(concurring.) By the marriage, in 1856, of Martha F. Fonda, widow of John W. Fonda, deceased, and mother of plaintiff, the plaintiff and her brother, Philip W. Fonda, became vested in fee, as tenants in common, share and share alike, of the premises in question, either as devisees, or as heirs of their father, John W. Fonda. The clause, “to remain under the control of my hereinafter named executor, ” created no valid trust.. It may perhaps have had the effect of making Gardner guardian of the children during minority. But it gave him no estate. On the 1st of September, 1863, Philip W. Fonda, then of age, and Martha F. Holmes, formerly the widow of John W. Fonda, the latter describing herself as trustee of the plaintiff, conveyed the whole premises to one Spath, in consideration of $900. This gave Spath the undivided half which belonged to Philip, and purported also to convey the plaintiff’s half. Under this conveyance Spath went into possession of the whole. He lived on the property, made repairs, and paid taxes till he sold it. The deed was duly recorded in October, 1863. Passing over for the present the proceedings of December, 1864, we find that, on the 20th of September, 1865, Spath and his wife conveyed the whole premises to defendant Margaretta Funk, and the deed was recorded on the 22d. The plaintiff came of age in May, 1868, and on the 5th of May, 1884, she commenced this action of ejectment to recover the undivided half of the premises against Margaretta Funk and her tenants. If the deed of 1863 to Spath conveyed plaintiff’s title, she cannot recover. If it did not, then, at least, it made Spath her co-tenant. Being such, she must show, against him or his grantees, actual ouster, (Sharp v. Ingraham, 4 Hill, 116,) and cannot recover on mere proof of title. As the position which she claims is that of co-tenant, she alleges that Margaretta entered about September 21, 1865, to the exclusion of plaintiff, and so continues. Code, § 1515. The defendant admits such possession, claiming to be the lawful owner. Now it appears, as above stated, that Margaretta took title from Spath, and that Spath had been, from September 14,1863, in possession “under claim of title, exclusive of any other right, bounding his claim upon a written instrument, as being a conveyance of the premises in question.” He did not go in simply as a co-tenant under a deed from Philip; but he went in as an absolute owner of the whole, under a deed which purported to be a conveyance of the whole, executed by one Philip, and also by one who claimed to be the plaintiff’s trustee. I do not see, therefore, why the ouster of plaintiff did not commence when Spath took possession under the deed to him. If he had acknowledged her right, he would have been (on her own theory) a co-tenant, lawfully in possession. But he denied that she had any right after he received the deed. Whatever ouster, then, was done to plaintiff by defendant Margaretta, the same had been previously done by Spath. If this be so, the plaintiff’s right of action commenced when Spath, under the deed to him, excluded her from the enjoyment of her undivided half. Code, § 369. This was in September, 1863. The action must be commenced, by the general rule, within 20 years. Id. §§ 365, 368, 369. She was within the age of 21 when her cause of action first accrued, and remained- under this disability till May, 1868. These four years and eight months, therefore, are not part of the time limited for commencing the action. But the time limited cannot be extended more than 10 years *549after the disability cease. Id. § 375. This section does not shorten the 20-years limitation. Howell v. Leavitt, 95 N. Y. 617. But in the view above expressed the 20-year limitation expired in September, 1883. To illustrate, let us suppose that when Philip and Mrs. Holmes conveyed to Spath, in September, 1863, the plaintiff had been of full age; and that Spath had gone into possession, claiming title under a deed which purported to convey her share, as well as Philip’s, and that he had continued in possession in this manner. If she had commenced an action of ejectment, could Spath, in the face of his deed and his acts, have successfully claimed that he was only co-tenant in possession, and was recognizing her right? If not, then there was ouster enough to give a right of action. The plaintiff’s infancy only extended the time for commencing' the action. It did not affect the question when the right commenced. The plaintiff insists that the statute of limitation does nob run during a life-estate. It is true that possession during the continuance of a life-estate does not begin to be adverse, as against a person entitled after the life-estate, (Fleming v. Burnham, 100 N. Y. 1, 2 N. E. Rep. 905;) for the plaintiff has then no right of action to recover the possession. But the life-estate of Martha F. Fonda ceased under the terms of the will in September, 1856, by her marriage. After that time the plaintiff and her brother were owners in fee. Even the clause about the control of the executor had become inoperative in December, 1854, when Gardner was removed from his office. Of course this is a question purely legal, yet I may say that all the equities are against the plaintiff for reasons which it is unnecessary to mention. I therefore concur in the result of the opinion of my Brother In-galls.