Appeal, No. 268, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 823, ou special verdict for defendant.

Ejectment. Before Porter, J.

The juiy returned the followiug special verdict:

“ Barnet Gilleland died seized in fee of the land described in the writ, on Nov. 1, 1845, and by his will, dated March 13, 1844, probated Nov. 10, 1845, and of record, etc., which will is hereby made a part of this special verdict, devised, in the sixth paragraph of said will, a share in real estate, then undivided, to his son William, as trustee of his daughter Lydia Wallace, upon the uses and trusts in said will set forth, and by subsequent conveyances and partitions between said William, acting as trustee under said will, and the other devisees, the land described in the writ became vested in the said William as trustee of Lydia Wallace, upon the uses and trusts in the sixth paragraph of said will set forth.

“ Lydia Wallace had been married to James Wallace in 1842, and was, at the date of the will and continued until the death of the testator, childless. In 1847, a son, James S. Wallace, was born of her body. In 1849, a daughter, Maggie Wallace, was born, and died in infancy in the year 1851.

“In 1873, James S. Wallace, the son, was adjudged a bankrupt and John M. Kennedj^ Esq., was duly appointed his assignee, and a general assignment of his property, in the usual form, executed to said assignee by the register in bankruptcy. The land in question was not included in the schedules.

“ The assignee in bankruptcy of James S. Wallace sold the interest of James S. Wallace, the bankrupt, in the land in question to Benjamin F. Wilson, the plaintiff in this action. The sale was confirmed b}r the District Court of the United States, and the assignee executed a deed for the land on July 15, 1875.

“ Lydia Wallace, mother of James S. Wallace, died in May, 1880, the said James S. Wallace being the only issue to survive her.

“ William Gilleland, the son of Barnet Gilleland, named as trustee in the will, never exercised the power to surrender and assign the trust conferred upon him by the fourteenth paragraph of his father’s will.

“ On June 7, 1881, the Woods Run Savings Fund and Loan Association, defendant in this action, obtained a judgment against James S. Wallace, the son, and under the subsequent proceedings upon said judgment the land in question was sold by the sheriff of Allegheny county as the land of said James S. Wallace and was bought in by the Woods Run Savings Fund and Loan Association, and William McCallin, the sheriff of Allegheny county, executed to said purchaser, the defendant in this action, a sheriff’s deed therefor, in accordance with said sale.

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