*203Under the will and codicil to it of George Maus, a freehold estate for life was vested in his sister Elizabeth. At her death the property was to be rented for the purpose of creating a fund, out of which the testator’s brothers should be maintained who were reduced to want hy sickness or age. On the decease of all his brothers the property was directed to be sold for distribution among such of his lawful heirs as might then be living. According to the decisions in Ross v. Barclay, 6 Harris 179; Waters v. Margerum, 10 P. F. Smith 44; and Evans v. Chew, 21 Id. 47, and other cases, a trust or power given to executors virtute officii, not for the purpose of administration or distribution, does not descend to the administrator with the will annexed, under the Act of March 12th 1800, or the Act of 24th February 1834. The first trust in the will, to rent the premises to create a fund for the support of the indigent or aged brothers, therefore, was not one which would by operation of law vest in the administrator with the will annexed. As the testator named no trustee of this trust, it was one to be filled by the proper court, on application of any of the parties in interest. By the terms of tbe will the trustee (on his appointment) would have a power to enter on the land and take the rents, issues and profits, in order to create the trust fund contemplated for the brothers in necessitous circumstances. This being so, it was in the power of any one having an interest in the estate to' procure the appointment of a trustee, and then compel him to enter, if an entry be necessary to bar the Statute of Limitations against a stranger who had entered into possession: Smilie v. Biffle, 2 Barr 52. Had there been an existing trustee at the death of Elizabeth Maus, that case is a direct authority that not only the legal estate, but the trust itself, would be barred by the statute, unless entry be made in time to bar the statute. But the fact that there was no existing trustee could make no difference in the case, for the power to fill the trust by appointment being plenary, and at the will of the persons in interest, they stood in a position to be visited by their own laches, as much as if there was a trustee. Not only the surviving brothers, after the death of Elizabeth, whose interest was most immediate, but any of the testator’s lawful heirs, whose interest was direct, though more distantfin the time of enjoyment, would have the power to procure the appointment of a trustee, and to compel him to enter into possession, to save the estate from the bar of the statute. The fact, therefore, that the power to sell for distribution did not take effect until the death of the last surviving brother, that is to say, twenty-five years after the death of Elizabeth, was no reason to arrest the running of the statute or postpone its operation. For the same reason the fact that the power to sell for distribution would descend to the administrator with the will annexed, according to the case of Evans v. Chew, 21 P. F. Smith 47, would not prevent the running of the statute. The statute *204having commenced to run against all the parties, the living heirs of the testator, as well as the surviving brothers interested in the first trust, would run over the subsequent power of sale for distribution, even if it should be held that the first trustee must give way to an administrator with the will annexed, to be raised to execute the power of sale. His power of sale, even with the auxiliary estate, given by the Act of 1884, to enable him to execute the power, would not be such a distinct estate in remainder, with an accruing new right of entry, postponed till the death of the last surviving brother, as would bar the running of the statute. The parties in interest in the execution of the power of sale having, as we have seen, the right to fill the trust and compel an entry, do not stand in the attitude of parties having an estate in expectancy, who could not enter until their estate fell in. The powers under this will to rent and to sell, although for different purposes, do not resemble distinct estates in succession, whose owners have no right of entry until the succession takes effect. We are of opinion, therefore, that the Statute of Limitations having commenced to run in favor of the purchaser at sheriff’s sale at the death of Elizabeth Maus, was not arrested or postponed either by the trust for renting or the power given to sell. The entry of the purchaser being under the sheriffs deed, which was at least color of title, was adverse to the interests of all who claim under the will; and though it did not commence to run against the remainder until the death of Elizabeth, it ran out its term long before this action was commenced.
Judgment affirmed.
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