
    ABRAHAM HEWLETT, Appellant, v. SAMUEL WOOD and others, Respondents.
    
      Partition—Chop. 238, 1853—Issues in the action—when to be tried by a jury.
    
    The plaintiff brought this action, as heir-at-law of Abraham Wood, deceased, to obtain the partition of certain lands in the possession of the defendants, who claimed them as devisees of said Wood. The plaintiff alleged that the devise was void, and brought this action in pursuance of chapter 238, Laws 1853. A motion was made by the plaintiff, for an order directing the settlement of the issues in the action, and that the same be tried by á jury. Held, that it was error for the Special Term to deny the motion.
    Appeal from an order made by the Special Term of Kings county, denying a motion made by the plaintiff for the settlement of the issues in the action, and for their trial by a jury.
    
      E. T. Sohenck, for the appellant.
    
      A. Wakem-an, for the respondent.
   Talcott, J.:

This was an action in form for a partition, but it appears that the real question in controversy is as to the validity of a devise made by Abraham Wood, who died seized of the property in question. The defendants are in possession of the property, claiming under the will sought to be impeached, and denying the title of the plaintiff as heir-at-law. In such a case, no decree for the partition could have been made before the act of 1853. The act of 1853 provides that heirs, claiming by descent from an ancestor who died in possession, whether they be in possession or not, notwithstanding any apparent devise, may prosecute an action for partition, notwithstanding any possession under the devise, provided they shall allege and establish in such action, that the apparent devise is void. Under this statute, the action is maintainable, notwithstanding the adverse possession of those claiming to be devisees. The case has been once before tried; a new trial has been ordered by the Court of Appeals; and it appears that the questions to be litigated, are as to the mental capacity of the testator, and whether or not the will in question was procured through undue influence, imposition and fraud, involving the examination of a large number of witnesses and conflicting testimony. Such questions, when they arose in a court of equity, were referred to a jury for trial. In an action in equity, before the Revised Statutes, when the legal title was in controversy, the practice of the court was to retain the suit, until the title could be established at law. After the Revised Statutes, the practice was to dismiss the complaint without prejudice to a new suit, after the title had been established ,at law.

The provisions of the Revised Statutes on the subject of partition, clearly contemplate, if they do not require, a trial by jury, where the legal title is in dispute; and section 448 of the Code applies the provisions of the Revised Statutes, relating to partition, to actions brought under the Code for the same purpose, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form.

It is assumed that the action for partition under the Code, is an action in equity. Assuming this to be correct, and assuming that a court of equity had jurisdiction in such a case to decide upon and dispose of the legal title where that is in dispute, still, as we have seen, that court did not attempt to do so in such a case, without the intervention of a jury. There is nothing in the act of 1853, before referred'to, which undertakes to change the mode of trial in such cases. In fact, the action for a partition, under the act of 1853, is in the nature of an action of ejectment; the partition can only be granted as incidental relief, depending on the prior establishment of the legal title, which is the main point in controversy. The refusal to grant an issue in such a case, is good ground for an appeal. The counsel for the respondent claims that no issue of fact is made by the pleadings. The plaintiff, following the language of the act of 1853, before referred to, alleges that the will, under which the defendants claim, is void. It is quite probable that this allegation, as a matter of pleading,.is too general, and that the defendants might have compelled the plaintiff to make his complaint more specific in this respect. But if they saw fit to go to trial on this general allegation, they subjected themselves to the consequence, that any evidence, showing the will to be void, is admissible, and any embarrassment, arising from the generality of the allegation, can be remedied on the settlement of the issues.

On the whole, we think the Special Term erred, in refusing to settle issues, in the action, to be tried by a jury.

The order appealed from is reversed, and the issues of fact, touching the validity of the will of Abraham Wood, must be settled in the usual manner, and tried by a jury; ten dollars costs of the appeal to abide the event of the action.

Present — Barnard, P. J., Talcott and Tappen, JJ.

Ordered accordingly. 
      
       Burhans v. Burhans, 2 Barb. Ch., 398; Florence v. Hopkins, 46 N. Y., 182.
     
      
       Sess. Laws of 1853, p. 526.
     
      
      
         Story’s Eq. Jur., § 72.
     
      
       Wilkin v. Wilkin, 1 Johns. Ch. R., 111; Coxe v. Smith, 4 J. C. R., 271.
     
      
       2 R. S., 319-20; §§ 16, 17, 18, 19 and 23.
     
      
       Willard’s Eq. Jur., 704.
     
      
       Townsand v. Graves, 3 Paige, 457.
     