majority">By the Court, Morgan, J.

It appears from the case, that all proper persons have been made parties, since the report of the referee, and consent to the judgment, except the defendants "Whaley and Robinson. Robinson is in possession under a parol contract of purchase, and having paid the consideration in full, is. the equitable owner of whatever title Whaley acquired by his deed from Jones.

These two defendants represent the same interest; and although it does not appear that Whaley has acquired the legal title of the three Vizors, who each takes one-sixth, as children of William S. Vizor, under the trust deed, and to whom that interest is awarded by the judgment, the case shows that Whaley, while in possession, claimed to have acquired their interests; but as he makes no objection to the form of the judgment or finding of the referee in respect to these interests, and all parties seem to be satisfied with the decision of the court in respect thereto, it is unnecessary to open the litigation again, in order to discover the true state of the legal title as between these several parties who have appeared and assented to the judgment, and as to which no objection is taken by the appellants.

Assuming, therefore, that the judgment is satisfactory to all the parties except the defendants Whaley and Robinson, and that they only object to the conclusions of the referee as to the operation of the trust deed, and his decision as to the admission of evidence of the declarations of Jones while in possession of the premises, it will only be necessary to examine the questions arising out of such objections; and if the referee was right in his decision as to the validity of the trust deed, and as'to the admission *77of the evidence objected to, the judgment being satisfactory in other respects, should be affirmed.

If the trust deed, so called, was invalid, the title remained in the creator of the trust, William S. Vizor, and by his conveyance to Stokes, and the-latter’s conveyance to Jones, the legal title was vested in Jones, and finally conveyed to Whaley by his deed of April 1, 1864.

When William S. Vizor executed the trust deed, the title was in Mrs. Sheldon for life, and the remainder in William S. Vizor, to whom it was devised by the will of William Vizor. Of course William S. Vizor had no interest in the land until the termination of the life estate; and his deed of trust was inoperative during the life of Mrs. Sheldon, except so far as it authorized a sale of the land for the support and maintenance of Mrs. Sheldon, in case she required it for that purpose. But it effectually disposed of the remainder, or what there was left of it, to the children or heirs of Fenner Sheldon and the said William S. Vizor, after the death of Amasa Sheldon and his wife. If, however, Amasa Sheldon had outlived his wife, the deed of trust vested in him a life estate beyond the life estate of Mrs. Sheldon created by the will.

If the trust deed is valid, it operated to enlarge the intermediate estate by extending it to two lives instead of one. But upon the termination of these two lives in being, the remainder became actually vested in the children or heirs, as the case might be, of William S. Vizor and Fenner Sheldon. It is clear, therefore, that the absolute power of alienation was not thereby extended beyond two lives in being.

But the husband of Kancy Vizor took-no title to the lands during the life of his wife. The will of William Vizor had effectually vested the life estate in, his widow, who afterwards married Amasa Sheldon. The trustee named in the trust deed (Fenner Shelden) was however empowered to sell a portion of the land for the benefit of *78Mrs. Sheldon in case of need; and such a sale, if legal, would have defeated the title to the remainder pro tanto, leaving the remainder undisposed of to pass to the heirs or children of William S. Vizor and Fenner Sheldon after the termination of the life estate.

This trust, I think, was valid. In case Amasa Sheldon survived his wife, it operated to create a trust in Fenner Sheldon to receive the rents and profits of the land and pay them over to Amasa Sheldon during his life, and upon the death of Amasa Sheldon the trust would cease and the property at once vest in the children or heirs at law of William S. Vizor and Fenner Sheldon. (1 R. S. 728, § 55, p. 730, § 67.) This trust deed also contained a general power in trust in Fenner Sheldon to dispose of the land or portions of it for the benefit of Mrs. Sheldon, and the remainder in fee was limited upon the two lives of Sheldon and wife, and was effectually conveyed to the children or heirs of Fenner Sheldon and William S. Vizor, subject to the execution of the former. (1 R. S. 729, § 58.)

In fact Fenner Sheldon died in 1853, several years before the termination of the life estate of Mrs. Sheldon, who died in 1857; but whether before or after the death of her husband, does not appear, nor is it material. If he had survived his wife, the trust would not have been suffered to fail for want of a trustee. (1 R. S. 730, § 68.) The question is not affected by the order of events; nor will the estate in remainder fail because of an intermediate trust estate, which failed; as the remainder in fee was not limited upon the trust estate, but upon the termination of the two lives in being at the time of its creation. (1 R. S. 723, § 15.)

I come to the conclusion, therefore, that the referee was right in hi§ construction of the will and the trust deed; and the only remaining question is whether the defendants’ exceptions to the rulings of the referee in the admission of evidence, are well taken.

*79This being an equity action, it is clear, I think, upon the authorities, that the court will not reverse the judgment, although the evidence was inadmissible, if from the whole case it appears the evidence could not have changed the result.

The evidence tended to show that Jones, the predecessor of Whaley, while in possession, claimed the whole interest except the right of the Kings and Mrs. Corcoran. This claim would exclude the interests awarded to Joel, Lydia and William Vizor, which included an undivided half of the premises, and would'show an adverse possession, as against them. But no objection is taken to this part of the judgment. As to the Kings and Mary Corcoran, the evidence tended to show that Jones did not claim their interest. The presumption is, that Jones occupied in accordance with the title conveyed to him, and not adversely to the title of the Kings and Mrs. Corcoran, unless he claimed title through the deed of William S. Vizor, which was doubtless executed upon the theory that the trust deed was invalid. But as that deed conveyed no title, and it does not appear that Jones entered under it, the evidence was, I think, admissible to show that his entry was not in hostility to the title of the Kings and Mrs. Corcoran. Perhaps the evidence was entirely unnecessary, as I think the law would presume that he entered into possession under the legal title conveyed to him, and not in hostility to others who claimed an undivided interest under the same title.

It is a mistake to suppose that the evidence was given to upset or overthrow Whaley’s title. He took a conveyance from Jones, and presumptively entered into possession under the legal title which was in Jones, before, his conveyance. The legal title of Jones, we have already seen, did not exclude the title of the Kings and MrSi Corcoran, nor did he claim it did. How while it is doubtless true that one tenant in common may oust his co-tenant by an *80adverse claim and possession, there is no evidence in this case of such adverse claim or possession. The referee, therefore, must have come to the same conclusion without the introduction of the evidence of Jones’ declarations. The most that can he said is, that the evidence was unnecessary, and did not change the result; but as it tended merely to prove what the law would presume without' it, the exception is unavailable to the defendant, and furnishes no ground for a new trial.

[Onondaga General Term,October 5, 1869.

In my opinion the judgment should be affirmed, with costs to be paid by the appellants.

Judgment affirmed.

Morgan, Mullin and Bacon, Justices.]

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