REYNOLDS, C.

On the 2d day of April, 1855, William Pearsons conveyed to Margaret Dunning a farm, in the county of Jefferson; and, to secure a part of the purchase-money, she gave a mortgage for $4,500. This mortgage, by various assignments, became the property of the defendant on the 7th day of December, 1858. Under the power of sale contained in the mortgage, and in pursuance of the statute, the defendant caused the farm to be sold on the 2d day of July, 1861, and purchased it at $5,190; and the surplus money thence arising was $1,833.78, which the defendant has ever since and now retains. Margaret Dunning, the owner of the farm, subject, of course, to the mortgage, died on the 19th day of October, 1857, leaving a last will and testament, which was duly admitted to probate on the 3d day of January, 1859.

By this will the farm, covered by the mortgage before referred to (and in respect to the surplus arising upon the foreclosure sale of which the question now in controversy arises) was devised to her "executors hereinafter named," with the rents and profits, in trust, for the use of her then husband and two sons, as follows: To the husband the income and profits of the farm "from time to time, in the discretion of my said executor, for the necessary support and maintenance of my said husband during his natural life." It was further, in substance, declared that if the income of the farm should be insufficient to support the husband, then the executor might mortgage or sell the whole or any part, as he "shall deem most for the interest of my said husband and children," and invest the money for the benefit of the husband. In case the farm was not sold during the life of the husband, the executor was then ordered, as soon after the death of the husband as "may be," to sell the farm for the best price to be obtained, and pay one-half of the money to two daughters, and the other half to be invested for seven years, for the benefit of two sons, in a special manner directed. Without stating the contents of the will in more detail or considering the validity of any of the trusts attempted to be created, enough has been said to enable us to consider the only question involved in the case, and that is, whether the plaintiff's claim was barred by the statute of limitations. This appears to have been the only question considered by the Supreme Court.

A few further facts are now necessary to be stated: Jennings, the executor named in the will of Margaret Dunning, renounced all his "right and claims to act as executor of the said will," and the renunciation was duly filed on the 29th of January, 1859. On the 11th of March, 1859, letters of administration, with the will annexed, were duly granted to Mary S. Dunning, the present plaintiff. On the 28th day of December, 1869, Mary S. Dunning was duly appointed by the Supreme Court a trustee to carry out the trusts imposed upon the executor named in the will of Margaret Dunning, and this she accepted; and this action was brought under her supposed authority as trustee under that appointment; and, if the cause of action against the defendant did not, in the sense of the law, accrue until that appointment, it is very clear that the plaintiff was entitled to recover.

It is urged that when the plaintiff was granted letters of administration with the will of Margaret Dunning annexed, on the 11th of March, 1859, the cause of action in the present case accrued, and that she might, in that capacity, assert in the courts her right to recover all the assets belonging to the estate of the testatrix, Margaret Dunning. This might, indeed, be in every thing regarded as general assets of the estate of the decedent; but in this case a very different question is presented. The farm in question was devoted, in trust, to a special purpose, which does not appear to have had any necessary connection with the disposition of the residue of her estate. We cannot, therefore, dispose of this case without considering the questions whether the plaintiff, as administratrix with the will annexed, succeeded to all the powers in trust intended to be confided to the original executor named in the will. If such be the law it is very obvious that the action was barred; and the same result will follow if the plaintiff, when appointed administratrix cum testamento annexo, or when the surplus was produced on the foreclosure sale, she had in that capacity an immediate right of action to recover it.

At the common law, an executor or administrator had nothing to do with any thing, save the mere personal assets of the testator or intestate; and it is now the law that an administrator has no further authority, save where, by statute, he may apply to a court of competent jurisdiction, upon a proper state of facts, for the sale of the real estate of his intestate, for the payment of his debts. It is said, in the old books, and the rule is still, to a large extent, preserved, that an executor merely takes by force of the probate of the will, and that this legal office of executor does not necessarily embrace naked powers respecting real estate, specially conferred, or powers coupled with an interest or trust of any kind, and it is not too much to say that the appointment of a trustee, named in a will, of all the personal estate of a testator, would not have made him an executor at the common law. ( The King v. Jenkins, 1 Dowl. Ryl., 41.) The distinction between the mere executorial powers, derived from the probate of a will, and powers given to a person named as executor, in respect to real estate, either naked or in trust, with an interest, has not, I think, always been very carefully considered, so far as the adjudged cases enable me to discover. In the case at bar, it is, I think, very obvious that the testatrix intended to make her executor a trustee, with large discretionary power, which he might exercise without any reference to his duty as an executor. This trust duty was not annexed to the office of executor, but was devised to him as a person. He might, therefore, accept and execute the trust without proving the will or taking out letters testamentary. He became trustee, and was vested with the trust estate by virtue of the will alone. ( Judson v. Gibbons, 5 Wend., 225; Conklin v. Egerton, 21 id., 430; S.C., 25 id., 224; Roome v. Phillips, 27 N.Y., 357, 363.) This being so, it of course follows that the plaintiff, as administratrix, with the will annexed, did not succeed to any right concerning the trust estate, which she, by virtue of that office, could enforce, unless, upon her application to some court of competent jurisdiction, the real estate embraced in the trust might be ordered sold for the payment of the debts of the testatrix. The farm in question having been devised by the will to Jennings, the executor named, it might be assumed, if nothing to the contrary was shown, that he had accepted the trust. In such case his right of action to recover the trust estate or its proceeds, or the surplus money in dispute, would accrue at once, and, if not asserted within the proper period of limitation, would be forever barred. The evidence or findings in the present case are quite sufficient to establish the fact that Jennings never did, and never intended to, accept the trust. While his renunciation of the office of executor would not necessarily divest him of his right to execute the trust, it is some evidence that he intended to have nothing to do with the estate, and it abundantly appears, as a matter of fact, that he and all concerned understood that he refused to accept the trust.

It was the practice in such cases, in earlier times, to require the renouncing trustee to execute a release to his associate trustees, or to execute a deed of disclaimer. (1 Cruise, 539.) In this case the trustee had no associates, and could make no release; and a formal deed of disclaimer appears not to be regarded as necessary in the present condition of the law. ( Burritt v. Silliman, 13 N.Y., 93; Townson v. Tickell, 3 B. Ald., 31.) If the foregoing views are correct, it follows that, until the appointment of the plaintiff by the Supreme Court, on the 28th of December, 1869, as trustee in the place of Jennings, there was no party legally existing in whom a right of action vested to recover the money in controversy. ( Bucklin v. Ford, 5 Barb., 395; Angell on Limitations, §§ 54, 62; Davis v. Garr, 2 Seld., 124.)

We are referred by the learned counsel for the appellant to chapter 658 of the Laws of 1867 as having some application to the present case, but it has none. The rights of all parties to the surplus in dispute had been irrevocably fixed before the act was passed, and they could not be affected by any subsequent legislation. Besides, the act, in its very terms, cannot be applied to this case, in any possible aspect, so far as I can discover. But as the defendant never paid the surplus claimed into any Surrogate's Court, in any supposed compliance with the statute referred to, or to any other court or person, we find no occasion to consider the question further.

The judgment below should be affirmed, with costs.