and be held by him or her after his death, and until he or she shall die. We agree with the learned justice who dissented at the general term in thinking that in this case the intention of the tes tator is better carried into effect by following the literal meaning of the language of his eighth clause than artificial rules of construction. Where the testator's intention is concealed, and context is silent, and circumstances are wanting to aid us, the application of such a general rule is proper enough and safe; but where the courts can make out the testator's probable intention, and it can be carried into effect without violating any rule of law or statute, no general rule may rise above it. The judgment of the general term should be reversed, and the decree of the surrogate should be affirmed, with costs. All concur, except MAYNARD, J., absent. 1. A written instrument dated in 1767, produced from the town-clerk's records, signed and sealed by 24 persons, but not witnessed or acknowledged, which recites that the signers are the proprietors of a tract of land which had been granted to the town, is not evidence that such persons were the proprietors, as against a person who does not claim in privity with any of them. 2. Proof of actual entry and exclusive possession are necessary to render valid a title based on a parol partition. 15 N. Y. Supp. 511, affirmed. Appeal from supreme court, general term, second department. Action by Mary E. Sanger and others against John C. Merritt, Jr., and another, executors, etc., and another, to recover possession of certain land. Defendants obtained judgment, which was affirmed by the general term. Plaintiffs appeal. Affirmed. Sanger & Davis, (Joseph H. Choate and Gherardi Davis, of counsel,) for appellants. Thomas Young, for respondents. MAYNARD, J. The plaintiff seeks to recover the possession of 259 acres of pine brush land, in what is known as the "Third Division of the Baiting Place Purchase," in the town of Babylon, formerly Huntington, in the county of Suffolk. The defendant puts the plaintiff's title in issue, and alleges title in himself by adverse possession. Both parties concede that, by virtue of certain royal or colonial grants, the title was originally vested in the town of Huntington in its corporate capacity. The plaintiff claims that, in 1793, one John Hartt became seised of the lands, and that by sundry mesne conveyances she has succeeded to his right of possession. When the case was before this court upon a former appeal, (120 N. Y. 109, 24 N. E. Rep. 386,) it was held that the plaintiff bad failed to show title in Hartt from the town of Huntington, principally because the allotment of 1793, under which she claimed, was void for want of conformity to the requirements of chapter 41 No of the Laws of 1787, entitled "An act for the prevention of frauds." It was also held that Hartt's title could not be supported upon the theory that he was one of the proprietors of the land, and that the allotment vested the legal title in him through a partition between the owners, for the reasons: (1) That there was no evidence that he was one of the proprietors, or even a freeman of the town, before the allotment; (2) that the so-called partition was not in accordance with the statutes then in force regulating partitions; and (3) that the allotment would not operate as a valid parol partition, unless the allottee had taken exclusive possession of the land under it, of which there was no evidence whatever. Tested by these rules, it is apparent that the plaintiff failed, upon the trial now under review, to make good her title, and her complaint was properly dismissed. such conveyance from the town of Huntington as the statute of frauds required was shown. But the plaintiff insists that title to the tract, of which these lands are a part, was shown to be in John Hartt and others, as tenants in common, and that a valid parol partition between him and his co-tenants has been established. It is difficult to see, from the proofs in the case, how this contention can be upheld. It is evident that John Hartt was not one of the original proprietors of the town, or of these lands; but it is sought to invest him with all the rights of a proprietor, because of a devise to him of some lands in the "Baiting Place Purchase" in the will of his father, Cornelius Hartt, which was made and probated in April or May, 1774. But there is no evidence that the father was one of the proprietors; nothing but a written instrument, dated May 28, 1767, produced from the records of the town-clerk's office, signed and sealed by Cornelius Hartt and 23 others, not witnessed or acknowledged, in which they recite that they are the subscribers and proprietors of a tract of land in the "Baiting Place Purchase. These recitals are not evidence of title against the defendant. Hardenburgh v. Lakin, 47 N. Y. 109. The same is true of the other instruments upon which plaintiff relies. The defendant is not affected by their contents, as he is not in privity with the parties who executed them, but he is in by virtue of a hostile possession. The plaintiff also failed to show any such entry upon and exclusive possession of the premises in dispute by John Hartt as are necessary to render valid a parol partition thereof. No act of exclusive ownership or dominion is referred to; no actual possession proven; no claim of title, even, asserted. All that is shown is a receipt from the survey or that on November 26, 1793, John Hartt paid 16 shillings on account of some survey; but whether of these lands or of others, which appear in the same book, is left to conjecture. As the record does not disclose any material fact which impairs the force or application of the former decision in this case, the judgment appealed from must be affirmed, with costs. All concur. (131 N. Y. 610) IN RE WILCOX'S WILL. In re WILCOX'S WILL. 1. Where, on an application for the probate of a will, the only evidence in the record is that of the two subscribing witnesses, and there is no contradiction between them, the only question being as to what inferences are to be drawn from their testimony, which does not in exact words prove the due execution of the will, a recital in the judgment of the general term that the decree of the surrogate is reversed upon the facts does not prevent the court of appeals from inquiring into the sufficiency of the evidence. 2. Where a will is contested on the ground that it is not the will of the testator, and that it has been fraudulently altered since its execution, and the surrogate refuses probate, on the ground that the execution of the will has not been proved, without hearing any evidence on the issue of alteration, the general term, on reversing such decree, should remand the case to the surrogate for trial of the said issue of alteration. 14 N. Y. Supp. 109, modified. Appeal from supreme court, general term, fifth department. Proceeding to probate the last will and testament of Samuel Wilcox, deceased. Objections were made by the next of kin, and the surrogate refused to admit the will to probate. This decree was reversed by the general term, and the contestants appeal. Modified. Walter S. C. D. Kiehel, for appellants. Hubbell and Eugene Van Voorhis, for respondents. com PECKHAM, J. Proceedings were menced before the surrogate of Monroe county for the purpose of proving a certain instrument in writing to be the last will and testament of Samuel Wilcox, deceased. Citations were duly issued, and some of the next of kin appeared, and opposed the probate of the instrument, on the ground that it had not been duly exe. cuted, and that it was not the free and unrestrained will of the testator, and that, as the instrument was presented for probate, it was different from and not the same paper executed by the testator, and that it had been willfully and intentionally changed and altered in material parts by parties in interest since the death of the decedent. Upon these issues the parties went to trial before the surrogate. The proponents examined the subscribing witnesses to the will, and they were crossexamined at some length, and both examinations were confined to the sole question of the due execution of the instrument. Upon the conclusion of the examination and cross-examination of the subscribing witnesses, the proponents offered the instrument in evidence, and, upon the objection of the contestants that the same had not been sufficiently proved, the surrogate refused to admit it to probate, and held that there was a failure of proof as to its due execution. Probate was refused on that ground alone. The contestants offered no proof in the case. the subscribing witnesses had been examNo one but ined. A decree was thereupon duly entered, refusing probate, and from such decree the proponents appealed to the general term of the supreme court. That court held that the evidence of the sub 101 scribing witnesses sufficiently proved the due execution of the will, and thereupon it reversed the decree of the surrogate, and directed that the will should be admitted to probate. From the judgment entered upon this order of the general term, the next of kin have appealed to this court. The judgment of the general term recites that the decree of the surrogate was reversed upon the facts, and the findings of the surrogate were therein disapproved. As there was in the record nothing but the evidence of the two subscribing witnesses, and neither in any way contradicted the other, and it was simply a question as to what inferences should be drawn from testimony not conflicting, but which did not in exact words prove the due execution and publication of the instrument, the case seems to be within our decision in Re Hunt, 110 N. Y. 278, 18 N. E. Rep. 106. In that case the only testimony was that of the subscribing witnesses, such testimony not being contradictory, yet not proving, in exact language, the existence of the necessary facts. The surrogate held the testimony not sufficient, while the general term was of a contrary opinion, and reversed his decree, and directed him to admit the will to probate. The judgment of the general term in that case contained the same statement as in this, viz., that the decree of the surrogate was reversed upon questions of fact. We held that, notwithstanding such statement, where it appeared that all the evidence was returned we could look at the case, and see if there were any real conflict; and, if not, the general term, in reversing the surrogate, had the power to itself decree the adsimply differed with the surrogate in remission of the will to probate, where it gard to the proper inferences to be drawn from evidence not conflicting. A question of fact might possibly arise upon evidence not conflicting in terms, where inferences might be drawn either way, and where a decision either way would not be considered as against evidence. But here it does and legitimate inference properly to be not seem to us that there is but one fair drawn, and that one in favor of the proof of due execution. In the proceeding now before us there properly made before the surrogate, and is, however, another issue which was that was as to the alleged alteration of the instrument after its execution by the testator. That issue has never been tried. No evidence was given upon it before the surrogate. There was no occasion to do so. The surrogate, upon the conclusion of the evidence offered on the part of the proponents upon the question of the due execution of the will, held that its proper execution had not been proved, and upon that ground refused to admit it to probate. There was therefore no necessity for the contestants, in view of a decision in their favor, to ask to be permitted to give evidence upon another issue. Probate of the will had been refused, and that was all that the contestants asked or desired. The general term, upon reversing have remitted the proceedings to him for the surrogate's decree, should therefore the trial of the issue as to the alteration of the proposed will after its execution. In the case of Dack v. Dack, 84 N. Y. 663, the general term made a decree similar to the one made here, and this court held that it should have remitted the case to the surrogate, to be heard upon the question not theretofore passed upon by him. There is nothing in the Code that we have been referred to which changes the rule thus laid down in the case of Dack v. Dack, and we think the judgment of the general term should be modified by providing for sending the case back to the surrogate of Monroe county to try the is. sue as to the alteration as set up in the contestants' grounds of contest. The costs should abide the final result in the surrogate's court, and be provided for as he may think proper. All concur. (131 N. Y. 262) PEASE V. EGAN. (Court of Appeals of New York. March 1, 1892.) SUBROGATION-MORTGAGES-VOLUNTEERS. J. devised certain real and personal estate to his executors in trust to receive the income of the real estate, pay one-third to his widow, and apply the other two-thirds to the maintenance of his children, and to invest the personal estate, accumulate the income thereof, and pay the aggregate over to the children at majority. The remainder in the real estate was limited to the children, the interest of each subject to be di. vested by his or her death without issue in the life-time of the widow. After the youngest child attained the age of 21, defendant, J.'s widow and executrix, paid off a mortgage of $18,000 on the real estate, out of the personal estate in her hands, devised in trust for the children. Plaintiff's testatrix, one of J.'s children, assented to the payment of the mortgage out of the personal estate, and subsequently died during the life. time of the widow, without issue. Held, that plaintiff's testatrix, in assenting to the payment of the mortgage out of the personal estate, acted, not as a volunteer, but for the purpose of protecting her contingent interest in the land; and plaintiff, as her executor, was entitled to be subrogated to the rights of the mortgagee. 15 N. Y. Supp. 200, reversed. Appeal from supreme court, general term, first department. Action by Charles G. Pease, executor of Clara E. Pease, deceased, against Clara M. Egan, executrix of John Egan, deceased. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Reversed. The other facts fully appear in the following statement by PECKHAM, J.: both had attained their majority. By the terms of the will the real estate of the testator was devised to his executor in trust to rent the same, and, after the payment of taxes, assessments, and necessary repairs and expenses, to pay one-third of the remaining income to the wife of the testator, and to apply the residue to the maintenance and education of his children, (after deducting a small annuity to be paid his sister,) until the youngest should attain the age of 21, and until the real estate should be sold, as thereinafter directed. If there were a surplus of this portion of the income from the real estate' arising during the minority of his children after their support and education were provided for, it was to be invested and accumulated for them, and paid to them upon their reaching the age of 21, together with all the personal property owned by the testator, and not included in a small bequest to his wife. Upon the death of his wife, and the attainment by his youngest child of the age of 21 years, the executors were directed to sell and convey the real estate, and give the proceeds equally to his children. If all his children attained the age of 21 years before the death of his wife, his executors were invested with power to sell the real estate before her death, provided she should consent thereto, and she and her children should make some satisfactory arrangement securing to her the payment of an annuity equal in value to the portion of the rents and income of the realty already directed to be paid her in lieu of dower. If any of his children died before the time appointed for the sale and distribution of his real estate, and should have legal issue, such issue was to take its parent's share. If any child died without issue during his wife's life, or before the sale and distribution of his estate should have been made, and should leave a brother or sister, or the issue of a brother or sister, surviving him or her, then such share of the child so dying was to go to the surviving brother or sister, and the issue of any deceased brother or sister. These are all the provisions of the will which are material here. When the mortgage became due, in May, 1877, the widow, with the consent of both children, applied $18,000 of the personal property left by the testator to the payment of the mortgage, which was thereupon satisfied of record. Subsequent to the payment of the mortgage, the widow filed an account of her proceedings as executrix with the surrogate, which contained a statement of the payment of the mortgage with the perestate to the extent of the $18,000, and she asked credit therefor in her account. The son and daughter consented to the passing of the account, and signed a written consent and waiver of further notice. After the decree of the surrogate establishing such account, the daughter married the plaintiff, and then made a motion to open the decree, which was denied. The court found there was no evidence that the daughter did not consent to the decree with full knowledge of the contents of her father's will in regard to her interest in his estate. The daughter subsequently died without issue, leaving a John Egan, a resident of the city of New York, died on the 1st day of May, 1875, leaving, him surviving, his widow, Clara M Egan, one of the defendants herein, and two children, Clara E. and Williamsonal G. Egan. He left a will, which was duly admitted to probate, and letters testamentary issued thereon to the widow. At the time of his decease he was the owner of a house and lot in the city of New York, which was subject to a mortgage made by the testator and his wife to secure the payment of $18,600. The mortgage became due on the 23d day of April, 1877. The son of the testator was born in 1851, and the daughter in 1855, and hence were, at the time of the death of their father, 24 and 20 years of age, respectively, and, when the mortgage became due, will, by which she gave all her property to the plaintiff, her husband, and named him executor. The will was duly proved, and letters testamentary issued thereon to the plaintiff. At the time of the daughter's death she left her brother surviving her. The plaintiff, after the death of his wife, commenced this action against the widow and the son of the testator, Egan, and asked that the original mortgage for $18,000 upon the premises owned by the testator at the time of his death might be foreclosed and the premises sold, and the moneys arising from such sale might be brought into court, and the plaintiff paid thereout the sum of $9,000, and interest from May 1, 1883. The plaintiff in effect asked to be subrogated to the right of the original mortgagee before the payment of the mortgage, which in equity should be regarded as assigned to him, as executor of his wife, by the mortgagee. After the commencement of this action the son died, leaving a widow and one child. He left a will of which his widow was named executrix, and the same was proved and letters duly issued thereon to her. The child was an infant under the age of 14 years. Upon supplemental complaint the son's widow and his child were made parties to the action, and they came in and defended the same,-the infant by her guardian ad litem, who submitted her rights and interests to the protection of the court. Glover, Sweezy & Glover, (Richard L. Sweezy, of counsel,) for appellant. Amasa A. Redfield, for respondent. PECKHAM, J., (after stating the facts.) The plaintiff's complaint has been dismissed in the courts below for the reason, as stated, that no case for subrogation had been made out, although the special and general terms arrived at this result by different, and to some extent opposing, views as to the construction of the testator's will. We think the construction adopted by the general term is the true one. The children, under this will, took an absolute title to the personal property of the testator (excepting a small portion bequeathed to the widow) upon their reaching the age of 21 years. This was not the case with the real estate. After the children arrived at the age of 21 years the trustee was authorized to sell, provided the widow consented, and an arrangement could be agreed upon respecting the payment of an annuity. This worked no equitable conversion of realty into personalty until an actual sale took place. None did take place. The title to the real estate remained in the trustee until it should be sold, and if a child died without issue before the death of the mother, and before any sale, the share which would otherwise have gone to such child or its issue upon the mother's death, and the subsequent sale and distribution of the proceeds of the real estate, went to the surviving brother or sister. The sister did die in the life-time of the mother, without issue, and before any sale or distribution of the proceeds of the real estate. The share of the sister in such realty or its proceeds, upon her death without issue, passed to her brother by virtue of the will of the testator. Upon these facts the rights of the parties must be determined. At the time when the mortgage for $18,000 was paid by the widow and executrix from the personal estate left by the testator, the son and daughter, having arrived at the age of 21 years, were the absolute owners of that estate. The money was taken from that estate by their mother, the executrix, with their knowledge and consent, and for the purpose of paying the mortgage on the real property. It is a fact that was admitted upon the trial of the action that the condition of the real estate market in 1877 (the time when the mortgage was paid) was such that real property could not be disposed of except at great loss. In the auswer of the adult defendants it was admitted that it was represented to the daughter, before the mort. gage was paid, that it was necessary to pay the same in order to preserve the property covered thereby, and that it was necessary and to the advantage of all parties interested that the mortgage should be paid out of the personal estate of the testator, as in no other way could funds for such purpose be obtained. Inasmuch as there was an infant defendant who could make no admissions, the general term thought the facts thus admitted by the adult defendants could not be regarded for any purpose in the consideration of the case. Assuming this to be correct, we still have the fact that the mortgage was due, and from the terms of the will it is apparent there were no funds provided thereby from which to pay it. The condition of the real-estate market was then such that real property could not be disposed of except at great loss. The interest of both children in the personal estate was that of absolute ownership, while at the same time each had but a contingent interest in the real estate. It is plain enough from these facts, as we think, that there was a necessity for raising money to pay this mortgage, and that there were no funds for this purpose, unless they were to come from the personal estate left by the testator. It is therefore true that a necessity existed to preserve the estate upon which the mortgage was a lien, and that the only way of doing it was the way which was pursued. The burden of paying this mortgage was by the terms of our statute laid upon the devisee of the realty. 1 Rev. St. p. 749, § 4. Whether the daughter was the devisee of a portion of the realty (or its proceeds as representing the realty) was not certain at the time when the payment of the mortgage was to be made. If she lived she would at some future time be entitled to a half of the realty or its proceeds, but no one could say she was, when the money was paid, entitled as devisee, for she was not. When she paid her share it could not be said she was paying her own debt in her character of devisee of the property mortgaged. She might or she might not be such devisee. Yet, notwithstanding this conditional state of affairs, it is still claimed that the devisees of the realty and the legatees of the personalty are the same, and hence, when the personal estate was taken to pay the mortgage, it was only the taking from one fund instead of another, both of which were owned by the same individuals, and for the purpose of paying a debt for the payment of which, so far as funds came to their hands from the testator, both were equally bound. This argument overlooks the contingent nature of the devise, and therefore overlooks the fact that neither child could at that time have been described as a devisee. The estate had vested in neither. Although it was but a contingent interest, yet each child had the right to protect it. When an incumbrance upon the realty be came due, and there was danger of a sacritice or destruction of the estate by a sale thereof under the mortgage, each had the right to devote his or her property to the payment of the mortgage, and the preservation of an estate which at the time neither owned, but which might become theirs at some future time. A payment by either child at such a time, or an equal payment by both, must be regarded as having been made with respect to the conditional character of the interest each had, and with a right to be placed in the position of the original creditor, when it appeared that the payment of either had been made for the preservation of an estate or an interest therein which never could be his or hers. We can regard the consent of the son and daughter to the use of this personal property by the mother for the purpose of the payment of the mortgage as of no more materiality than the voluntary use of their own property by the son and daughter for the purpose of making such payment. If a voluntary payment, under the facts of this case, would be no bar to the maintenance of this action, we see nothing constituting a defense in the fact that the daughter consented to such use by the mother. Of❘ course, the consent thus given operated as a justification to the mother to use the personal estate for the payment of the mortgage, and no attempt is now made to undo the consequences of such consent so far as she is concerned. The decree of the surrogate, founded upon that consent, is a perfect bar to any proceedings against the mother by reason of her use of this property. Upon the question involved in this case she must be considered as the agent of the daughter, applying the property of the latter, with her consent, to the payment of this mortgage, and making this application for the purpose of thereby protecting a contingent interest of the daughter in the property and saving it from destruction. In this view it may be conceded the daughter had perfect knowledge of the contents of her father's will at the time she consented to this application of the personal estate to the payment of the mortgage, and it may be conceded she knew she had only a contingent interest in the real estate incumbered. We think upon these facts this action can be maintained. I do not think the daughter occupied the position of a mere volunteer in thus assenting to the payment of this mortgage, for I think there is proof enough in this record of a necessity for her intervention for the preservation of the estate by means of the payment of such mortgage, or some part thereof. She could not, of course, tell at the time of the payment whether her contingent would ever ripen into an absolute interest in the realty or its proceeds, but she certainly was not compelled to take the risk of either allowing a sale and consequent loss of the property under this incumbrance, or of paying a portion or all of it, and losing it all upon the happening of the contingency which would terminate her interest. No rule of law would compel such an alternative. If not, then it seems to me the law would clearly imply a condition attendant upon her payment of the incumbrance, or any part thereof, that, in case it should turn out she had no interest in the property thus incumbered, she should have, as a security for the repayment of her money, the mortgage which she paid, at least to the extent necessary to enable her to obtain such repayment. The fact that in this particular case the contingency did not occur until the death of the daughter does not make any difference with the rule. The contingency might have been founded upon any other future event. The estate of the daughter is as much entitled to the right as the daughter would have been had her contingent interest terminated upon the happening of some event other than her death at a certain time. Every principle of equity would seem to call for the enforcement of this right in this case. One-half of the mortgage upon the real estate, in which, as it turns out, the daughter had no interest, has been paid with the property of the daughter, and the real estate, freed from this incumbrance, partly by means of the appropriation of the daughter's property to pay the same, goes to the son and his heirs; and, if this right of subrogation is not recognized, they may enjoy the fruits of property, a large portion of which was purchased and paid for with the money of another. As the facts have actually happened, the daughter was not responsible for the payment of any portion of the mortgage, and yet she paid one-half of it. I think the principles to be extracted from the adjudged cases are sufficiently broad and explicit to permit and demand this right. No contract is necessary upon which to base the right, for it is founded upon principles of equity and benevolence, and may be decreed where no contract exists. Cot trell's Appeal, 23 Pa. St. 294. The daughter in fact has discharged a debt against another, and in the discharge did not act as a mere volunteer. This gives a right of subrogation. Id. The fact that, if she had had an absolute interest in the property as devisee, she would have been bound to pay the mortgage to the exoneration of the testator's personal estate, does not make the mortgage debt her own. Whether she had any interest in its payment was based upon whether she was a devisee of the realty, and that was based upon a contingency which had not yet occurred; and when she paid the mortgage, or some part thereof, she took the chance of paying a debt for which she was not responsible in order |