(dissenting):
But two questions are presented on this appeal: First) was the plaintiff’s share properly assessed ? Second, is the deficiency of the widow’s legacy a lien on the real estate ?
*758The only objection to the manner in which the plaintiff’s share was assessed, is, that by making the assessment fro rata, the widow is compelled to contribute from the property given to her in lieu of dower, to make up that portion of the plaintiff’s share which he is entitled to recover by reason of the advancements given to the elder sons. It was decided in Mitchell v. Blain (5 Paige, 588), that a widow’s legacy in lieu of dower .must contribute ratably with the other legacies to make up the share of an after-born child, and, as an equivalent, the widow was allowed dower in the real estate received by such child, because, if the father had died intestate, such share would have been subject to dower. That rule has been followed in this case; but in Mitchell v. Blain (supra) the question in this case presented did not arise, because there were no advancements in that case.
The child is entitled to the same' share of his father’s estate as if the testator had died intestate. (2 R. S., 65 § 49.) Had he so died, the advancements would have been so reckoned in ascertaining such share. (2 R. S., 97, §76; 1 R. S., 754, § 23.) They were properly reckoned in this case, and no objection is made thereto by any party; but had the testator died intestate, then the advancements would have been deducted from the shares of the heirs and next of kin who received them, and they would only have been entitled to the difference, if any. (Id.) The appellant now claims that, inasmuch as the heirs who received the advancements, are respectively devisees under the will, of property sufficient in value, after making up their fro rata contributions to plaintiff’s share, exclusive of advancements, to wholly pay the increase of plaintiff’s share by reason of their respective advancements, such increase should be wholly assessed upon the devisees who received the advancements which create it, and not upon the appellant, who received no part of such advancements. There is a strong equity in this claim, and, unless there is some rule of law which prohibits its allowance, this equity should not be disregarded.
There are several provisions of statute in respect to the manner in which the legatees and devisees should contribute to make up plaintiff’s portion. By 2 Revised Statutes, 65, section 49, it is provided that the after-born child “ shall be entitled to recover the same portion from the devisees and legatees, in proportion to and *759out of the parts devised and bequeathed to them by such will.” By 2 Revised Statutes, 456, sections 64, 65, the Supreme Court is empowered to compel the legatees to make a “just and equal contribution,” and to make the devisees make a “just and proportionate contribution,” to make up such share. It is plain that the legislature, by tpese provisions, intended to invest the court with full power to do justice in such cases.
In most instances, a proportionate contribution would be just. But here is a case, where it seems to me to be grossly unjust. The widow, whose legacy and devise are in lieu of dower and all claims on the estate, and who received none of these advancements, is compelled to contribute equally with the devisees, who received the advancements. In other words, she is compelled to pay plaintiff about $3,000, because the testator advanced William A. $6,000 and Joseph H. $10,245, although both these sons have enough given them by the will to pay the same in addition to all their other contributions. In such a case, equity requires that the increase by reason of advancements, be first paid from th'e property devised and bequeathed to the legatee or devisee who received them, until such property is exhausted, before the other legatees and devisees are called upon to contribute on account thereof; and such is the true application of the statute to this case. Therefore, the judgment should be modified by reassessing the plaintiff’s share in accordance with the above views.
The deficiency of the legacy in lieu of dower is a lien upon the real estate passing under the will to the defendants, William A. and Joseph H. Sanford. Such a legacy is not a bonus or gratuity, but a price offered by the testator for his wife’s interest in the real estate. When accepted, it amounts to a contract of purchase. (Isenhart v. Brown, 1 Edw. Ch., 411, and cases cited.) As between the widow and legatees and devisees, she is entitled to payment in full, while there is property enough of the estate to pay it. If the personalty is insufficient, it is a lien on the realty. (Flynn v. Croniken, 9 How., 214.) The devisees cannot take advantage of the relinquishment of the dower, and repudiate the payment of the consideration therefor; "especially in a case like this, where the will requires that it shall not only be accepted, but shall also be received in order to be in lieu of dower.
*760The case of Babcock v. Stoddard (3 N. Y. S. C., 207) is of no authority on this last point. There the widow died without accepting the legacy. It was not then a contract, but an offer simply while it remained unaccepted, and hence was not a lien. The question in this case presented did not there arise.
The judgment should also be modified by adjudging the deficiency of said legacy, with the interest, to be a lien on that part of the real estate devised to William A. and Joseph H. Sanford which remains to them after contributing to plaintiff’s share, to be paid from the proceeds of the sale of said part, in preference to all other claims thereon.
Present — Learned, P. J., Boardman and James, JJ.
Judgment affirmed, with costs to the respondents J. H. and M. E. Sanford, but not to plaintiff.