There is no dispute about the facts in this case, and they sufficiently appear by the return to the certiorari, upon' which the case comes before us. But the points really taken on the argument are, 1st, has this executor any right to continue the proceedings commenced by his testatrix ? By her will the executor was authorized to control and manage the real estate, during the minority of the devisees; to “receive the rents, issues and profits” thereof, and to expend them for certain specified uses. He is thus, though called executor, the trustee of a valid active trust, and as such has the legal title and an actual estate in this real estate. (2 Gomst. 19, 298.) It seems to me that such a trustee has, and is the only person who has, the right to go on with this proceeding. Naming him as executor (in the proceeding) does not show that he proceeds as executor, but, in connection with the will, shows that he is the trustee pointed out by the will; he is trustee, by being executor.
The other point to be decided is, had the county court jurisdiction of the matter, so that it could appoint referees ? This must be answered by arriving at the true construction of the statutes relating to the laying out of private roads. There is, *80doubtless, some lack of precision in the words used in the statutes; as they speak of “highways,” “roads” and “private roads,” if not interchangeably, at least without careful discrimination. I think, however, that reading the statutes (1 R. S. 4th ed. 1040 to 1048; L. of 1853, 308, 9,10,) will lead most persons to the conclusion that highway and road are used as nearly, if not quite, synonymous; while a private road is almost invariably specified as private. (See 9 John. 349.) Still I do hot deem this construction absolutely essential to the decision of the case, since taking the law of 1853, (as above cited,) in connection with section 8 of chapter 455 of Laws of 1847, p. 584, (1 R. S. 4th ed. 1047, § 103,) I am unable to see that the county court has power to appoint referees; or that any appeal lies to the county court, save in a case where the “determination” (or decision) for or against the laying out &c. of a road, is made by the commissioners of highways. That their act is judicial—is a decision—is not merely founded on my understanding of the language of the statutes, but is sustained by Chief Justice LTelson, (25 Wend. 454:) “ The statute contemplates the judgment of three distinct bodies of men, if desired, &c. 1. the freeholders; 2. the commissioners of highways; 3. the judges ”—two of which bodies must concur in laying out &c. (See also 24 Wend. 495.) But, in the case of a private road, the commissioners have no power to determine or decide any thing. The act of 1853 (L. of 1833, p. 309, § 10) provides “if they (the jury) shall determine that the proj>osed road is necessary, they shall assess &c., and shall deliver their verdict, in writing, to the commissioners;” and by section 12, the commissioners shall annex to such verdict the application, &c., and hand the same to the town clerk, who shall file the same, and “the commissioners shall lay out and make a record of said road as described in the petition of the applicant.” As section 17 (page 310) of the same act repeals other provisions, these are the statutes now regelating appeals and the laying out of private roads; and an appeal is strictly created by and to be governed by the stat*81ute. I cannot see any right of appeal to the county court, from the verdict of the jury given as to this road, and it must he adjudged that all the proceedings in that court are void, for want of jurisdiction. They must he set aside.
[Albany General Term, September 6, 1858.William, B. Wright, Gould and D. Wright, Justices.]