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tion on this appeal is whether one specific objection was well taken. It is, in substance, that there may be certain persons now living, under disabilities, whose interests in the land have never been acquired by the plaintiff or his predecessors in title, and which may not be extinguished.

The earliest record we have affecting the title to the property is a conveyance made to one John Gassner on November 19, 1784, by Stoutenberg and Van Cortlandt, commissioners of forfeiture of the state of New York. John Gassner died in the year 1822, leaving a last will and testament, which was duly admitted to probate; and by that will he devised and bequeathed all his real and personal property to his executors and trustees and the survivor or survivors of them, upon the trust that, as soon as convenient after his decease, such executors and trustees should make a division of the whole estate among "the several legatees." And the will further provided that, if a division or partition could not be equally made, according to the rights of "such several legatees," without prejudice to either, then the executors and trustees, or the survivors or survivor, were required forthwith to sell, lease, or otherwise absolutely dispose of all of the estate, real or personal, as aforesaid, at public auction or otherwise, and convey the same in fee simple, and after the receipt of the moneys to arise from such sales of real and personal estate to pay the debts and funeral expenses, and then to divide all the residue "of such proceeds of my estate" into five equal parts or portions, and thereupon to pay one of them to the testator's grandsons John Gassner and Peter Gassner, sons of his eldest son, John; one other fifth part of the proceeds to David Gassner, John Gassner, and Maurice Gassner, the surviving children of his son Peter Gassner; then to pay over to each of his two sons Daniel Gassner and Andrew Gassner, or to retain for their benefit two other equal fifth parts of such proceeds, to be equally divided between them, their heirs and assigns, or the survivor of them in case either shall have died without issue, share and share alike. The testator then provided as follows:

*

"Fifthly: That my said executors and trustees so and shall as soon as convenient for them, appropriate and put out the remaining part or sum of onefifth part of my estate so as aforesaid directed to be divided and by them (in case of the sale thereof or otherwise) or so much thereof as they shall deem advisable at interest on competent * * security and pay the interest, proceeds or dividends thereof unto my daughter Mary Catharine Milderberger, the wife of John Milderberger, if living at the time of my decease, for her maintenance and support during her natural life, and for the education, maintenance and support of her children during their minority, or so much thereof as she may require according to the discretion of my said executors and trustes, upon her own receipt only, free from any control of her husband, and if such interest and dividends shall not be sufficient for her comfortable and decent support and for the proper bringing up of her children as aforesaid, that then my said executors and trustees shall and do appropriate from time to time so much of the said principal as in their opinion may be deemed necessary for the aforesaid purposes and after the death of my said daughter Mary Catharine Milderberger, that they my said executors and trustees of the survivors of them shall and do divide and pay over the residue of the said one-fifth part of my estate so remaining in their hands with interest thereon accrued and not paid out by them unto and among my grandchildren Mary Milderberger, Catharine Milderberger, Eliz

abeth Milderberger and Oliver Milderberger now living and such other child or children of my daughter born or to be born as she may leave or the survivor of them as they shall severally become of lawful age, to whom I will and devise the same equally to be divided between them and their respective heirs, share and share alike."

Daniel Gassner became the sole executor and trustee under this will. John Gassner died seised of 11 parcels of land, and it is admitted that the land No. 80 Chrystie street is one of those parcels. All of them, except the premises in question, were conveyed by the executor and trustee. In those conveyances it is recited that they were made in pursuance of the authority to sell and divide proceeds contained in the will of John Gassner, a specific division or partition among the beneficiaries under the will being impracticable. The proceeds arising from the sales of these properties were evidently divided in accordance with the provisions of the will, or in some other manner satisfactory to those who were entitled to receive them. There is no deed on record conveying No. 80 Chrystie street, but on September 3, 1825, a deed was executed by Andrew Gassner, a son of John Gassner, which conveyed all of his (Andrew Gassner's) property in trust to Peter McCartee, to pay his debts, and to manage the real estate and collect the rents and issues, and pay them over to him during his life, and for the support of his wife and children, and after his death to convey the estate to his heirs at law. No specific piece of property is described in this deed of trust, but it is a general conveyance of all and singular the lands, tene-ments, and real estate of the grantor. In 1841, McCartee having died, Burdick was appointed trustee in his place, and in 1857 the substituted trustee and the presumptive heirs at law of Andrew Gassner reconveyed the property of Andrew Gassner, and in that deed the premises No. 80 Chrystie street are specifically mentioned as forming part of the trust estate. After the death of Andrew Gassner there was a confirmatory deed executed by his children and heirs at law to Otto Doll, who was then in possession. In 1863, Andrew Gassner executed to John Rowe a lease, and in 1869 he executed and delivered a full covenant warranty deed to Rowe, who conveyed the premises in 1869, and there is no question of title since that period.

Recurring to the 10 deeds made by the executors and trustees of John Gassner's estate, it would appear that all the testator's children and grandchildren, including the then living children of his daughter Mary Catharine Milderberger, executed full releases to the executors and trustees, reciting the receipt and payment of the distributive shares of the estate to which they were severally and respectively entitled. The first release executed by Mary Catharine Milderberger reserved the sum of $14,000, "being her part or share of the estate of said John Gassner, deceased, or the balance then remaining and due thereon." But she subsequently executed another release, in which she and her children acknowledged the payment of this $14,000.

It is, we think, ascertainable from the deeds and releases and the recitals contained therein that there was a full settlement of the estate of John Gassner under and by authority of the will, and that the real estate was converted into personalty, and that those who were entitled

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took their distributive shares as legatees, received them in full, and gave acquittances for them. As before remarked, there does not appear on record any deed made of No. 80 Chrystie street by the executor and trustee of John Gassner, and the objection now taken by the defendants to the title is that rights of ownership in that piece of property may exist in some person or persons entitled under his will to an interest in that particular lot of land; and it is urged that the plaintiff cannot convey a complete title, but that, as against the interests of some who may be in being and entitled to claim under the will of John Gassner, the plaintiff can convey a right resting in adverse possession alone, and, that being so, the burden is upon the plaintiff to show that no one under the disabilities of infancy or mental incompetency has a present interest; or, in other words, must show by proof, or by reasonable inference from facts proven, that no such persons are in existence. It will be seen from the foregoing statement that this objection can apply only to children of Mary Catharine Milderberger unborn at the time of John Gassner's death in 1822, or possibly to their descendants. Every other person has released his or her interest. There is clearly in the record an adverse holding of and under Andrew Gassner from as far back as 1857, when he received from trustees a deed specifically naming this property, and his occupation thereunder was plainly against every one. It may not be altogether impossible that, even after the expiration of 80 years, some person may appear claiming to be interested in the property as a child or descendant of a child of Mary Catharine Milderberger, born after she and her then living children executed releases of their interests in the estate which they realized through the proceeds of sales and the conversion of realty into personalty; but it is highly improbable. However, we do not think the title to this property may be affected by such an objection. We are of the opinion that whoever was entitled to take under the will of John Gass ner would take only a share of the proceeds of the sale of his real estate, and not specific interests in land as such. Although, as stated, there is no deed on record made of the premises No. 80 Chrystie street, yet in the 10 deeds of other premises there are recitals that the whole estate was converted into personalty, and the releases are of all the interests of the releasors in the estate. The recitals in those deeds and releases are some evidence that the whole estate was disposed of by the executors and trustees. Jackson v. Russell, 4 Wend. 548, affirmed sub nom. Russell v. Jackson, 22 Wend. 277. Giving force to that evidence in connection with the other facts admitted in the agreed statement, we think the objection should not be sustained, that the plaintiff can give a marketable title, and that judgment should be ordered in her favor, with costs. All concur.

(96 App. Div. 301.)

FARMERS' LOAN & TRUST CO. v. HOFFMAN HOUSE (HOFFMAN HOUSE, NEW YORK, Intervener).

(Supreme Court, Appellate Division, First Department. July 13, 1904.) 1 JUDGMENTS-RES JUDICATA-SCOPE OF DECISION.

The decision of the referee on a reference to determine the amount which intervener in foreclosure proceedings should be required to pay by reason of its bid at the foreclosure sale is not res judicata of the defense raised by the petition of intervention in the foreclosure proceedings, which set out all the intervener's rights and equities in the matter.

2 INTERVENTION-RIGHTS OF INTERVENER-DISPOSITION OF ISSUES-DISMISSAL OF PETITION.

A defendant permitted to intervene in foreclosure proceedings, and setting up an issue which either wholly or partially defeats the mortgagę, occupies the same position as though it had originally interposed an answer therein, and under Code Civ. Proc. § 965, requiring issues of either law or fact to be tried as prescribed, has a right to a trial and determination of the issue so raised, which the court cannot defeat by summarily dismissing its petition.

8. REFERENCE-REPORT OF REFEREE-CONFIRMATION-EFFECT.

A decision of the court refusing to stay proceedings upon the report of a referee in foreclosure proceedings, and confirming that report, was not, and could not have been, a determination of a party's rights in the foreclosure proceedings, which were not before the referee on the reference, or the court on the motion to confirm.

Van Brunt, P. J., and Patterson, J., dissenting.

Appeal from Special Term, New York County.

Action by the Farmers' Loan & Trust Company against the Hoffman House, and Hoffman House, New York. From an order dismising a petition in intervention and vacating an order of reference, defendant last-named appeals.

Reversed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, PATTERSON, and O'BRIEN, JJ.

David McClure, for appellant.

Charles E. Hughes, for respondent.

HATCH, J. The defendant Hoffman House, New York, was permitted to intervene in the foreclosure action of the Farmers' Loan & Trust Company against the defendant the Hoffman House. The order of intervention was based upon a petition of the Hoffman House, New York, wherein was set out all the rights and equities of this defendant to which it claimed to be allowed on account of the dealings of the receiver pendente lite with the property in the foreclosure action and otherwise. The petition is long, and makes various claims not necessary now to be stated. The proceedings which have been had, and the facts connected therewith, will be found stated in Stokes v. Hoffman House, 46 App. Div. 120, 61 N. Y. Supp. 821, s. c. on appeal 167 N. Y. 554, 60 N. E. 667, 53 L. R. A. 870. The Court of Appeals, in its decision, declined to settle the equities between these parties in that action, but held that the Hoffman House, New York, was entitled to

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have considered upon its purchase at the foreclosure sale all of the equities in its favor which might be urged in reduction of the amount which it was required to pay on account of its bid, and to have adjusted all equities which arose between it and the receiver, or otherwise, to which it might be entitled as purchaser or otherwise. In the discussion of what those equities were, and how and where they might be determined, the Court of Appeals used this language: "All these matters, however, are questions which can be determined only in the foreclosure action, and upon which we do not pass." Following this decision, the intervention was ordered, and issue was joined by the service of answers thereto by all the parties in interest, and the issues thus raised were referred, but seem never to have been disposed of. Thereafter an order of reference was entered, while the foregoing proceeding was pending, to a referee, to take proof and ascertain the amount which the Hoffman House, New York, as purchaser, should be required to pay on account of its bid, the amounts properly chargeable against the gross proceeds of the sale for expenses, etc., and to ascertain the value of the outstanding 125 mortgage bonds; it being recited in the order that it was to enable the court to fix and determine the value of the bonds, and the amount payable under the $35,000 bond which had been given by the Hoffman House, New York, as indemnity to protect the mortgagee for the amount it should be entitled to receive upon the foreclosure. Hearings thereon were had before the referee, and he finally made his report, in which it is claimed that all of the equities which existed in favor of the Hoffman House, New York, and to which it was entitled, were allowed by the referee, and deducted from the amount which the Hoffman House, New York, was required to pay to complete its purchase. After this report had been delivered, a motion was made to stay its confirmation until disposition was had of the issues raised by the intervention proceeding. This motion was denied, the report was confirmed by the court, and, upon appeal by the intervener to this court, the order was affirmed. Farmers' L. & T. Co. v. Hoffman House, New York, 86 App. Div. 617, 83 N. Y. Supp. 364. Thereafter this motion was made and granted, based upon the ground that the Hoffman House, New York, had been allowed for everything in deduction of the amount of its bid on the foreclosure sale to which it was entitled, and that, as it appeared before the referee and litigated all of the questions, it could take nothing of benefit by further continuing that action, and therefore the court had power to end a fruitless litigation by the dismissal of such proceedings.

The question presented upon this appeal is one of right of a defendant who has properly intervened in an action to have the issues. raised therein settled therein, and of the power of the court to deprive the litigant of such right. It is quite evident that the determination of the referee in the special proceeding to arrive at the amount which the purchaser should pay by reason of its bid at the foreclosure sale is not res adjudicata of the defense raised by the petition of intervention, and pending as an issue in the foreclosure action.

In the proceeding before the referee the issues were limited