This is an action to partition certain lands of which Charlotte Miller died seised in 1901. Her will was refused probate by the surrogate of New York county, and on appeal the surrogate’s decree was reversed, and a new trial before a jury was ordered. There have been two jury trials since, both resulting in a disagreement. In the meantime, Margaret L. Schultz, the sole devisee named- in the unprobated will, purchased five-sevenths of the title which, if Charlotte Miller died intestate, descended to her heirs at law. Subsequently the said Margaret L,. Schultz conveyed to one Robert Duff five equal undivided sevenths of such real property, and thereafter the said Duff conveyed the same to the' plaintiff, George C. Smith.
Section 1537 of the Cod.e permits an heir at law to maintain an action for the partition of real property, notwithstanding an apparent devise thereof to another by the decedent; but in such an action the plaintiff must allege and establish the apparent devise is void. No such allegation appears in the complaint in this action, and no attempt was made upon the trial to avoid the testamentary disposition. The plaintiff, therefore, fails to bring himself within section 1537 of the Code, and as a grantee of a devisee he cannot maintain this action, for two reasons: First, a devisee cannot maintain an action in equity to . establish a will against the heirs at law (Anderson v. Anderson, 112 *941N. Y. 106, 19 N. E. 427, 2 L. R. A. 175); and, secondly, a person not an heir at law or devisee, but who claims simply as a purchaser, cannot, under the provisions of section 1866 of the Code, maintain an action to determine the validity or effect of a testamentary disposition of real property (Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925).
As to the plaintiff’s contention that the admission of a will to probate is not essential to validate the devisee’s title to the realty, it is sufficient to say, apart from the other objections suggested, there is •no evidence of the execution of the instrument. Corley v. McElmeel, 149 N. Y. 238, 43 N. E. 628.
Complaint dismissed, with costs.