I think chapter 238 of .the Laws of 1853 authorizes this action of partition. The fact that the widow of the testator is in possession of the lands, claiming to own them under an apparent devise, does not deprive the court of jurisdiction. (See MS. opinion in Wager v. Wager,* decided at this term, opinion by Hardin, J.) This position is so fully considered and asserted in the authorities *433that we ought to consider it settled. (Hewlett v. Wood, 62 N. Y., 78, opinion of Miller, J.; and S. C., 1 Hun, 478, opinion of Talcott, J.; Jennings v. Conboy, 10 id., 77; Patterson v. McCunn, 46 How. Pr., 182; Hall v. Hall, 13 Hun, 306; Marvin v. Marvin, 11 Abb. [N. S.], 104, opinion of Grover, J.; Voessing v. Voessing, 12 Hun, 678.)
There is no force in the suggestion that the act of 1853 is unconstitutional, because it allows the title to be determined in such an action of partition. (Shumway v. Shumway, 1 Lans., 474; S. C., 42 N. Y., 143.) If the party desires a trial of issues arising in such an action by a jury, he is entitled thereto by making a timely demand therefor. The Special Term is required to yield to such a demand in a proper case, and send the issues to the Circuit for determination by a jury, and may require the verdict to be certified back to the Special Term, where further relief may be given as the case may require. (Cases, supra, 3 R. S. [5th ed.], 607, § 23.)
In the case here the defendant, by going to a trial in the Special Term, waived her right to demand a jury trial, and cannot now complain that the former, in which she consented to have her case tried, had no jury.
The Special Term erred in dismissing the plaintiff’s complaint for want of jurisdiction in the court to determine the questions sought to be litigated. It seems the invalidity of the will was sufficiently averred, as the defendant went down to trial without questioning the sufficiency of the allegation. (Hewlett v. Wood, 1 Hun, 479.)
This ease, when tried upon the merits, will present nice questions in regard to the construction to be given to the will. First. As to whether the defendant Caroline takes the fee to the real estate under the will, and if that be so, second, whether the money legacies are charged by the will upon the real estate. (Rafferty v. Clark, 1 Brad., 473; Shulters v. Johnson, 38 Barb., 81; Babcock v. Stoddard, 3 N. Y. Sup. Ct. [T. & C.], 207; Kinnier v. Rogers, 42 N. Y., 531; Myers v. Eddy, 47 Barb., 263 ; Archer v. Deneale, 1 Peters, 585; Taylor v. Dodd, 58 N. Y., 335; 2 R. S., 57, § 5, as to construction of wills.)
But as these questions were not discussed and passed upon at the Special Term, we express no opinion thereon.
*434They may be affected by evidence which may be given upon the trial to aid in the ascertainment of the intention of the testator.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
Talcott, P. J., concurs; Rumsey, J., not sitting.Judgment reversed and a new trial ordered, with costs to abide the event.
See post, p. 439.