majority"> Hutchinson, J.

delivered the opinion of the Court.

Upon the trial of this cause a verdict was taken for the plaintiffs, subject to the opinion of this court, upon a case to be stated. The case is agreed upon by the parties, and now before the Court. Upon this case, three questions are raised, and now to be decided: 1st. Whether the decision of the Court was right in admitting the deed of Joshua Staunton to his daughter Sarah Peaslee, which was offered by the plaintiffs, to be read to the jury ? The objection is, not that there is any defect in the deed, any want of formality in its execution; but that it does not comprise the land in dispute. The description is, “ The whole of that farm, &c. containing one hundred and forty acres, be the same more or less, and is the same farm which I purchased of Samuel Lane, Esq. on which David Staunton formerly lived.” It appears that the whole farm above mentioned did once contain 206 acres, and did comprise the land now in dispute; but that, at a later period, and before the date of said deed from said Joshua to said Sarah, the proprietors, in making their division of the land in town, surveyed off" the piece in dispute, and set it to the right of one Frost, leaving 140 acres. Now it is contended, that Staunton must have intended to convey what was left, after the taking off the piece set to Frost. And a very forcible argument is raised to this effect; but the Court consider it properly addressed to the jury, and not to the Court. The deed was properly admitted; for possibly, and very probably, it may comprise the land in question. And whether it does or not, must depend upon proof dehors the deed. What land was conveyed by Lane to J. Staunton; on what farm David *23Staunton once lived, and the extent of it; and what the extent of that visible occupancy which would create a possessory title, are all points to be decided by the jury. And the facts stated in the case, that the whole farm contained 206 acres; that taking off the piece in question for Frost, leaves 140 acres; that Staunton’s deed to his daughter mentions the latter quantity only; that David Staunton’s actual improvements were all on the 140 acres, and not on the piece in question ; furnished strong grounds for the jury to find, that the deed from J. Staunton to his daughter Sarah Peaslee was not intended to comprise the land in question. But the opposing proof, that the whole farm conveyed by Lane to J. Staunton, being 206 acres, was the farm on which David Staunton lived, must have taken effect with the jury; and their verdict has settled the question.

The second question raised upon the case is, whether the title to the premises has so passed to the plaintiffs, under the will of Sarah Peaslee, that the plaintiffs can support an action of ejectment upon that title?

Sarah Peaslee, in her will, gives the exclusive use-and benefit of the land in question to her daughter Maria; but appoints three trustees, Stephen M. Mitchell, Solomon Miller and Charles Mitchell, and devises and bequeaths to them ail her estate, in trust, to give effect to the other provisions of her will. This would give these original trustees, or such of them as accepted the trust, a good right to recover this land for the benefit of Maria. None of these original trustees are plaintiffs; but the plaintiffs claim to derive title from them, the validity of which is now disputed by the defendants; for they contend, that those trustees, who accepted the trust, could not transfer it to others; they could fill vacancies occasioned by non-acceptance or death of other trustees, and here their power ceases: they cannot create successors to themselves. This is viewing them as having no powers, but what are expressly given by the will. But the Court consider that, if Charles Mitchell and Solomon Miller, after the decease of S. M. Mitchell, the other original'trustee, held the legal estate in the premises, in trust for Maria, their conveyance of the same to the plaintiffs would vest in them the legal estate which they would hold, subject to the same trusts, and strangers to the trust have no right to complain. The cestui que trust alone can call them to an account, or have process to compel such conveyance as would subserve the object of the trust. This is not at all to be compared to the case of a mere power of attorney, with no right of substitution. But they hold the estate, and convey, with the approbation of Maria, given according to the terms of the will. This conveyance must, of course, be good to convey whatever estate was vested in Charles Mitchell and Solomon Miller. There is some difficulty in deciding that the estate was ever vested in them; for it would not become vested by the creation of the trust in and by the will, without an acceptance, also, by the trustees. There appears no evidence of any explicit acceptance of the *24trust, either by C. Mitchell or S. Miller. But, upon mature consideration, the Court decide, that their convejances to the plaintiffs are sufficient evidence of their acceptance of the trust for the present purpose; sufficient evidence of their consenting and agreeing to become the conduit, through which the legal estate should pass to the plaintiffs, in trust for Maria.

William A. Griswold, attorney for the plaintiffs. Charles Adams, attorney for the defendant.

The third question arising in the case is, whether the deed to the plaintiffs is rendered void by the adverse possession of the defendant, at its date? The Court consider it not void. The case is not within the meaning of the statute of frauds; it is not attended with any of the mischiefs against which the statute provides, and ought not to be adjudged within the provisions of the act. Here is no conveyance of any beneficial interest, but only passing a trust estate from one to another; the beneficial interest still remaining in the same persons. It is a doing that voluntarily, which a court of chancery would compel, if refused.

These several questions being thus disposed of, the Court direct judgment to be entered for the plaintiffs, upon the verdict.

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