
    Emil Opitz, as Executor, etc., of Frederick Hammen, Deceased, Respondent, v. Emma Hammen, Appellant, Impleaded with Others.
    
      Demurrer to a complaint asking that a will be construed—an adjudication sustaining it affords no basis for an extra allowance of costs.
    
    Where in an action brought by an exfeeutor to obtain a construction of the will of ins testator, the widow of the testator interposes y demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action (the question which the court is called upon to decide being whether the provisions of the will in favor of the widow are in lieu of, or in addition to, dower), the sustaining of the demurrer does not entitle the widow to an extra allowance of costs, as the effect thereof is simply an adjudication that the plaintiff has no right to ask the court to construe the will, and not an adjudication that the widow’s construction is correct.
    
      Semble, that had the court given to the will the construction claimed by the widow it would have had power to grant- her an extra allowance.
    
      Appeal by the defendant, Emma Hammen, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of January, 1899, denying, on the ground of want of power, said defendant’s motion for an extra allowance of costs.
    
      James P. Judge, for the appellant.
    
      Charles W. Laskey, for the respondent.
   Per Curiam :

This action is brought for the construction of the will of Frederick Hammen. His widow, Emma, demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. This demurrer has been sustained at the Special Term, which refused to make an extra allowance to the defendant, on the ground that there was no interest at issue on which an extra allowance could be computed. We think this decision correct. The question which the court was asked to decide was whether the provisions of the will in favor of the widow were in lieu of dower, or in addition thereto. By the dismissal of the complaint on the demurrer that question still remains open, though the defendant’s counsel insists that the demurrer was sustained by the Special Term on the ground that the widow took both dower and the provisions of the will. Ho such decision could have been made on the demurrer. The effect of the decision for the defendant on the demurrer is only that the plaintiff had not a right to ask the court’s construction of the will, not that the defendant’s construction is correct, and there can be no money value to such a right. If the defendant had answered and claimed the construction of the will which her counsel contends the Special Term adopted, then there would have been judgment in her favor, construing the will in accordance with her demand. In snch case, undoubtedly, the court would have been empowered to grant her an allowance. The defendant has mistaken her practice.

The order appealed from must be affirmed, without costs.

All concurred.

Order affirmed, without costs.  