Nor do we think that the facts proved established as matter of law that the plaintiff was so in the employ of the defendant that it could be said that the defendant found the body. Naturally the defendant was willing to provide any appliance which plaintiff needed in order to dive. But the providing of such appliances did not, as matter of law, show that plaintiff was defendant's employe. The offer of $200 for finding the body was standing open, in no way withdrawn. At the very time when the defendant's agent was providing these appliances, and at the time when by their aid the plaintiff began his work of diving, the defendant was still proclaiming that he would give $200 to the person who found the body. The plaintiff might justly have relied on this. It is true that what the defendant did aided the plaintiff in his work, and thus aided in the final result. But it was the plaintiff who found the body. And it would be a strange meaning to give to the offer of a reward, that it was not to be payable in case the defendant rendered any assistance in the search. An offer of a reward in such a case is intended to stimulate exertion by compensating success beyond the ordinary value of the work done. Unless the offer is plainly and clearly withdrawn, so that the person who attempts the work has no longer this stimulus to effort, he ought to receive what had been promised; even though he who made the offer may think that he could have had the work done at a cheaper price. Judgment reversed, new trial granted, costs to abide event. In the Matter of the Petition of GEORGE CHRISTIE et al., for Appointment of a Trustee Under the Will of Oliver Butterfield. (Supreme Court, General Term, Third Department, Filed February 18, 1891.) 1. WILL-TRUST. * * * * * * pro The will of B. gave one-third of his real and personal estate to his wife, R., and the rest to his eight children, to be paid within a year after the youngest became twenty-one. It continued: "I give all my real and personal estate to my executrix, R. in trust for the payment of the above legacies, with power to sell and dispose of the same vided, however, that no part of my real estate shall be sold until each of my said children shall have arrived at the age of twenty-one." Five of the children were minors when the testator died. Held, that as there was no authority to R. to receive rents and profits, the trust was only valid as a power, subject to which the land passed to the devisees. 2. SAME-POWER OF SALE. R. held such power, not as an independent one, but as a power attached to her office as executrix; and upon her death the power did not vest in this court, but passed to an administrator with the will annexed, to be appointed. 3. SAME-SUSPENSION OF POWER OF ALIENATION. But the trust power was void, because by it the power of alienation was suspended for more than two lives in being, i. e., during the minority of five infants. 1 R S., m. p., 723, §§ 15, 14. APPEAL by purchasers from the heirs-at-law of Oliver Butterfield of portions of his real estate from an order appointing Frank H. Graham trustee, in place of Rhoda Butterfield, executrix of Oliver, who, the said Rhoda, is now dead, to perform and execute the trust contained in the will of Oliver. The petitioners were creditors of Oliver, who died in 1868, and they held a note against Oliver. In 1876, his executor and executrix, Rhoda, gave the petitioners a note, which was put in judgment in 1881, and has not been paid. This claim is the basis of this proceeding. Young & Kellogg (A. D. Arnold, of counsel), for applts; Job G. Sherman (Matthew Hale, of counsel), for resp'ts. LEARNED, P. J.-Oliver Butterfield died July, 1868. By his will he gave one-third of his estate, real and personal, to his wife Rhoda. He gave the rest and residue, real and personal, to his eight children and one grandchild, equally, except that one daughter was to have half of the amount which others had. The legacies were to be paid within a year after the youngest child became twenty-one. He made his wife executrix and his son executor. He then continued: "I give all my real and personal estate of every kind to my wife Rhoda, executrix, in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same." * * * As there was no authority given to Rhoda, executrix, to receive the rents and profits, no estate passed to her. But this trust was valid as a power, and the land passed to the devisees, subject to the power. 1 R. S., m. p., 729, § 56. Therefore the title to the land vested at once in the devisees named in the will, and all which Rhoda, the executrix, took was a mere power in trust, which enabled her to sell the land and apply the proceeds. She had no estate as trustee. As to the onethird which was devised to her, she could sell and convey that as owner. She held that power in trust as a part of her authority as executrix; not as any independent power. There had been much discussion in the courts whether a power thus given to an executrix to sell land for the purpose of paying debts and legacies passed to the administrator with the will annexed or not. It is not necessary to go back to the old cases, beginning with De Peyster v. Clendining, 8 Paige, 295. For the matter has now been definitely settled by Mott v. Ackerman, 92 N. Y., 539, at pages 553, 554. It is there held that such power belongs to the office of executrix and passed to the administrator with the will annexed. This decision is a construction of 2 R. S., m. p., 72, § 22, defining the power of administrator with the will annexed. And thus construed that section must constitute a practical exception to the general rule, that on the death of a trustee the trust or the power in trust vests in the supreme court. 1 R. S., 730, m. p., 68; 734, 102. Hence it follows that if there be any power in trust under this will yet to be enforced, it must be enforced through an administrator with the will annexed. This is not the case of a power in trust, not connected with the office of executrix. On the contrary if this power be still in existence, it belongs to the office of the executor. And as the executrix is dead it must be executed (if at all) by an administrator with the will annexed. To hold otherwise would be to disregard the decision last cited, which must be held to have settled the question on which there had been uncertainty. There are some other difficulties in this case, and we do not intend to decide whether the petitioner is, or is not, entitled to relief in any court. It is enough to say first that this is a mere power in trust which conveyed no estate to the executrix, Rhoda: second, that the power as it is given to pay debts and legacies, and especially as real and personal estate are mingled, belongs to the office of executor and is not to be separated therefrom; third, that it would pass to the administrator with the will annexed; and fourthly, that for these reasons it is not for the court to appoint a trustee of the power and thus to separate it from the office of executor. Whether these petitioners can show themselves at this late day to be creditors of the deceased and can obtain the appointment of an administrator with the will annexed we do not decide. 2 R. S, m. p. 74, § 27. There has been great delay. It does not appear precisely when the will was proved. But it is averred that the deceased left personal property worth over $1,000, which of course would be the first fund for the payment of the debts. The executrix died July 29, 1887; and the heirs of the deceased have sold some of the land. The will There is another point which should be considered. of the deceased provides that no part of his estate shall be sold until all of his children arrive at twenty-one. At his death, five were under that age. Therefore the trust power could not be executed until these five had arrived at twenty-one. The estate of the devisees was subject to the trust power; so that they could not convey a clear title until the five minors had reached twentyone. In Henderson v. Henderson, 113 N. Y., 1, at 13; 21 N. Ÿ. State Rep., 800, it was held that a clause that executors having a power should not be compelled to make partition, etc., until five years from probate did not suspend the power of alienation. For it was said that the power of sale was not suspended when the executor was merely permitted to delay. Robert v. Corning, 89 N. Y., 225. The present case is different. The executrix is here absolutely prevented from making a sale for a time limited by the arrival of five minors at maturity. And as the existence. of this power, if valid, would suspend the absolute power of alienation by the devisees, the suspension to be valid may not be beyond the two lives limited by statute. 1 R. S., m. p. 723, § 15. The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession. can be conveyed. Section 14. Now the executrix can not execute the power until the majority of the five minors. And until that time the conveyance of the devisees would be liable to be defeated by the subsequent execution of the power. Hence the power does suspend the absolute power of alienation until that time and is therefore void. The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. LANDON and MAYHAM, JJ., concur. SELDEN S. WHITE, Resp't, v. ROBERT WILEY, App'lt. (Supreme Court, General Term, Third Department, Filed February 18, 1891.) TRESPASS-USE OF ADJOINING LANDS WHEN HIGHWAY IMPASSABLE. Where a highway is absolutely impassable a traveler may use the land of an adjoining owner without his consent; but he must go upon it near the highway and use as little of it as possible. APPEAL from judgment in favor of plaintiff for six cents damages and costs, rendered upon trial by the court without a jury. The following is the opinion at special term: PUTNAM, J.-This action is brought to recover damages for trespasses alleged to have been committed in June and July, 1889. It was originally commenced in justice's court, and, defendant pleading title, was transferred to this court. The plaintiff shows possession of and title to the premises in question prior to the alleged trespasses and the acts of trespass alleged in the complaint. Defendant's claim is that the locus in quo is a public highway; second, or that it is a private way, reserved to one Louis Baker and his assigns, and that defendant is an assignee of said Baker; third, defendant claims that at the time of the trespasses in question the highway adjoining the locus in quo was obstructed, and that defendant passed over the adjoining premises of plaintiff, necessarily to avoid such obstruction, as he lawfully might. First. I do not think that the evidence establishes the fact that the locus in quo is a public highway, even if the defendant, under the pleadings, is in a position to assert that defense, which is quite doubtful. The evidence rather shows that the locus in quo was a vacant plot in front of plaintiff's hotel, allowed to so remain by plaintiff and his grantors, and which people from time to time drove over rather by license than under a claim of right, and which plot appears to have been so used, not in any particular roadway, but in all parts of it. The evidence fails to show a highway, either by a public user for twenty years, or in any other way. Second. As to the claim asserted in the answer and on the trial, that the locus in quo was a private way reserved to Louis Baker and his assigns, and that defendant is an assignee of said Baker, I think the reservations in the deeds read in evidence to Louis Baker and his assigns should be deemed rather a right of way 'appurtenant" to some lands held by Baker, than a right of way "in gross." Washburn on Easements, 3d ed., p. 10. If appurtenant to lands, the assignee to whom the right of way is reserved is an assignee of such lands. If the right of way reserved is one in gross it seems doubtful whether it can be assigned. See Washburn, 3d ed., page 10; 3d Kent's Comment's, 419-420; 2 Bouvier, 657. But in any view of the case the reservation in the deeds could not give to Baker the right to make the public his assignee. It did not authorize Baker to make the lot in question a public highway. Yet this, in effect, is what the defendant claims. Concede that Baker could, by a proper conveyance, assign his interest in the way in question to any person or persons. It does. not follow that he could authorize the highway commissioner to use it as the public highway during the period that the highway bridge was out of repair. In my view, no assignment that Baker was authorized to make (if he was authorized to make any) was shown. It must be remembered that the lot in question was plaintiff's. He had the right to the use of it, subject only to such right in it as was reserved to Louis Baker by deed. That use, as reserved in the deed, meant only the private use by Baker or his assigns. It did not mean a public user. If the claim of defendant is correct, Baker could not only have made the lot in question a public highway for a short period, but could have just as well made it a highway perpetually, and thus deprived plaintiff of his land. think the deed gave Baker no such right. I Third. In my judgment the real question in the case is whether, under the circumstances shown, it was necessary for defendant or the public to pass over the lot in question, on account of the obstruction in the adjoining highway, caused by the defective bridge. On this question I have had, and have, serious doubts. On carefully considering the evidence in the case, I have finally reached the conclusion that the evidence fails to show any necessity for the use made by defendant of plaintiff's land. In Holmes v. Seely, 19 Wend., 510, it is said: "In respect to the public way, if there be an obstruction so as to make the ordinary track dangerous, the traveler may go extra viam, passing as near the original way as possible." In Bullard v. Harrison, 4 Maule & Sel., 387-392, quoted and approved in Williams v. Safford, 7 Barb., 310, Lord Ellenborough remarks: "That the plaintiff has no right to break out of the road and go at random over the whole surface of the close." In this case it appears that the defendant was a highway commissioner and the evidence shows that he established a ferry opposite the plaintiff's lot and built a dock on the locus in quo, and sent the public traveling on the highway through plaintiff's prem ises. I think the evidence shows that the public could have traveled on the side of the highway until they passed the bridge without at all trespassing on the plaintiff's premises. If it were necessary to do a small amount of grading to make the highway passable this should have been done by defendant. Conceding that this could not have been done by the defendant (under all the cases) he had no right to use any more of plaintiff's premises than was absolutely necessary. As held in Holmes v. Seely, supra, defendant was bound to enter plaintiff's land as near the highway as possible. It does not appear that he |