Vandergrifft v. Cox

OfiNion RY

Judge Lindsay :

By the will oí Samuel Thorn, his widow, Nelly Thorn, took a life estate in one-third of his landed estate, or in the rents and profits arising therefrom.

The fee simple estate in his land was not disposed of at all. He provided that the rents and profits of the land not embraced by the life estate, to be taken by his widow, should be equally divided between his two daughters, Peggy Cox and Nancy Brown, and in case of their death, among their children, in such manner as his executors might deem most conducive to their benefits. The power of managing the landed estate was given to the executors, and at the death of the testator’s wife, they were directed to sell it and such personal propertjr as might remain in their hands, and divide the proceeds among his two daughters and their children in such way as might appear to them the most likely “to do them good.”

The land itself is not devised at all. Neither the daughters nor their children take any estate in it under the will. The executors were merely invested with the power to manage, and finally to sell. It therefore necessarify results that the title descended to the heirs at law of the testator.

Under the deeds from Mrs. Cox and Mrs. Brown, Vandergrifft entered, taking possession of the entire tract of land. He has been in possession for over thirty years. He did not enter as a tenant in common with these appellees or an}1' of them. Whether the conveyance from their mother be -valid or invalid, is immaterial. The fact that he claimed under it shows that he was holding adversely to her, and conduces to show that he held adverse^ to her children.

Webb, Montfort, J. & J. W. Rodman, for appellant. DeHaven & Carroll, George C. Drane, for appellees.

She became discovert more than thirty years before her death, and the youngest of the appellees become an adult nineteen years before the institution of this action. The fifteen year statute of limitation effectually bars this action, even if it were conceded that the legal title to the land, or any part of it, passed to these appellees under their grandfather’s will. But as we have already seen, such was not the case.

The judgment of the court below is erroneous. For the reasons given, it is reversed and the cause remanded with instructions to dismiss appellees’ petition.