First. The share of the post-testamentary child was computed, on the trial, as follows: Deduct one-third of the personal estate, *755as for the widow’s share, under the statute of distributions. Take the remaining two-thirds, together with the total value of the real estate of which the testator died seized, and the total of all advancements made to children in the testator’s life. Divide the aggregate by the number of children, and the quotient will be the plaintiff’s share; but his share of the real estate is subject to her dower.
There is no appeal from this part of the judgment, and therefore we have not to pass upon its correctness.
In the present case the advancements did not, as to any child, exceed the share of the estate, including advancements, which he would have had on an equal distribution. But if it had exceeded such share, some modification of the rule would seem to have been necessary, even if the rule be correct in general. For example: If a father had advanced $6,000 to a child, A, during life, and then had died, leaving a will giving his whole property, worth $3,000, to another child, B, and leaving, also, a post-testamentary child, O, under the rule adopted, unless modified, O would have taken the whole, and B nothing. It is not necessary, then, to decide at present, whether the provisions of 1 Revised Statutes, (m. p.) 754, section 24, apply to cases under 2 Revised Statutes, (m. p.) 65, section 44. The former section is, in words, limited for the purposes of this section only.” The share of the post-testamentary child is to be recovered “ out of the parts devised and bequeathed.” This point does not seem to have been involved in Mitchell v. Blain (5 Paige, 588 ; see Thompson v. Carmichael, 3 Sandf. Ch., 120).
There may be some question, also, whether the widow, having accepted the legacy in lieu of dower, should have dower in the share of the post-testamentarv child. No appeal is taken on this point.
Second. Having ascertained the share of the post-testamentary child, by taking his equal portion of the estate, including advancements, the judgment assesses'this share as follows: Each devisee and legatee is charged with such proportion thereof, as the aggregate value of the testator’s estate, on the day of his death, after the payment of debts, bears to the share of the plaintiff, as above ascertained. It will be seen, therefore, that, as the advancements were included when the plaintiff’s share was computed, but were *756not included when it was assessed, there is a certain apparent irregularity in the assessment. The advancements were not in the same proportion as the legacies and devises. Thus the advancements had the effect to increase the assessments of the plaintiff’s share on the legatee and devisee who had received no advancement. And this occasions one of the grounds of appeal. This apparent irregularity arises from the adoption of the rule, that, in computing the share of the post-testameu tary child, advancements are to be included. And it is plain that it .is not easy to assess the share in a manner which shall be consistent with the will and the. statute, and also equitable. But assuming, as we must, that the share of the post-testamentary child is fixed, it seems to me that the statute positively determines its apportionment. (1 R. S., [m. p.] 65, § 44.) He is entitled to recover “from the devisees and legatees i/n proportion to, and out of, the parts devised and bequeathed to them by. will.” The language is plain. The recovery must be in proportion to the legacies and devises, and it is to be recovered out of these legacies and devises. The statute referred to by the appellant, relative to bringing suits by and against legatees, heirs and devisees (2 R. S., [m. p.] 456, §§ 64, 65), uses the words “just and equal contribution by the legatees,” and “just and proportionate contribution by each devisee.” This is not inconsistent with the former statute, which expressly establishes the proportion of the recovery, thus declaring what was just. And if there were any inconsistency, the former statute should govern, because the language of that statute is definite, and is intended to establish the rule. That of the latter is only intended to give power to enforce it. For these reasons, while I appreciate the apparent inequality which is so ably set .forth by the appellant, I think that the plaintiff ’.s share was- in this respect assessed in conformity with the statute.
Third. It is claimed, on behalf of the appellant, that the legacies and devises to her, being in lieu’ of dower, and having been accepted, must be paid in full, and that she has a lien for the deficiency on the real estate devised to the respondents. The ground of this claim is that a legacy or devise in lieu of dower, when accepted, becomes as it were a purchase of the dower right; that it is not a merely voluntary gift; that the widow has *757parted with value in consideration thereof, and that it should, for these reasons, be paid as a quasi debt — a price given for the relinquishment of her rights, which relinquishment has inured to the benefit of the devisees of the real estate. These views are set forth in Isenhart v. Brown (1 Edw. Ch., 411), and cases there cited ; and they establish the doctrine that a legacy in lieu of dower shall not abate like other legacies. It appears to me that the same argument is very forcible to uphold the view of the appellant, viz., that a legacy in lieu of dower must be paid, even from the real estate. The widow is obliged to elect whether she will accept or not, within one year after her husband’s death. (1 R. S., [m. p.] 742, § 14.) It is not till a year after the issue of letters, at the shortest, that the amount of the debts can be ascertained. (2 R. S., [m. p.];88, § 39.) So that she is compelled to make her election before she can positively know the amount of the debts. If she elects; therefore, to take the testamentary provision, she must do so, I think, on the assumption that it will be paid, if there be any property with which to pay it. She gives up an estate in land, and I see not why those whose land is benefited by the bargain should not pay the purchase-price. But I am bound by the decision or opinion in Babcock v. Stoddard (3 N. Y. S. C., 207). The court in that case, admitting the justice of the claim, say that they have found no authority for it, and are not prepared to assert it. It must be noticed, however, that, in that case, the legacy in lieu of dower had not been accepted." The widow died a few days after the will was proved, without making an election. Thus the important element of a quasi bargain was wanting. She had parted with nothing, and might never have accepted the legacy. Still, I think it is better that we should follow the opinion of the court in that case than to have any conflict of views.
For these reasons, I think that the judgment should be affirmed, with costs to the defendants respondent, J. H. and M. E. Sanford; but not to the plaintiff.