I think the demurrer to the complaint was properly sustained on the ground that the plaintiff is not entitled to maintain her action in its present form.
The complaint clearly states a cause of action for the recovery of chattels, and it is not claimed that it states any kind of an equitable cause of action. The demand for judgment is for the possession of the securities mentioned, or in case delivery of them cannot be had, for their value. The complaint alleges that the plaintiff is the absolute owner and entitled to the immediate possession of the securities and that she has demanded possession of them from the defendants and that they retain the same unlawfully. The facts pleaded, however, do not *286show that the plaintiff has the legal title to the securities, but on the contrary show that the legal title to them was either in the estate of Samuel D. Tuttle, deceased, or in Mary Tuttle at the time of her death, and if in her that her title passed to the defendants as administrators of her estate. If any title in the plaintiff at all is shown, it is an equitable title which under all the authorities is insufficient to enable her to maintain an action at law for the recovery of the securities.
Under the Code of Civil Procedure (§ 1690 et seq.) an action in replevin and for the recovery of a chattel are of the same nature and the same requisites are essential to both ,(Scofield v. Whitelegge, 49 N. Y. 259), one having been derived from the other. (Sinnott v. Feiock, 165 N. Y. 444.) "Replevin being primarily a possessory action, it is obvious that the action cannot he sustained for the purpose of trying the right of property. ” (34 Cyc. 1354.)
An equitable right to the possession of property will not. support an action of replevin. (National Bank of Deposit v. Rogers, 1 App. Div. 623; Haas v. Altieri, 2 Misc. Rep. 252; Dodworth v. Jones, 4 Duer, 201.)
I agree that, under the will of Samuel D. Tuttle, his wife Mary, in addition to his personal property, took a life estate in all of his real property, with the right to sell any part of it and use the proceeds for her comfortable and proper support and maintenance. Undoubtedly, the power given to her enabled her to convey any or all of his real estate and pass a good title to the purchaser, unless the sale was collusively made for the purpose of. defrauding the plaintiff. I also agree that the securities which she took for the purchase price of the real property stand in equity in place of the property itself, provided she had not used them or pledged them for her support and maintenance. This situation, however, must be established by a proper judgment in equity before such securities can belong to the plaintiff. It is an important feature of the situation that this plaintiff is not under the will a remainderman entitled to all the residue of the estate which may remain after the wife shall have used all that may have been required for her support. There is devised to her only such of the testator’s real estate as may remain undisposed of by the wife at the *287time of her decease. Granting that the words- “remain undisposed of ” are equivalent to the words “ remain unused for support ” still I think a court of equity should pass upon the situation and decree that the securities are entitled to take the place of the real property, and that the plaintiff is entitled to them before they can be said to take the place of such real property, and before it can be said that the plaintiff has legal title to them. ■
The plaintiff not now having the legal title to the securities, but only an equitable one at best she cannot maintain an action for their delivery to her.
Besides the provisions of the will are certainly broad enough to cover the expenses of the last illness of the wife and, in the absence of any separate property of the wife, to cover the expenses of her burial. The administrators of the wife were entitled to retain possession of the securities for the purpose of realizing sufficient money to pay funeral expenses and the expenses of her last sickness, and, therefore, the plaintiff is not entitled to immediate possession of them.
The situation is quite similar to that disclosed in Seaward v. Davis (198 N. Y. 415), and the plaintiff can pursue her remedy in equity according to the procedure there pointed out.
By inadvertence, undoubtedly, a judgment final in form was entered on the demurrer instead of an interlocutory one. No objection is made on this ground in the briefs, and on the argument the parties treated the judgment as interlocutory, and the majority of the court so treats it in the decision made, and I so regard it and vote for an affirmance of the judgment sustaining the demurrer, giving leave to the plaintiff to amend her complaint upon paying costs of the trial court and of this appeal.
Lyon, J., concurred.
Judgment reversed, with costs, with permission to defendants to withdraw demurrer and answer within twenty days, upon payment of costs of the demurrer and of the appeal.