The rule of law respecting partial occupancy applies to land used in one body according to the custom of the country, but has no application to this case. No part of this land was inclosed or occupied, and such use as was made of the shore at the southwest corner was neither permanent nor continuous.

Moreover, the procurement of deeds from persons not shown to be the owners and an entry, such as was made under them in this case, is entirely insufficient to initiate a claim to an adverse possession. Beach v. The Mayor, 45 How. Pr., 368; People v. Livingston, 8 Barb., 255; Sharp v. Brandow, 15 Wend., 597.

Again, the predecessors of the plaintiffs, being the owners of the land, were at all times constructively in the possession thereof, unless it was in the actual hostile occupation of another under a claim of title, Bliss v. Johnson, 94 N. Y., 242, and the defendant shows no occupation of the land at any time. Taking ice from the surface of the water was no occupation of the land. It was akin to a profit taken from the soil of others, and even that was repeated but once a year, but the claim of a right to take ice from the pond can only be sustained by a prescription, and such a claim cannot be sustained as a prescriptive right, because it cannot exist separately from an estate to which it is attached. Roe v. Strong, 107 N. Y., 360; 12 N. Y. State Rep., 56; 20 Wend., 123; Angell on Tide Waters, 272; 2 Greenl. Ev., 540; Gould on Waters, § 25.

In the case of Wheeler v. Spinola, supra, it was held that the cutting of salt grass annually upon an uninclosed lot for twenty years was insufficient to constitute a possession adequate to confer title, and that was manifestly a much stronger case than this. In the case of Miller v. Downing, 54 N. Y., 631, it was held that a person who maintains a woodpile upon a vacant lot for thirty years acquired no title thereby.

Another principle of law is that a fee will not be implied from user where an easement would secure the privilege enjoyed. Roe v. Strong, 107 N. Y., 359; 12 N. Y. State Rep., 56; Gould on Waters, 22.

In no respect, therefore, have the acts done upon the premises in dispute responded to the requirements of the statute, or been sufficient to constitute a possession which can be deemed adverse. Neither are the plaintiffs estopped from the assertion of their legal rights, because they were never aware of the expenditure of money upon or near the premises, and neither the defendant nor its predecessors have been influenced by any conduct of the plaintiffs or those under whom they claim. Moreover, the trial judge has found that no considerable expenditures for permanent improvements were made upon the premises in question.

Our examination has proceeded far enough to show that the judgment appealed from is erroneous, although there are other important and interesting questions involved which we do not examine or decide.

The judgment should be reversed and a new trial granted, with costs to abide the event.

CULLEN, J., concurs.

PRATT, J. (dissenting). These two actions depend upon the same question. One of them is in ejectment, and the other is for trespass. The primary inquiry in each is whether or not the plaintiffs owned the premises in question at the commencement of the action.

The locus in quo is a pond in Putnam county, sometimes known as Hinckley Pond and again as Croton Lake, and there is ground in the evidence for the statement that the pond was sometimes known as Muddy Brook, although the latter name has for many years been applied exclusively to the outlet.

The learned trial judge, upon conflicting evidence, has found that there is a slight current running through this so-called pond from its inlets to its outlet. It is a natural basin, a widening of two small streams at and below their confluence; but the evidence, we think, justifies the inference that it is and must be classed as a watercourse, and our conclusion is that it was properly treated as such. It is non-navigable except for small row boats or skiffs.

The plaintiffs' ancestors undoubtedly owned the land about this so-called pond; and, by various conveyances, bounded in part by the pond, have conveyed away the whole or substantially all of the adjacent upland. They say, however, that because these va rious conveyances run "to the pond" or to some monument on the land at the water, and thence along the pond, sometimes by given courses and distances, and sometimes without any, but generally to some other monument on the bank, and thence away from the water, and so about to a place of beginning, the water edge, is, therefore, a boundary on that side, so that the water and the land under water has never, as they claim, been conveyed, and is still owned by them. The learned trial judge, in view of all the facts submitted to him, has held that these conveyances run to the center or thread of the stream of which the pond is only a part. We conclude that this is the correct view. It has been so clearly put in the opinion delivered at the trial term, that, notwithstanding the exceedingly ingenious, exhaustive, and plausible argument of plaintiffs' counsel, it is unnecessary to do more than express our concurrence in the conclusions there expressed. The plaintiffs are, undoubtedly, correct in the position that, generally speaking, fixed monuments are conclusive when referred to in grants. But the case of a monument on the bank of a stream seems an exception to that rule, unless it clearly and affirmatively appears that it was the purpose to exclude the water and land under it to the thread of the water course.

The authorities cited, and those therein referred to, clearly show that where a grant of land is bounded by a non-navigable natural watercourse, it extends to the thread of the stream, notwithstanding the fact that the courses and distances run to specified monuments on the bank. This is because of the fact that it is impracticable, if not impossible, in specifying such a boundary, to set it up or fix a monument at the exact line in the water, especially at the thread of a stream.

There are one or two deeds which, at first blush, might seem to form exceptions to the application of this general rule, but

taking the grants of plaintiffs' ancestors together with all the other facts and circumstances, especially the great delay in asserting the theory upon which plaintiffs rely, and also in view of the great outlay which defendants and others engaged in like pursuits have made on this pond for business purposes, we think that it is now too late for plaintiffs to claim that the water and the land under water of this pond was not included in these grants. This history shows, or, at least, strongly tends to show acquiescence in this construction of these grants.

We do not deem it necessary to examine any of the other questions.

Judgment reversed and new trial granted, with costs to abide

the event.

FIELDING S. WILLIAMS, PI', v. LUCY E. WILLIAMS, Adm'rx, Def't.

(Supreme Court, Special Term, New York County, Filed April, 1890.) 1. PLEADING-DEMURRER.

An objection that the complaint does not state facts sufficient to constitute a cause of action is a complete answer to a demurrer to the answer.

2. SAME-ACTION TO ENFORCE AGREEMENT TO LEAVE PROPERTY BY WILLPARTIES.

A complaint in an action against an administratrix which alleges that for a consideration the decedent agreed that if he died without wife or children he would leave the income of his estate to his mother for life and the whole estate on her death, or in case she did not survive him, to plaintiff, and praying for judgment that the agreement be carried out, does not state a good cause of action against the defendant.

DEMURRER to answer.

Thomas Jackson, for pl'ff; Butler, Stillman & Hubbard, for def't.

O'BRIEN, J.-If the facts stated in the complaint were sufficient to constitute a cause of action as against the defendant, I am of opinion that the demurrer to the ninth and tenth defenses is well taken.

As to the ninth paragraph of the answer, it does not tend to defeat or diminish plaintiff's recovery, and therefore is not of the character specified in § 501 of the Code.

No debt or amount whatever could impair plaintiff's recovery; for the judgment he demands comprehends the whole estate of which a debt due the estate from himself or anyone else is a part.

The tenth count in the answer does not state a counterclaim or defense. The facts stated do not constitute an estoppel against plaintiff, nor is it there alleged that he has released the estate from his claim, nor that his accounting before the surrogate bars as suit as res adjudicata.

It might well be that these matters, if admitted as evidence, might have a tendency to show the reason for, and the improbability of, the present claim made by plaintiff, but, as a defense, this count is clearly insufficient.

It has been settled, however, that upon the argument of a deN. Y. STATE REP., VOL. XXXIII. 2

murrer to an answer the defendant may raise the objection that the complaint itself does not state facts sufficient to constitute a cause of action, and such an objection, if well taken, is not only a complete answer to the demurrer, but should result in the dismissal of the complaint.

In People v. Booth, 32 N. Y., 397, it was said: "On demurrer to an answer for insufficiency the defendants are at liberty to attack the complaint upon the ground that it does not state facts sufficient to constitute a cause of action." See also Wilmore v. Flack, 16 W. Dig., 236; Parsons v. Hayes, 50 N. Y. Supr. Ct., 29; Graham v. Dunnigan, 6 Duer, 629.

The objection having been taken, therefore, the question is presented whether the action is properly brought against the defendant as administratrix.

The complaint alleges that for a consideration the intestate agreed that should he die without wife or children he would leave the income of his estate to his mother for life, and the whole estate upon her death, or if she did not survive him, to the plaintiff were he then living, otherwise to plaintiff's children; that he died without wife or children, but did not fulfill his agreement; wherefore judgment is prayed for that the terms of the agreement be carried out.

It will thus be seen that this action is brought to recover, not a part, but the entire estate, consisting as it may, for aught that appears in the complaint, of both real and personal property within this state. Such an action is not intended to affect the administration, but the distribution of the estate.

It is not a claim against, but to the estate. In effect it is asking the court to make a will which it is alleged the decedent promised and failed to make. It seems reasonably free from doubt that in such an action the heirs at law and next of kin, and not the administratrix, are the real parties in interest, and therefore it should be as against them that the plaintiff should assert his

claim.

The complaint states a cause of action, therefore, which is good as against the heirs and next of kin, but which is bad as against the present defendant, who is sued as administratrix. While, therefore, the plaintiff's demurrer would have been sustained to the ninth and tenth defenses, there should be judgment for the defendants, dismissing the complaint for a failure to state facts sufficient to constitute a cause of action, but with leave to serve an amended complaint upon payment of costs.

In the Matter of the estate of JAMES P. SHED, Deceased.

(Surrogate's Court, Chautauqua County, Filed September 8, 1890.) EXECUTORS AND ADMINISTRATORS-INVENTORY.

The deceased died October 10, 1889, leaving a widow and three children of full age. He and his wife had not lived together during ten years prior to his death, and he had not kept house. He left by her three children; a daughter fourteen years old at the time her father and mother ceased living together, and until of age she lived with her mother a greater portion of the time and was boarded by her, her father paying for her clothes

but not for her board. Held, that the widow was interested in the estate of her deceased husband, and a member of his family at his death, within the meaning of the statutes relating to widows' exemptions.

MOTION by a widow to compel return of inventory, and set apart property for her exemptions.

Obel Edson, for widow, the petitioner: F W. Stevens, for executor and legatee.

SHERMAN S.-The testator died October 10, 1889, leaving real estate of the value of $800 and personal, $3,000, and three children, two sons and one daughter aged 42, 40 and 24 years, respectively; and a widow aged 65 years, the mother of said children. By his will he bequeathed and devised all his property to his son, Ezra H. Shedd, and appointed him executor. He and his wife had not lived together during ten years previously to his death, and he had not during that time kept house, or had any servants. At the time he and his wife ceased living together, the daughter was 14 years old, and thereafter lived with her mother the greater part of the time until she was of age, and her mother boarded her and her father paid for her clothing and all her bills, but not for her board.

During a year and a half after such husband and wife ceased living together he did contribute to her support to some extent. No cause is assigned for their ceasing to live together as husband and wife, nor for his entire neglect to aid in her support during the eight and one-half years immediately preceding his death. During à portion of said ten years they lived in the same neighborhood

but not in the same house.

Application is made by the widow for an inventory and to order the executor to set apart property to her under the statutes relating to widows' exemptions, and is opposed upon the grounds that the widow at the time of her husband's death was not a member of his family, and is in no way interested in his estate, and that the deceased died leaving no family, and therefore that the statute which provides for exemptions by its terms only "where a man having a family shall die leaving a widow or minor child or children, the following articles shall not be deemed assets but shall be included and stated in the inventory, without being appraised," does not apply to this case upon the undisputed facts stated above.

I am of the opinion that this statute must receive a broader and more liberal construction than that claimed by the learned counsel for the contestant. For numerous legal meanings of the word "family," see Bouvier's New Law Dictionary, defining such word as used in statutes of different states, and decisions of courts. The very terms of the statute provide that the family of the deceased testator may consist solely of his surviving wife or minor child. Whether such widow or child may have been living with, and been supported by him at his death, would seem to be immaterial. There is nothing in this case tending to show that the wife was ever unfaithful to her marriage vows. The whole trend of legal authorities appears to conserve the rights of the widow to her