
    Anna Wilmot, Plaintiff, v. Abigail A. Robinson, John H. Wilmot and Selina Wilmot, his wife, and Hanford Robinson, as Executor of the Last Will and Testament of James H. Wilmot, Deceased, Defendants.
    (Supreme Court, Albany Special Term,
    December, 1903.)
    Partition — Provision made for a legacy, in lieu of dower, where the personalty failed.
    A legacy given with a certain share in real estate to a widow in lieu of dower becomes, when accepted by her, a debt of the estate, and where the personalty is insufficient to pay the debt provision to pay it should be made in an action brought by her to partition the testator’s real estate.
    Action for partition.
    The will, under which parties to this action claim title to the real property for partition of which this action is brought, contains the following: “ 1st. After all my law-
    ful debts are paid and discharged I give, devise and bequeath to my wife Anna, one-third of my real estate * ■ * *, also the sum of $400 in cash all of which is to be in lieu of her dower right in my estate. 2nd. I give, devise and bequeath to my brother, John H. Wilmot of Troy, E. Y., and to my sister, Abigail A. Eobinson, of Schenectady, E. Y., the remaining two-thirds of my said real estate, share and share alike, etc.”
    The plaintiff is the widow of testator, the debts of deceased, funeral expenses and expenses of administration have been paid and the balance of the personal estate is insufficient to pay the legacy of $400 in full.
    Sanford & Sanford, for plaintiff.
    Mead & Hatt, for defendants Abigail A. Eobinson and Hanford Eobinson, executor.
    John W. Eoberts, for defendants John H. Wilmot ana Selina Wilmot.
   Herkick, J.

By the legacy given to the widow in lieu of dower, and its acceptance by her, her interest in the estate became that of a creditor.

The legacy was the price tendered to her for the purchase of her interest in the realty. By accepting it she became entitled to the price. It was a debt against the estate, payable like other debts, first out of the personalty, and if that is insufficient, then out of the realty, and I see no reason why a provision should not be made for its payment in these proceedings.

Ordered accordingly.  