
    Edmund Ashton Evans and Maude D. Evans, Appellants, v. William L. Ogsbury and Others, Defendants; Susie S. Weeks [Formerly Susie S. Ogsbury], as Executrix, etc., of Alexander A. Ogsbury, Deceased, Respondent.
    
      Partition—form of demurrer to an answer by an executrix claiming dower as an individual—-a person named in the summons as executrix may appear and defend as an individual — the Statute of Limitations, that dower is lost unless the dowress enters in one year, must be pleaded.
    
    The complaint in an action, brought to procure the partition of certain real property (to which Susie S. Weeks, described as “ executrix under the last will and testament of Alexander A. Ogsbury, deceased, was made a party defendant”), alleged, among other things, that Alexander A. Ogsbury, formerly the husband of Susie S. Weeks, died seized of an estate of inheritance in a portion of the premises; that he left a will by which his interest in the premises was devised tea 1 trustee in trust to pay the net income to Susie S. Weeks, in lieu of dower, during her life, so long as she should remain his widow; that upon her death or marriage the premises were to pass to the plaintiffs and the defendant William L. Ogsbury; that the widow remarried; that her name was now Susie S. Weeks, ■ and that thereby all the right, title and interest of Alexander A. Ogsbury or his trustee in the premises became vested in the plaintiffs and the defendant William L. Ogsbury.
    The defendant Susie S. Weeks did not answer as executrix, but as an individual. She admitted the provision of her husband’s will, denied that she had ever received any income from the trust estate, denied that she ever elected to take the provision of her husband’s will in lieu of dower or that his will ever became operative to deprive her of dower; she admitted her remarriage, alleged that her former husband was seized during coverture of an estate of inheritance in the premises and claimed her dower.
    The plaintiffs demurred “to the counterclaim set forth in the amended answer * * * on the ground that it appears upon the face of said counterclaim that the same does not state facts sufficient to constitute a cause of action.” The demurrer was overruled, and the plaintiffs appealed both from the order overruling the demurrer and from the interlocutory judgment.
    
      Held, that an appeal did not lie from the order, but only from the interlocutory judgment;
    That the demurrer was bad in form;
    That the answer of Susie S. Weeks was a defense and not a counterclaim;
    That consequently the demurrer should have been put upon the ground that the answer was insufficient in law upon its face;
    That Susie S. Weeks had a right to controvert the allegations of the complaint, in effect, that because of her marriage her interest in the premises had become vested in others, as stated in the complaint;
    That Susie S. Weeks, although described as executrix, had an interest in the action as an individual, and was in. her individual capacity a necessary party thereto, and had a right to set up her individual rights in the subject of the action;
    That while, as a general rule, a person not named in the summons cannot appear- and defend, yet, if he does so, the proper remedy of the plaintiff is to move-to set aside his appearance;
    That, if the plaintiffs had a right to invoke the statutory provision, that a widow loses her right of dower when there is a testamentary provision made for her-in lieu of dower, unless she enters upon the land and commences proceedings, to recover dower within one year, it was the duty of the plaintiffs to have-pleaded the statute it being a Statute of Limitations,
    Appeal by the plaintiffs, Edmund 'Ashton Evans and another,, from an interlocutory judgment of the Supreme Court in favor of the defendant Susie S. Weeks, as executrix, etc., entered in the office of the clerk of the county of New York on the 20th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiffs’ demurrer to-the answer of the defendant Stisie S. Weeks, as -executrix, etc., and also from- an order entered in said clerk’s office on the 20th day of . February, 1896, overruling the said demurrer.
    
      George A. French; for the appellants.
    
      Andrew J. Shipman, for the i'espondent.
   O’Brien, J. :

The appeal from the order must be dismissed, as under the practice it is not appealable. The appeal can only be taken from the interlocutory judgment entered after the order. (Dick v. Livingston, 41 Hun, 455.) The questions, however, are presented upon :tlie appeal from the interlocutory judgment overruling the plaintiffs’ -demurrer to the answer.

This is a suit for partition. The defendant Susie S. Weeks is -described in the summons and complaint as “ executrix under the last will and testament of Alexander A. Ogsbury, deceased; ” but the allegations are, that the plaintiffs’ title in part was derived through the defendant .Susie S.. Weeks, and making such title •dependent upon her acts or omissions individually. Thus the com-, plaint alleged that the said defendant’s husband died seized of an -estate of inheritance of an undivided fourth part of the premises .sought to he partitioned, leaving a last will and testament which was duly admitted to probate; that by such will his interest in ■ the ..premises was devised to a trustee in trust to pay the net income thereof unto his wife, in lieu of dower, during her life, so long as •she should remain his widow, and upon her death or marriage said premises were to go to plaintiffs and their brother, William L. Ogs’.bury pthat the widow remarried and that her name is now Susie ;S. Weeks, and thereby all the right, title and interest of said Alex^ -ander A. .Ogsbury, or his trustee, in said premises, became vested in ” the parties named.

-The defendant Susie S. Weeks did not answer as executrix, but individually, and by such answer she controverts the allegations of ■fact touching the plaintiffs’ title; and though admitting the probate •of her husband’s will and its provisions as alleged in the complaint, .she denies that she ever received any of the income, or that she ever elected to take the same in lieu of her dower, or that said will ever became operative to deprive her of her lawful dower in said real property.” She, however, admits her remarriage, but repeats her denial that thereby all the rights of her former husband or his trustees became vested in the persons as alleged in the complaint. And then, at length, she sets out her marriage with Alexander A. Ogsbury, her cohabitation with him until his death, and the fact that he was seized during coverture of an estate of inheritance in an undivided fourth part of the premises; and claims that she “ now is and has been at all times since the death of said Alexander A. Ogsbury, entitled to a life estate in said undivided one-fourth part of said premises, as and for her dower therein, consisting of one undivided third thereof; that no admeasurement of her dower has ever been made, nor are there any proceedings to admeasure the same now pending.”

The demurrer is in form “ to the counterclaim set forth in the amended answer * * * on the ground that it appears upon the face of said counterclaim that the same does not state facts sufficient. to constitute a cause of action.”

The first criticism to be made is upon the form of this demurrer, which We think is bad. If, as claimed by plaintiffs, the answer contained a counterclaim, as distinguished .from a defense, then the ground of demurrer sj>ecified would ap]fiy. It will be noticed that there is no mention of a counterclaim throughout the answer, and no affirmative relief is asked, but merely that a 2>artition be made “ subject to her said right of dower; ” nor does she ask that her dower be set out and admeasured to her specifically ujion the premises to be partitioned. In the absence of such allegations, or such a 2)rayer for relief, even though there be a question as to whether the pleading was to be construed as a defense or a counterclaim, it will be regarded as a defense. (Bates v. Rosekranz, 37 N. Y. 409, 412.) As we must construe it, therefore, as a defense, the form of the 2fiaintiffs’ demurrer should have been, to the answer “on the ground that it is insufficient in law upon the face thereof.” (Code Civ. Proc. § 493.)

It will thus be seen that we agree with the learned judge at Special Term not only in his view that the facts stated are not set forth as a counterclaim, but as a defense, but also in his view as to the defendant’s right to controvert the- allegations in the complaint “ to the' effect that by reason of her marriage, all the right, title and interest of her husband or his trustee in the said premises became' vested in the plaintiff and his remaining brother and sister ; ” and for the reasons which he sets forth in his opinion.

The appellants insist, however, that the learned judge overlooked the provision of the Revised Statutes that a widow loses her right of dower when there is a testamentary provision for her in lieu of dower, unless within one year she enters upon the lands and com-' menees proceedings for the recovery of her dower. (1 R. S. 742, § 14.) As he does not discuss that question, a word may be necessary. That is a Statute of Limitations, and as such, to be available to either party, should be pleaded by the one who relies upon it. The complaint does not allege that this defendant elected to take the provision in lieu of dower, nor does it allege that she failed within one year after the death of her husband to enter on the lands or commence proceedings for the recovery of her dower. There being nothing in the complaint, therefore, to show that the statute, applies to bar her right,, it cannot be presumed to apply in the absence of'either a pleading or proof upon the subject. The difficulty with the plaintiffs’ position seems to be that they concluded that a simple way of disposing of this defendant’s rights or claims was to put her in the attitude of an executrix and to compel her to appear and answer as such. -She was not obliged, however, to occupy such a position, but had the right to set up such facts as would show that as an individual she had .some interest in the controversy, and as such it was proper to set forth her rights in the premises ; and while it is the general rule that a person not named in the summons cannot appear and defend, yet if he does so, the plaintiffs’ remedy is to set aside stich appearance. And we can find no authority for the appellants’ view, that in an equity suit where it is necessary to bring a party in for their own purposes in a representative capacity, such party cannot-set -up her individual rights in the subject of the action, particularly "where the Code says that in such action she is as an individual a necessary party. (Code Civ. Rroc. ’§ 1538.)

• We think that the disposition made of the demurrer was right, and that the judgment should be affirmed, with costs, with leave tp withdraw the demurrer upon payment of costs of this court and of the court below.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Appeal from order dismissed; judgment affirmed, with costs, with leave to withdraw demurrer upon payment of costs of this court and of the court below. 
      
       The following is the opinion of the Speóial Term:
      Lawrence,.!. :
      This action is brought for the partition of certain real estate formerly owned and possessed by one Gertrude R. Evans, who died on the 28th of March, 1878, leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Hew York. By the terms of said will the premises described in the complaint were devised to her four children, Alexander A. Ogsbury, William L. Ogsbury, Edmund Ashton Evans and Anna R. Evans, share and share alike. In the month of December, 1880, Alexander A. Ogsbury died seized of an estate of inheritance in an undivided one-fourth part of the premises, leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Hew York. In said last-mentioned will the tes» tator’s interest in the premises described in the -complaint was devised to Andrew R. Leggat, as trustee, in trust, to pay the net income thereof unto said testator’s wife, Susie S. Ogsbury, during her life, so long as she should remain his widow, in lieu of dower, and upon her death or marriagesaid premises were by said testator devised to his brothers, William L. Ogsbury, Edmund A. Evans, and his sister, Anna R. Evans, share and share alike, snbj ect to a power of sale by said trustee. It is alleged that in or about the year 1886, and prior to this action, said Susie S. Ogsbury married, and that her name is now Susie S. Weeks, and thereby all the right-, title and interest of said Alexander A. Ogsbury or his trustee in said premises became vested in the plaintiff and'William L. Ogsbury and Anna R Evans, his surviving brother and sister. The defendant Susie S. Weeks, formerly Susie S. Ogsbury, is made a defendant in this action as executrix under the last will and testament of her former husband, Alexander A. Ogsbury, deceased. Andrew R 'Leggat, the co-executor of the will of Alexander A. Ogsbury, is also made a party defendant.
      It is stated in the complaint that said Leggat, as executor and trustee, and Susie S. Weeks, as executrix as aforesaid, are made parties defendant for the reason, among other things, that the said testator should, if living be made a party to this action, and for the further reason, as to said Leggat as trustee, that by said will he was authorized and' empowered to sell "his said testator’s interest in the premises herein described, which power he has failed to exercise. The defendant Susie S. Weeks admits in her answer that the plaintiff and each of the defendants William L. Ogsbury and Anna R. Evans have an estate of inheritance of one undivided one-third share in the fee thereof, subject, however, to the defendant’s right of dower in one undivided fourth part of said premises,' and she further alleges that she was married to said Alexander A. Ogsbury, and lived with him until his death, in September, 1880; that he was entitled to an estate of inheritance in an undivided fourth part in the premises described in the complaint, and that she now is and has been at all times since the death of Alexander A. Ogsbury entitled to a life estate in said undivided fourth part of said premises, as and for her dower therein, and that no admeasurement of her dower has ever been made, nor are there any proceedings now pending for such admeasurement.'
      A demurrer has been interposed by the plaintiffs to what is described therein as t-he counterclaim set forth in the amended answer of the defendant' Susie S. Weeks, on the ground that it appears upon the face thereof that the same does not state facts sufficient to constitute a cause of action. It will be. observed, upon an examination of the answer, that the facts therein stated are not set forth as a counterclaim, but as a defense. It seems to me that the defendant Susie S. Weeks has a right to controvert the allegations in the complaint, to the effect that by reason of her marriage, all the right, title and interest of her husband or his trustee in the said premises became vested in the plaintiff and his remaining brother and sister. There is no allegation in the complaint showing her election to take the provision made in her husband’s will for her, in lieu or dower, nor is there any allegation that the trustee therein named had received ox paid over to her during her widowhood the net income of the testatrix’s interest in the property described in the complaint, and as the plaintiffs have brought her into court, she has the right to set up any facts in her answer which go to show that the plaintiff and the defendants Ogsbury and Evans have not, by reason of her remarriage, obtained the interest in the premises described in the complaint which they therein allege they possess. Under section 1538 of the Code of Civil Procedure it would appear that the defendant Susie S. Weeks was a necessary party to the action, there being no allegation in the complaint that she had elected to take the provision in her husband’s will in lieu of the dower, or that she had ever received the incbme arising from the property placed in trust for her. I am not prepared to hold that-this answer, which is demurred to, as before stated, as a counterclaim, is bad. It is not alleged as a counterclaim, but as a defense, and I think that Susie S. Weeks, having been brought in, although described as an executrix, is entitled to present all the facts to the court in order that such a judgment may be rendered as equity may require. There will, therefore, be judgment for-the defendant upon the demurrer, with leave to the plaintiff to amend upon payment of costs.
     