We cannot avoid encountering at the threshold of this case, the difficulty which in the opinion of the judge who tried the cause, was fatal to the plaintiff's action. Before we can consider or determine what estate the infant plaintiff took under the will of Robert W. Mott, in the lands described in the complaint, we are to see whether we are not to say required, but authorized to pronounce a judgment deciding or affecting that question. The defendants object to the jurisdiction of the court to entertain such an action as the present, or rather object that it would not be a proper exercise of its jurisdiction to declare the construction of this will, and even if they did not formally make such an objection, it must nevertheless be insuperable, if it exists. This court possesses all the power and exercises the functions both of the supreme court and the former court of chancery, but it has not acquired by the blending of the two tribunals any right or authority which did not belong to one or the other of their formerly separate jurisdictions. And notwithstanding all that has been said and attempted in respect to combining law and equity, the action and administration of the court is perfectly distinct in affording legal or equitable remedies, as much so as when they had to be sought in. different courts.
*113The question which we are asked to decide upon the will of Mr. Mott is a purely legal question; that is, it concerns the nature of the estates created by the will in the lands devised. There is no trust, and there is no personal estate in the distribution of which any trust could arise. It is or will be a question of title to the real estate, which unless otherwise previously disposed of, must ultimately come before a court of law, in an ejectment suit, to be brought by a party claiming these lands, or some portion of them, under one construction of these devises, against another withholding their possession under another construction. So far as this suit merely contemplates or calls for a judicial construction of this will, it falls beyond the limits of equity jurisdiction. We are forbidden to entertain such a suit, by a rule which is well settled and so far as I know inflexible. The rule is stated by Chancellor Walworth, in Bowers v. Smith, (10 Paige, 193,) and his statement meets our full approval. The counsel for the plaintiffs, who argued this appeal with a degree of learning and ability proportioned to his naturally profound interest in the question, has called our attention to the case of Ash v. Coleman, decided in this district, upon a case submitted under the code, reported in 24 Barb. 645. That case, however, does not militate against our views, for it will be found upon examination that it was an ejectment, in which the judgment was for the recovery of the land. We rendered the same judgment upon the submission of the case by the parties, as we should if one had brought an action against the other; and it must have been a judgment for the plaintiff, although its form does not appear by the report.
It is contended, however, that we must take jurisdiction of the action, as brought for a sale of the estate of the infant plaintiff, and as auxiliary to this relief, must declare what that estate is. The whole power of the court to order the sale of the lands of infants is derived from the statute. (2 R. S. 194, 195.) There is ho such original jurisdiction in a court *114of equity. (Rogers v. Dill, 6 Hill, 415. Baker v. Lorillard, 4 Comst. 266.) If this statutory jurisdiction can be exercised upon bill or complaint, as well as in the ordinary mode by petition, still there is no authority for uniting in such a suit parties who claim a legal title adverse to the infants, compelling them to litigate that claim, and pronouncing upon it, and there are insuperable objections to such a course. These parties have no interest in the question whether the infants’ interest ought to be mortgaged, leased or sold; nor have the two questions any proper relation to one another. The existence of adverse claims might be a reason why the court would not thinlc it for the interest of the infant to sell, or it might possibly lead to an opposite conclusion, and the court might in behalf of the infant, examine his title with a view to the protection of his interests as its ward. But that is a different matter from calling in his adversaries, compelling a discussion of their rights and pronouncing a judgment upon them. I do not perceive that we should be any more authorized to decide such a legal question, because our authority to authorize a disposition of the interest of one of the parties to it is invoked, than we should be without that element in the case. If a sale of an infant's estate is ordered, its completion by the purchaser does not depend upon the character, the quantity or quality of the infant’s estate, where that turns upon a contingency, or upon the construction of a devise, and is not a present,,interest. If a sale was ordered of a supposed present interest of an infant, which turned out wholly to fail in consequence of another paramount title, so that the lands belonged to another, it might be that a purchaser would not be required to pay for what the infant could not sell. But in such a case as this, the conveyance would pass her estate under the will, whatever it was, and if the court should order such a sale, I confess I do not see how a purchaser could be relieved from his purchase, if he became satisfied that she had merely a contingent remainder and not an absolute or a *115present fee. It is evident, it may be added, that the real object of this suit is to get a construction of this will, and that the sale or mortgage of the infant’s interest is a subordinate and far less material matter.
There is another ground upon which we were urged to entertain the question in its purely legal aspect, as a proceeding under the statute for the determination of claims to real estate. (2 R. S. 312.) .Such a case as this cannot, however, be brought within any fair construction of that statute. It is true that proceedings may be taken to compel the determination of a claim in reversion or remainder, as well as to the possession of lands. But in every case the claim must be adverse to the party in possession. A. B. in possession of lands for a particular time cannot compel the determination of a claim by 0. D. against E. F., who is supposed to be the party rightfully entitled after A. B.’s estate determines; nor can O. D., so long as A. B.’s estate lasts. But that is precisely what is attempted here. Mrs. Onderdonk is conceded on all hands to have a life estate in the premises. The claim of the defendants is not against her, nor so long as her estate lasts, but to the fee at her death, in a certain contingency, and against the heirs of her child or children. She cannot compel the determination of that claim, because it is not against her, and will not in any event interfere with her present estate. Her daughter, the plaintiff, who is a minor, cannot institute a proceeding during her mother’s life to compel the determination of such a claim, because she is not in possession. The statute gives the remedy only to persons in possession, and such is the plain reason of the thing. It is a substitute for an ejectment, although extended to a future as well as an immediate right to possession, if it be a right against the person holding the land.
I have not been able - to surmount the difficulty which defeated the plaintiffs at the trial, nor to see how this court could consistently with the uniform course of authority and *116the well settled rules of law and limits of jurisdiction entertain the present action.
[Dutchess General Term, May 13, 1861.It is therefore my opinion that this judgment must he affirmed.
Emott, Brown and Scrugham, Justices.]