By the Court
Johnson, J.The clear and manifest intention of the testator, to he gathered from the language and provisions of the will was to devise to his children then living two-thirds of his estate, and to his wife one-third, and to give to his wife the possession and use of the whole for her own benefit, until the happening of the event or events specified, viz.: “ Until my youngest child, David Cyrus Tracy, shall have attained the age of twenty-one years, or in case he should not live to that age, until the age of the next youngest child shall reach twenty-one years.” The testator *505at the time of making his will, and at his death, had three children who are the plaintiffs in this action, and the youngest had attained the age of twenty-one years before this action was commenced.
The widow of the testator, therefore, at his death took by virtue of the will an estate of inheritance in one-third of the veal estate in possession, and an estate for years in the other two-thirds.
The children took by the will a remainder in fee of the two-thirds, as tenants in common. It was in them a future estate limited to commence in possession on the determination by lapse of time of the precedent estate for years in their mother. It vested in them immediately upon the death of the testator. (1 R. S., 723, §§ 7, 8, 9, 10, 11, 13; Powers v. Bergen, 6 N.Y., p. 360; Campbell v. Rawden, 8 id., 412, 418.)
This estate in the children was descendible, devisable, and alienable, the same as though it had been in their immediate possession.
It is claimed on behalf of the plaintiffs that the will is void absolutely on the ground that it suspends the absolute power of alienation of the estate for a period longer than the continuance of two lives in being at the creation of the estate. But as we have seen, the power of alienation was not suspended by the will at all.
At the time of the creation of the estate in question, the plaintiffs were all in being and capable of conveying.
The only contingency or uncertainty at any time was as to the duration of the precedent estate of the mother.
But that is a matter of no moment whatever now, as the devisees have all lived beyond the prescribed duration of the precedent estate in either event, and the plaintiffs have become . absolute owners in possession of the two-thirds by the provisions of the will.
This action is brought upon the theory that the will is entirely void, and that the plaintiffs upon the death of their father took by descent as his heirs-at-law the entire estate, subject only to the dower interest of their mother.
*506The complaint contains three separate counts or causes of action; two of which are for unlawfully breaking and entering the plaintiffs’ close and cutting down, and destroying and carrying away timber; "and the other for damages for unlawfully occupying, using, and enjoying the said premises by the defendants, and wrongfully withholding the same from the plaintiffs for a period of ten years.
Upon the hypothesis that the will is valid, and the plaintiffs derived all their title to the premises under it, the defendants established a complete and perfect right to enter upon, use, occupy and enjoy the premises, for the entire period covered by the complaint.
. They were not, nor were either of them, trespassers, but entered upon the premises and occupied the same by lawful right. It seems to have been agreed, in the course of the trial, by the parties, at the suggestion of the referee, that evidence should be given only touching the right of action, and that any further evidence should be suspended until after the referee had determined whether the action alleged in the complaint could be maintained against the defendants., At the close of the evidence, for this purpose, as the case shows, the defendants moved for a nonsuit, on various grounds, and the case was submitted to the referee, who held that the action could not be maintained, and dismissed the plaintiffs’ complaint. In the view I have taken of the will, and the rights of the parties under it, this decision was clearly right. It is now suggested that, even, if the will is valid, the action should have been sustained by the referee, and determined and disposed of, as an action of waste. But that was not the cause of action alleged in the complaint. The facts necessary to constitute such a cause of action were not stated therein. Ho such application was made at any time to the referee, and it is too late to make it now, after the action has been decided. Had the application been made to the referee to amend the pleadings to conform to the proofs, or fo apply the law to the undisputed facts, without reference to the particular allegations in the complaint in respect to the *507nature of the tort or wrong, he might, perhaps, have regarded it favorably. But it certainly cannot now be alleged for error that he did not do so of his own motion, but disposed of the action according to the cause of action alleged in the complaint.
The judgment is right, and must be affirmed.