 Ill. 273, 53 Am. Rep. 622,

which was a condemnation proceeding, and where a railroad company had entered upon land and constructed a railroad over it, without injury to the inheritance, under a license from the tenant for life, it was held that there was no trespass on the part of the railroad company, and that the law would not require the company, in seeking a condemnation of the land so entered upon for a right of way, to pay the owner for structures placed upon it at its own expense with a view of subsequently acquiring the right of way; and it was also held in that case that such entry, being originally lawful, would not subject the railroad company so entering to either an action of trespass or ejectment on the part of the remaindermen. Certainly the railroad company ought not to be required to take up its track located across this quarter section, and remove all its improvements entirely therefrom, if such a result can be in any way avoided, so as to protect the interests of appellees, because such action would necessarily stop the operation of the railroad, and cut its right of way in two. When the commissioners appointed to make partition submit their report, the court below should then enter a decree or an order requiring the railroad company to surrender the strip of ground of which it is in possession within a reasonable time, to be fixed by the court, unless within that time it either removes its improvements, or makes compensation to the appellees for their property, either by agreeing with them upon the price to be paid for it, or by instituting a condemnation proceeding for the purpose of determining the price so to be paid. In other words, the railroad company should have a reasonable time within which to condemn the property before it is summarily ejected from the possession thereof. We do not hold that in this partition proceeding the court of chancery should summon a jury to determine the amount of compensation to be paid to the owners, or to adopt a proceeding for the condemnation of the property as a part of this proceeding. But the court can easily so frame its order in regard to the possession as to give the railroad company a reasonable time for making compensation to the owners, either by negotiation, or by a separate proceeding for condemnation, outside of and independent of the present partition proceeding.

Our best judgment is, and we so order, that that portion of the decree of the court below which decides the ownership of the property here in controversy to be in the appellees Ed-¦ ward J. Vaughn and his wife should be, and is hereby, affirmed, but that the portion of the decree relating to the surrender of possession be reversed; and the court below is hereby ordered to make such order or decree upon that subject, after the coming in of the report of the commissioners, as is consistent with the views herein expressed. Partly af firmed, and partly reversed and remanded.

1774.439

HAMLIN v. STEVENS et al. (Court of Appeals of New York. Dec. 18, 1903.)

WILLS-DESCRIPTION OF LEGATEES-CONTRACT TO MAKE-EVIDENCE.

1. Where a will describes a legatee as testator's nephew, and refers to his own children as his "oldest daughter" and his "second daughter," and directs that after the death of his wife the estate should be equally divided between "our children or their heirs," such nephew is not entitled to share in the residuary estate, though from the time he was 11 years old he had been treated as an adopted child, though never formally adopted.

2. Contracts alleged to have been entered into with persons, to be enforced after the death, unless established clearly by satisfactory proofs, and unless they are equitable, will not be specifically enforced.

3. In an action to construe a will, evidence held insufficient to establish a contract by which testator agreed to give to an alleged adopted child a share of his estate.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Charles A. Hamlin, administrator of Lyman Stevens, against Julia E. Stevens and others. From a judgment of the Appellate Division affirming a judgment of the Special Term (79 N. Y. Supp. 1133) construing the will of Lyman Stevens, Lyman A. Stevens appeals. Affirmed.

Theodore E. Hancock and Thomas K. Smith, for appellant. Homer Weston and Waldo Weston, for respondent.

VANN, J. This action was brought for the construction of the will of Lyman Stevens, deceased, with reference to certain questions not material on this appeal. The appellant was not made a party in the first instance, but he was permitted to come in as a defendant, and to raise two issues: (1) That according to the terms of the will, when considered in the light of surrounding circumstances, he was one of the residuary legatees; (2) that he was entitled to one-third of the residuary estate by virtue of a contract alleged to have been made in his interest between his father and the testator when he was an infant. The Special Term found against him upon both issues, and the judgment entered accordingly was affirmed by the Appellate Division, one of the justices dissenting. From the judgment of affirmance Lyman A. Stevens appealed to this court.

The will was drawn by the testator himself but two days before his death. He first bequeathed to Lyman A. Stevens, whom he described as his "nephew," the sum of $6,000, and by the next clause he devised to his "oldest daughter Mary L. Hamlin" a house and lot in confirmation of a former informal gift, and gave her a legacy of $2,000. He then devised to his "second daughter Grace S. Loomis," also in confirmation of a former informal gift, a house and lot, and bequeathed her $2,000 in money. His fourth gift, of $1,000, for the benefit of a religious organization,

was followed by the residuary clause, whereby he instructed his executors "to administer, execute and keep employed all that remains of my estate for the use, benefit and comfort of my beloved wife Julia E. Stevens during her natural life, * and at the decease of my wife the residue remaining of my estate shall be divided equally between our children or their heirs."

The first claim of the appellant is founded upon the words "our children," as used in the residuary clause. The only natural children of the testator were the two daughters named in the will, but the appellant contends that it was the intention of his uncle, in using the words "our children," to include him as one of his residuary legatees, because from the time he was 11 years old he was treated as an adopted child, although never formally adopted. The trial court found that the testator clearly distinguished in his will "Lyman A. Stevens as a nephew, and his daughters as his children, and the words 'our children,' as used in the residuary clause in the will, were not intended to and do not include the defendant Lyman A. Stevens, and he is not entitled to share in the residuary estate of the decedent as a child under said terms." We think this conclusion was right, for the testator described the appellant as his nephew, not as his son. He referred to his own children as his "oldest daughter" and his "second daughter," and finally in the same sentence in which he made provision for his wife he directed that upon ber decease the remainder of the estate should be divided equally between their children. Although there was evidence tending to show that the testator treated the appellant as his son, and often spoke of him as his son, still his description of him as his nephew shows that he did not intend to include him by the use of the word "our" as one of his children. That word referred to himself and wife, and it was natural to use it in referring to their children, especially as it occurs right after the thoughtful provision made for his wife and in connection with his tender allusion to her. As this point was not pressed upon the argument, it needs no further discussion.

The main reliance of the appellant is upon the alleged contract. The trial judge found that the testator "never made a contract with the defendant Lyman A. Stevens, or with his parents, whereby and wherein he agreed to give to the said Lyman A. Stevens any share of his property at his decease, and that there is no clear and convincing evidence establishing such a contract." As this finding was based on conflicting evidence, we are not asked to review it, but we are asked to set it aside and grant a new trial, because incompetent evidence was received by the trial court, although duly objected to by the appellant. In order to decide the points raised, it becomes necessary to state the leading facts. The testator died on the 16th of October, 1891, leaving a widow, said two daughters, and an estate valued at $65,000. The

appellant is the son of Leonard Stevens, a brother of the testator, and his wife, Sarah, who lived in Huron county, Ohio. He resided with his parents until April, 1869, when, at the age of 11 years, he came to Syracuse, and lived with his uncle, the testator. "From that time onward," as the trial justice said in his opinion, "he formed a part of the family of Lyman Stevens, and seems to have been treated with all the regard and affection of a son. He was reared, educated, and clothed by his uncle, and on his part seems to have repaid the latter for his care by affection and gratitude and by services similar to those which a child would have rendered to a father. He helped his uncle about his farms and about his business, and the uncle often referred to him as his righthand man and as his son. On several occasions he stated that he knew no difference between Lyman and his other children, and that he should make no difference between him and them when he came to divide his estate." When he was 19 or 20 years old, the testator paid him wages at the rate of $10 a month, and after he became of age $15 a month, and charged him with all sums paid to him or for his benefit. His board was without charge. Leonard Stevens, his father, died a good many years ago, but his mother, who was 77 years old when her deposition was taken before the trial, testified that in the fall of 1868 the testator, while on a visit to his brother in Ohio, "asked if we were willing that Lyman, his namesake, should come to live with him as his own son. He said that, if we would allow him to come and live with him until he was twenty-one, he would educate him, and he should share in whatever earthly wealth he had at his death. The subject was then dropped. In January, next year (1869), brother Lyman came to visit us again. * My husband suggested that in such a matter we should have some legal papers. My brother-in-law stated that he could not see the necessity of any such a thing; that he considered his word just as binding as any papers that could be drawn up. He said: 'You need have no misgivings. I shall always regard him as my own son, and always treat him as such.' He said that whatever worldly wealth that he should have to dispose of at the time of his death they should share and share alike, his two daughters and Lyman." She further testified that between January and April, 1869, two letters came from the testator, which, after due search, could not be found. When asked if she could give the contents of those letters she answered, "Not exactly." When asked if she could give the substance of the letters, she answered, "No." The examination then continued: "Q. You may give the substance, if you can, of those letters. A. They told how pleased his wife and family were that Lyman was coming. Q. Did he state anything as to how he would dispose of his goods? A. He should have any