Misc.] Supreme Court, June, 1921. ises in question, where he lived until his death, in 1886, whereupon his children came into possession of the premises which are the subject of this litigation, and continued therein until the premises were sold in the year 1887 in the partition suit to Katherine Schmidt referred to above. Katherine Schmidt then entered into possession and continued in possession until her death in the year 1904. In 1887 Katherine Schmidt caused the building then standing on the premises in question to be taken down, and the building which is now on said premises was erected in place thereof. The premises continued in that condition up to the present time. It was conceded on the trial that there was a continued possession and occupation of the said premises, open and notorious and undisputed, since the year 1871 to date. The defendant has a good and valid title to the premises in question by reason of adverse possession (Ruff v. Gerhardt, 73 App. Div. 245; Baker v. Oakwood, 123 N. Y. 16), and also through a valid chain of title. Peter Darcy was a naturalized citizen at the time of his death in 1871. At that time his alien non-resident brothers were incapable of inheriting the property, and the entire title to his property immediately vested in his heirs who possessed inheritable blood by virtue of citizenship. Leary v. Leary, 50 How. Pr. 122; Luhrs v. Eimer, 80 N. Y. 171; Wainwright v. Low, 132 id. 313. The law permitting a non-resident alien to inherit was not passed until 1874, therefore it could not and did not affect the vested rights of Peter Darcy's heirs who obtained title in the year 1871 by reason of his death. The defendant is, therefore, entitled to judgment dismissing the complaint. Ordered accordingly. Supreme Court, June, 1921. [Vol. 115. JOSEPH LORIA, INC., Plaintiff, v. THE STANTON COM- Defendants. and (Supreme Court, New York Special Term, June, 1921.) Specific performance if title is good at time of trial specific performance in certain cases will be decreed even if title defective at time of closing - when the giving of dower would upset the scheme of the will and the widow has received income from a trust fund in lieu of dower she is estopped from claiming dower wills. Where at the trial of an action brought by the purchaser to compel specific performance of a land contract of which time is not of the essence, the title to the property is good, the plaintiff may be required to specifically perform on his part even though the title was defective at the date of the closing of title, provided nothing has taken place in the meantime to his prejudice which would make performance on his part inequitable. A contract to convey certain real estate of a testator having been made by his executors, the intending purchaser, on the day of closing, rejected the title because of a certain judgment against the executors which had been assigned and an alleged dower right of the widow of a former owner of the premises, but the purchaser offered to execute and deliver the purchase money bond and mortgage called for by the contract and tendered a cash payment thereunder, on condition that the executors give a conveyance clear of the objections made to the title. Held, that the reception in evidence, on the trial of an action to compel specific performance brought by the purchaser, of an instrument in writing purporting to release the premises in question from the lien of said judgment, duly recorded and properly indexed, cured the objection to the judgment, and that the defendant executors, who also asked for specific performance, Misc.] Supreme Court, June, 1921. were entitled thereto, it not appearing that such course would tend to make it inequitable to the plaintiff. It appearing that to give dower to the widow of the former owner of the property would necessarily upset the scheme of his will, by which he intended she should have no dower, and would keep from the testamentary trustees, who were vested with the title to the entire estate with full power of sale, a portion thereof, and the widow, having for a number of years elected in lieu of dower to receive the income of trust funds into which the proceeds of a sale of real estate by the said trustees had passed, she would be estopped to set up a claim of dower in the premises in question. ACTION for specific performance. Nathan Burkan, for plaintiff. Griggs, Baldwin & Baldwin, for defendants. COHALAN, J. The action is one for specific performance. The plaintiff and defendants in December, 1919, entered into written contract for the purchase and sale of certain real estate located in the borough of Manhattan. The purchase price was $50,000, payable as follows: One thousand dollars on signing of the contract, $4,000 in cash on delivery of the deed, $25,000 by taking the premises subject to a first mortgage for that amount, and $20,000 by the purchaser executing and delivering to seller its bond and mortgage for that amount. The sellers were to procure for and deliver to purchaser at closing of title a three-year extension of the first mortgage at the rate of five per cent per annum. Title was to close December 23, 1919. The title company searching title for the purchaser raised two objections, which are the ones now before this court. One was a judgment against the defendant executors for $16,588.06 and held by defendant Blanche E. Frank by assignment; the other objection was an alleged dower right Supreme Court, June, 1921. [Vol. 115. in the widow of Joseph D. Carroll, a former owner of the premises. The date of closing of title was adjourned from time to time, closing to be as of December 31, 1919. On the last adjourned date, February 19, 1920, the plaintiff rejected title and brought the present action. The plaintiff paid the $1,000 on signing of contract and tendered at closing the $4,000, and offered to execute and deliver the purchase money bond and mortgage on condition that defendants give a conveyance clear of the two objections above mentioned. The defendants tendered a deed of conveyance, claiming there was no outstanding dower right, and offered to cancel the judgment. It would seem no satisfaction piece of the judgment or any instrument releasing the premises in question from the lien of the judgment was presented at closing. At the trial the defendants offered in evidence an instrument purporting to release the premises from the lien of the judgment, dated May 31, 1921, and recorded in the office of the register of the county of New York on May 31, 1921, in liber 3212, page 312, of conveyances, and indexed under block No. 880 on the land map of the city of New York. There seems to be nothing in the contract making time as of the essence, and, if no change of circumstances has occurred, this instrument would cure objection as to the judgment, and as the defendants are asking for specific performance they would be entitled to it. In an equitable action the rule seems to be well settled that a purchaser will be required to perform specifically if the title is good at the time of the trial, even though defective at the date of closing of title; that is, providing nothing has taken place in the meantime to the prejudice of the purchaser which would make performance on his part inequitable. Pakas v. Clarke, 136 App. Div. 492; Schmidt v. Reed, 132 N. Y. 108; Haffey v. Lynch, 143 Misc.] Supreme Court, June, 1921. id. 241. Nothing was shown at the trial that would tend to make it inequitable to the purchaser. It has an existing lease on the premises, and it desires to continue its business there. The plaintiff, in an adjustment of figures, would be entitled to approximately $3,900, made up of rent paid in and interest on the $5,000, and the defendants would be entitled to approximately $3,300, based on the interest paid on first mortgage and the interest they would have received from the second mortgage and cash payments, and this amount plus the interest due July first on the first mortgage, which should be paid by the defendants, would give them a credit of approximately $3,900, the same credit as that to which the plaintiff would be entitled. In view of the above, were the question as to the judgment the only one involved, the defendants would be entitled to specific performance, with the condition, however, that they pay the interest due on the first mortgage on July first. But a more serious objection is found in the question of dower. Dower is never excluded by a provision in a will for a wife except by express words or by necessary implication. In the instant case there is nothing stated in any clause of the will or codicil that the wife should take the income of the two trust funds in lieu of dower, so we must necessarily confine ourselves to whether from the will as a whole one may imply that the provision for the wife was in lieu of dower. Do the provisions of the will show a clear intention on the part of the testator to exclude the widow from a dower in his real estate so that she was put to her election as to the acceptance of the provisions for her benefit made in the will or dower in the decedent's real estate? The real estate left by the testator was of small value as compared with the rest of the estate. Approximately $500,000 was |