Burkhart agt. Babcock.

taxation of costs the per cent provided by section 3252 was allowed to the plaintiff.

I regard the case of Randolph agt. Stedman (4 Abb., 262; 3 E. D. Smith, 648), as an authority against the allowance of this item. That was an action to foreclose a mechanics' lien and arose under section 308, Code of Procedure, the provisions of which are embodied in section 3252 of the Code of Civil Procedure. In it the court say: "It is suggested that the course of procedure is analogous to the foreclosure of a mortgage in which case an extra allowance may be granted. It is very true that this proceeding is analogous to the foreclosure of a mortgage, for which alone provision has been made in the section referred to. It is also suggested that it is in the nature of a claim upon real property; but it is not in the language of the statute a proceeding for the determination of claims to real property. As it falls, therefore, within none of the cases provided for by section 308, there is no authority for granting an extra allowance." DALY, J., at the conclusion of his opinion, says: "As the point is suggested for the first time, I have conferred with my brethern and they agree with me that we have no power to grant an extra allowance in such a case." When the above decision was made, section 308, Code Procedure, gave the court power to make allowance, instead of declaring, as section 3252, Code Civil Procedure does, that the plaintiff was entitled to the allowance in certain cases; but that can make no difference in the question of construction here involved.

In M'Mulkin agt. Hovey (46 How., 405), in an action on the part of a vendor to compel the vendee to complete a land contract the special term said, obiter, that it was not one of the actions named in section 308, Code Procedure. The item complained of must be stricken out.

The clerk was perhaps misled by note C, Bliss' Code (vol. 2, p. 990, to sec. 3252), that "allowances may be granted in proceedings to foreclose a mechanic's lien," citing Randolph agt. Foster (supra), but as we have seen the case does not so VOL. II 65

Mason agt. Mason et al.

hold. The same note "C" also says, the allowance may be granted in an action to compel specific performance of a contract for the sale of real estate, citing Weeks agt. Southwick, (12 How., 170); but as I read that case the court said (p. 171) "nor is this a case for an extra allowance. The action is not brought to recover money or property, but merely for equit able relief. Such a case is not within the provisions of three hundred and eighth section of the Code."

The motion is granted, without costs.

SUPREME COURT.

ADELAIDE E. MASON agt. CLARISSA MASON et al.

Dower-When provision for wife should be held to be in lieu of dower — Partition.

Where a testator devised one-third of his real property to his widow for life with remainder to his sons, also devising the other two-thirds to

the sons:

Held, that there was thus a total disposition of his realty, and any allowance of dower to the widow in addition to the devise would overturn the plain scheme of the will, and is inconsistent with the disposition made of the rest of the estate. In such case the court infers an intention of the testator that the provision for the wife should be in lieu of dower.

That the testator has left his widow a life estate in one-third of the premises does not prevent the owners in fee of the two-thirds from partitioning the property and realizing their shares. The rights of the tenant for life may be protected by provision in the decree.

Special Term, November, 1885.

Isidor Grayhead, for plaintiff.

Jacob L. Hanes, for defendant Clarissa Mason.

Horace Secor, Jr., for defendant Sarah A. Mason.

John T. Cornell, for guardian ad litem.

Mason agt. Mason et al.

BEACH, J.-The plaintiff is possessed of an estate of inheritance in an undivided portion of the premises described in the complaint. This fact makes inapplicable section 1533, Code of Civil Procedure, which relates wholly to an action for partition between joint tenants or tenants in common of an estate in reversion or remainder. The case of Sullivan agt. Sullivan (66 N. Y., 37) was met by the above Code provision, and only held that a reversioner could not maintain partition, because of not having either an actual or constructive possession. I do not think it possible that because the defendant Clarissa Mason has a life estate in one-third of the premises, the owners in fee of the two-thirds are prevented from partitioning the property and realizing their shares. The rights of the tenant for life may easily be protected by provision in the decree.

The testator devised the third of his real property to his widow, the defendant Clarissa Mason, for life, with remainder to his sons. The other two-thirds he devised to them. There was thus a total disposition of his realty, and any allowance of dower to the widow in addition to the devise would overturn the plain scheme of the will, and is inconsistent with the disposition made of the rest of the estate. In such case the court infers an intention of the testator that the provision for the wife should be in lieu of dower (Vernon agt. Vernon, 53 N. Ž., 351; Dodge agt. Dodge, 31 Barb., 413; Bull agt. Church, 5 Hill, 206).

Judgment for plaintiff, with costs.

Cole agt. Cole et al.

SUPREME COURT.

ALIDA J. COLE agt. GEORGE W. COLE et al.

Will-Construction of — Dower - When provisions of will must be regarded as intended in lieu of dower.

Where there is no direct expression of intention that the provision contained in the will shall be in lieu of dower, the question always is whether the will contains any provision inconsistent with the assertion of a right to command a third of the land to be set out by metes and bounds for dower. The intention of the testator need not be declared in express words, it may be implied if the claim of dower would be plainly inconsistent with the will.

Where the will gave all the testator's real and personal estate to plaintiff (widow) as executrix and John M. Corliss and William Carley as executors in trust for uses and purposes therein stated, among which are the following: "First. To receive and collect the income thereof, and to pay the same for my debts, and the incumbrances upon my estate, after the payment of such sums as may be necessary for the support and education of my family and children, in which matters I desire my executrix and executors to be liberal. Second. To purchase in their own names as such executrix and executors a homestead for my wife and family if I shall not do so in my lifetime, and in such homestead all my children shall be entitled to a home while they remain unmarried." The testator in his lifetime purchased the homestead and owned it at the time of his death:

Held, that the intention of the testator is reasonably clear that the widow should take all of her interest in that homestead under the will. She is given an interest equal to that of each child. The devise must contemplate a homestead discharged of dower, otherwise the object of the testator as expressed might be defeated by assumption of dower right, and possible sale of the homestead under such claim. The testator directed that in case of the remarriage of his wife all of his estate shall be divided equally among his four children, and be paid to them respectively as they arrive at full age:

Held, that if one-third of the real estate were to be set apart to the widow as dower, a division of all of the estate among such children could not take place until the widow's death notwithstanding a remarriage by her. Thus a provision of the will would be defeated.

Special Term, November, 1885.

Cole agt. Cole et al.

Robert S. Hudspeth, for plaintiff.

Robert H. McClellan, for defendants.

OSBORN, J.-This is an action for admeasurement of dower, &c. In November, 1883, upon notice of plaintiff's attorneys, and without opposition on the part of the defendants' attorney, the action was sent to a referee to take proof of the material facts stated in the complaint and report thereon to the court. And such report was subsequently made, and in April last interlocutory judgment was granted by me without opposition by defendants' attorney. The case is now before me on application for final judgment in favor of the plaintiff, which is resisted by defendants' counsel, who now maintains that plaintiff is not entitled to dower as claimed; that such claim is repugnant to the will referred to in the complaint, and that the provisions of such will in favor of the plaintiff having been accepted by her constitute a bar to the demand she makes in this action.

The position now taken by defendants' counsel should it, seems to me, have been assumed at an earlier stage in the case, but as counsel for plaintiff has raised no objection to its being now considered, I shall assume that none is claimed.

The question presented is certainly difficult of a clear and satisfactory solution. The authorities to which my attention has been directed by plaintiff's counsel, and which I have been able to obtain for examination, argue with much force the general propositions advanced by him, and particularly Sanford agt. Jackson and others (10 Paige, 266); Lewis agt. Smith (9 N. Y., 502). But upon a careful analysis of the will in this case, compared with the provisions of the wills referred to in the reported cases above mentioned, and in the light of the more recent decisions of Savage agt. Burnham (17 N. Y., 561); Tobias agt. Ketcham (32 N. Y., 319); and Matter of Surplus Moneys, &c., in Estate of John C. Zahrt (94 N. Y., 605), I am of opinion that in this case the pro