It is true that the devise of a life estate in the entire real property to the widow (the plaintiff here) did not put her to her election between it and her dower right. It was consistent with her dower right, and if there had been debts and encumbrances to come out of the land prior to such life estate, so that her dower right would have been more valuable than such life estate, she was free to fall back upon such dower right (Lewis v. Smith, 9 N. Y. 502).
But while this is true it is also true that the plaintiff’s life estate by the will in the entire property necessarily included the dower life estate in one-third of it. In such a case if the life estate in the entire property be worth less than the dower estate for the reasons already mentioned, the widow in the distribution of the proceeds of a sale of the property is entitled to receive anyhow a sum equal to her dower interest. But this by no means argues that if she should give a conveyance of her life estate in the entire property, or if the entire property including her life estate therein should be sold under a judgment in partition binding on her, her dower estate in the land would survive. As the greater includes the less it would be gone.
The plaintiff could, it is true, state her technical legal position to be that she had a life estate by dower in an undivided one-*691third of the land, and a life estate by the will in the other undivided two-thirds. But the equivalent of this is that she had a life estate in the entire property; and this was substantially and sufficiently alleged in the complaint as an allegation of her interest in the property, and the prayer was that the property be sold and the proceeds divided according to the several interests of the parties. This alone, and all the more so coupled with her written consent to the sale, and to accept a gross sum out of the proceeds in satisfaction of her “ estate or interest ” in the land, which is also alleged in the complaint, tendered to her the issue that the land with all her interest in it, i. e., the life estate which she was in actual possession and enjoyment of in all of it, was to be sold, and that she was to be paid the equivalent of the said estate of which she was in possession out of the proceeds of the sale. And in addition to this she executed in the action, acknowledged and filed another consent before the interlocutory judgment was obtained, and for the purpose of having such judgment based thereon, that the property be sold, and that she would accept in full satisfaction and discharge of her “ estate or interest ” in the land a gross sum out of the proceeds of the sale, to be ascertained according to law. This “ estate or interest ” could only have referred to the one she was in possession of, i. e., a life estate in the entire property.
It follows that the judgment that the plaintiff was “ entitled to a life estate in the entire premises ”, and to receive a gross sum therefor out of the proceeds of the sale, and for a sale of the property on that basis, was properly taken against her on her default. It did not go further and was not broader than was authorized by the issues tendered, and was .in addition authorized by the plaintiff’s consent, and it binds her, and is a bar to this action.
Judgment for the defendant with costs.