
    Evelyn D. P. Tomlin, Appellant, v. Amasa P. Disher, as Executor of Alfred H. Dick, Deceased, et al., Respondents.
   Plaintiff has appealed from an order of the Albany Special Term dismissing her complaint pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice. The action is in partition. Alfred H. Dick died January 7, 1945, leaving a last will and testament. The will gave $100 to a cemetery and one fourth of the residue to plaintiff, his daughter, and the remainder to two churches. The will was offered for probate and on the return of the citation the plaintiff appeared and interposed an answer alleging that the will violated the provisions of section 17 of the Decedent Estate Law and requested construction. After trial the Surrogate made a decree modifying the will, awarding to plaintiff one half of the residuary estate and remaining one half to the churches, and the will as thus modified was admitted to probate. The executor, under the provisions of the will, sold the real property to defendant Hager and later Hager sold the property to the defendant Saulpaugh. The Special Term held that the Surrogate’s Court had jurisdiction of the parties and the subject matter and that the court' had no jurisdiction of the action. The decision of the Special Term was correct. Order appealed from affirmed, with $25 costs and disbursements. Hill, P. J., Heffernan, Foster and Lawrence, JJ., concur; Brewster, J., dissents and votes for a reversal of the order appealed from.  