Laughlin, J. :
The action is brought for the partition of premises known as 267 West Twenty-second street, which, it is alleged, are owned by the plaintiff and defendant Stoops as tenants in common. The legal and record title to the premises was in ifatharina Moll, who died intestate oh the 28th day of January, 1887,' seized thereof and leaving a husband, Andrew Moll, her surviving. The plaintiff and defendant Stoops are sisters and the grandchildren and only heirs of Katharina and Andrew Moll. Andrew Moll died on the 4th day of February, 1902, seized of premises known as 177 Seventh avenue. He left a last will and testament executed on the 15th day of February, 1900. His personal property was barely sufficient to pay his debts. By the 2d clause or paragraph of the will he devised the Seventh avenue premises to the plaintiff, and by the [188]*1883d he devised the Twenty-second street premises, of which he was only tenant by the curtesy, according to the legal and record title, to the defendant Stoops. In the 4th clause of the will he expressed a wish that each grandchild should retain the premises therein devised to her until she attained the age of twenty-six years; and by the 5th clause he devised the rest, residue and remainder of his property to his two grandchildren, share and share alike, and provided in the 6th that, in the event of the death of either, the other should take her share. It appears by parol testimony, introduced on the trial of the issue of fact, that the testator knew that the Twenty-second street premises belonged to his wife in her lifetime. There is also evidence indicating that he knew that he did not have complete title thereto after her death; but, on the other hand, it appears that he paid off a $5,000 mortgage on the premises, made extensive improvements thereon, and at one time offered them for sale as his own. The legal title to the Twenty-second street premises descended to the plaintiff and defendant Stoops as heirs of their grandmother, and they became tenants in common thereof, subject to the life estate of the testator. In these circumstances it is clear that the plaintiff and the defendant Stoops are now either tenants in common of both tracts, or that the latter is the equitable owner of the Twenty-second street premises; and, therefore, in no event can this action be maintained if properly defended. Whether the parties are tenants in common of the two parcels, or whether the plaintiff owns the one and the defendant Stoops the other, depends upon the validity of the will, and, if valid, whether the plaintiff has elected to take the Seventh avenue premises thereunder. Although the testator had no title to the Twenty-second street premises, which survived his death and at the time he made his will the remainder after his life estate was vested in his grandchildren as the heirs at law of their grandmother, yet it is manifest that he intended to divide his property equally between his grandchildren; and, for the purpose of effectuating such intention, he devised the parcel which he owned to z the plaintiff and the parcel of which he was the tenant by the curtesy to the defendant Stoops. That such was his intention is manifest from the will alone, but it is further shown by evidence that the respective parcels were of equal value, and that the testator had repeatedly declared his intention to leave his property to his two [189]*189grandchildren, in equal shares. The plaintiff, of course, is not obliged to abandon her title to the Twenty-second street premises and she may refuse to take the other premises under the will, or in other words elect to take against the will; that is, to retain her interest in the Twenty-second street premises, in which event the Seventh avenue premises will descend to her and her sister, either under the rest, residue and remainder clause of the will or as intesr tate property, and they will become tenants in common thereof, unless the defendant should be permitted to have the Seventh avenue premises sequestrated to compensate her for the interest which the plaintiff refuses to relinquish in the Twenty-second street premises, which on these particular facts would seem to be unnecessary. In that event they will be tenants in common of both parcels. If, however, the plaintiff has elected or does elect to take the Seventh avenue premises under the will, by so doing she will in equity be held to have made an election by which she will be estopped from claiming any right, title or interest in the Twenty-second street premises, for that, manifestly, would be inconsistent with the intention of the testator. The doctrine is well established in our equity jurisprudence and has frequently been approved by the Court of Appeals that “ one who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it.” (Story Eq. Juris. [13th ed.] §§ 1075, 1077, 1082 ; Havens v. Sackett, 15 N. Y. 365 ; Chipman v. Montgomery, 63 id. 221 ; Haack v. Weicken, 118 id. 67 ; Shanley v. Shanley, 22 App. Div. 375 ; S. C., 34 id. 172.) The doctrine is peculiarly applicable to this case and is controlling here.
It is unnecessary to consider defendant’s counterclaim, for if the plaintiff elected to take under the will, since she has an undivided interest in the Twenty-second street premises, she must relinquish that to the defendant Stoops and it becomes unnecessary to impress a trust upon or to sequestrate the Seventh avenue premises in favor of the defendant Stoops, as might otherwise be done. (Story Eq. Juris. [13th ed.] § 1083 ; Havens v. Sackett, supra, and other cases cited.)
An action for partition will only lie where the parties are tenants in common, and it must embrace all the lands possessed by [190]*190them in common. (General Rules of Practice, rule 65 ; Matter of Moore, 108 N. Y. 280 ; Lyons v. Shannahan, 64 App. Div. 264 ; Crossman v. Wyckoff, 32 id. 32 ; Sanford v. Goodell, 82 Hun, 369.) It is' evident, therefore, that the action cannot • properly be maintained, for it relates only to the Twenty-second street premises, which belong to the defendant Stoops if the will be valid and- the plaintiff has elected or does elect to take the . Seventh avenue premises under it; and if invalid, of if she has not so elected, or does not, then the parties own other lands in common. The case, however, was tried upon ah erroneous theory. The complaint alleged the descent of the Twenty-second street premises to the plaintiff and the defendant Stoops as heirs of their grandmother ; and it also set forth the will of the grandfather and prayed that it be adjudged, in addition to the partition, that he had no title and no right to devise the same. It thus appears that the-plaintiff demanded an adjudication as to the validity of the will in so far as it relates to the Twenty-second street premises.
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Laughlin, J. :
The action is brought for the partition of premises known as 267 West Twenty-second street, which, it is alleged, are owned by the plaintiff and defendant Stoops as tenants in common. The legal and record title to the premises was in ifatharina Moll, who died intestate oh the 28th day of January, 1887,' seized thereof and leaving a husband, Andrew Moll, her surviving. The plaintiff and defendant Stoops are sisters and the grandchildren and only heirs of Katharina and Andrew Moll. Andrew Moll died on the 4th day of February, 1902, seized of premises known as 177 Seventh avenue. He left a last will and testament executed on the 15th day of February, 1900. His personal property was barely sufficient to pay his debts. By the 2d clause or paragraph of the will he devised the Seventh avenue premises to the plaintiff, and by the [188]*1883d he devised the Twenty-second street premises, of which he was only tenant by the curtesy, according to the legal and record title, to the defendant Stoops. In the 4th clause of the will he expressed a wish that each grandchild should retain the premises therein devised to her until she attained the age of twenty-six years; and by the 5th clause he devised the rest, residue and remainder of his property to his two grandchildren, share and share alike, and provided in the 6th that, in the event of the death of either, the other should take her share. It appears by parol testimony, introduced on the trial of the issue of fact, that the testator knew that the Twenty-second street premises belonged to his wife in her lifetime. There is also evidence indicating that he knew that he did not have complete title thereto after her death; but, on the other hand, it appears that he paid off a $5,000 mortgage on the premises, made extensive improvements thereon, and at one time offered them for sale as his own. The legal title to the Twenty-second street premises descended to the plaintiff and defendant Stoops as heirs of their grandmother, and they became tenants in common thereof, subject to the life estate of the testator. In these circumstances it is clear that the plaintiff and the defendant Stoops are now either tenants in common of both tracts, or that the latter is the equitable owner of the Twenty-second street premises; and, therefore, in no event can this action be maintained if properly defended. Whether the parties are tenants in common of the two parcels, or whether the plaintiff owns the one and the defendant Stoops the other, depends upon the validity of the will, and, if valid, whether the plaintiff has elected to take the Seventh avenue premises thereunder. Although the testator had no title to the Twenty-second street premises, which survived his death and at the time he made his will the remainder after his life estate was vested in his grandchildren as the heirs at law of their grandmother, yet it is manifest that he intended to divide his property equally between his grandchildren; and, for the purpose of effectuating such intention, he devised the parcel which he owned to z the plaintiff and the parcel of which he was the tenant by the curtesy to the defendant Stoops. That such was his intention is manifest from the will alone, but it is further shown by evidence that the respective parcels were of equal value, and that the testator had repeatedly declared his intention to leave his property to his two [189]*189grandchildren, in equal shares. The plaintiff, of course, is not obliged to abandon her title to the Twenty-second street premises and she may refuse to take the other premises under the will, or in other words elect to take against the will; that is, to retain her interest in the Twenty-second street premises, in which event the Seventh avenue premises will descend to her and her sister, either under the rest, residue and remainder clause of the will or as intesr tate property, and they will become tenants in common thereof, unless the defendant should be permitted to have the Seventh avenue premises sequestrated to compensate her for the interest which the plaintiff refuses to relinquish in the Twenty-second street premises, which on these particular facts would seem to be unnecessary. In that event they will be tenants in common of both parcels. If, however, the plaintiff has elected or does elect to take the Seventh avenue premises under the will, by so doing she will in equity be held to have made an election by which she will be estopped from claiming any right, title or interest in the Twenty-second street premises, for that, manifestly, would be inconsistent with the intention of the testator. The doctrine is well established in our equity jurisprudence and has frequently been approved by the Court of Appeals that “ one who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it.” (Story Eq. Juris. [13th ed.] §§ 1075, 1077, 1082 ; Havens v. Sackett, 15 N. Y. 365 ; Chipman v. Montgomery, 63 id. 221 ; Haack v. Weicken, 118 id. 67 ; Shanley v. Shanley, 22 App. Div. 375 ; S. C., 34 id. 172.) The doctrine is peculiarly applicable to this case and is controlling here.
It is unnecessary to consider defendant’s counterclaim, for if the plaintiff elected to take under the will, since she has an undivided interest in the Twenty-second street premises, she must relinquish that to the defendant Stoops and it becomes unnecessary to impress a trust upon or to sequestrate the Seventh avenue premises in favor of the defendant Stoops, as might otherwise be done. (Story Eq. Juris. [13th ed.] § 1083 ; Havens v. Sackett, supra, and other cases cited.)
An action for partition will only lie where the parties are tenants in common, and it must embrace all the lands possessed by [190]*190them in common. (General Rules of Practice, rule 65 ; Matter of Moore, 108 N. Y. 280 ; Lyons v. Shannahan, 64 App. Div. 264 ; Crossman v. Wyckoff, 32 id. 32 ; Sanford v. Goodell, 82 Hun, 369.) It is' evident, therefore, that the action cannot • properly be maintained, for it relates only to the Twenty-second street premises, which belong to the defendant Stoops if the will be valid and- the plaintiff has elected or does elect to take the . Seventh avenue premises under it; and if invalid, of if she has not so elected, or does not, then the parties own other lands in common. The case, however, was tried upon ah erroneous theory. The complaint alleged the descent of the Twenty-second street premises to the plaintiff and the defendant Stoops as heirs of their grandmother ; and it also set forth the will of the grandfather and prayed that it be adjudged, in addition to the partition, that he had no title and no right to devise the same. It thus appears that the-plaintiff demanded an adjudication as to the validity of the will in so far as it relates to the Twenty-second street premises. .The defendant-Stoops in her answer denied tenancy in- common of the Twenty-second street premises and denied that the parties own no other lands in common and pleaded by way of a separate defense that the provisions of the will devising these parcels of land and the remainder were invalid for indefiniteness and uncertainty in that the testator devised the Seventh avenue premises to the plaintiff and the Twenty-second street premises to her in the belief that he had title to the latter, and that he intended to devisé his property to his two grandchildren in equal shares; and she counterclaimed her undivided interest in the Seventh avenue premises against the plaintiff’s undivided interest in the Twenty-second street premises and averred that the action does not embrace all the lands of which the parties are tenants in common. Her' demand for judgment is that the complaint be dismissed, that the will be adjudged void, and that she be adjudged the owner of an undivided half of the Seventh avenue premises as the heir of her grandfather, and' that a receiver of said premises be appointed and the plaintiff be restrained from selling or conveying the same. The plaintiff replied, putting in issue the allegations of the alleged separate defense and counterclaim with reference' to the invalidity of the will as to the Seventh" avenue premises.
[191]*191Upon the trial evidence was given in behalf of the defendant Stoops which she claimed tended to show that the testator in making the will labored under a 'mistake of fact in that he supposed that he owned the Twenty-second street premises. This was the only question that was submitted to the jury; and they found in the affirmative. Her counsel also, in moving to dismiss the complaint at the close of the plaintiff’s case and of the evidence, contended that the plaintiff had elected to take under the will or should be required to so elect and that, therefore, she had no interest in the premises described in the complaint and could not maintain this action. Her exception to the denial of this motion appears in the record notwithstanding the fact that she does not appeal. Upon the finding of the jury the court at Special Term directed judgment, among other things, adjudging that the 2d clause or paragraph of the will devising the Seventh avenue premises to the plaintiff was invalid; that the testator had no power to devise the Twenty-second street premises ; that the plaintiff and the defendant Stoops are tenants in common of both tracts, and that the premises described in the complaint not being the only premises of which the parties are tenants in common the complaint should be dismissed. The facts pleaded by the defendant did not constitute a counterclaim but they constitute a defense to the action, the point being that -the action could not be maintained if the parties were tenants in common of other premises. The validity of the will could be litigated in this action as could also the question whether the plaintiff had elected to take under the will if valid, inasmuch as if the will were invalid or the plaintiff had elected to take thereunder the action could not be maintained for reasons already stated. It is doubtful, however, whether the defendant Stoops could take advantage of the facts indicating an election on the part of the plaintiff to take under the will, for that defense is not set up in her answer. The answer was not amended in that regard. ¡Nor can it be said that the case was tried upon that theory; so that it may be deemed amended by consent. The defendant did not ask for any affirmative relief, as that it he adjudged that the plaintiff be compelled to execute a conveyance of her right, title and interest in the Twenty-second street premises to the defendant, or adjudged to have no such right, title or interest on account of an election to take the Seventh avenue premises under the will, and, [192]*192therefore, the question as to whether such relief, if demanded, might have been awarded in this action is not presented for decision. The most favorable view of the answer to the defendant is that it set up a defense to the action, but in no view did it set up matters which .would entitle the defendant to affirmative relief.
The judgment cannot be sustained on the theory on which the action was tried. There is no authority for adjudging the will invalid merely because the testator attempted to devise premises to which he had no title or upon the theory that he intended to make an equal distribution of his property between his grandchildren, and that the will on account of his not owning the Twenty-second street premises cannot render such intention effectual. (Matter of Forbes, 60 Hun, 171 ; Van Beuren v. Dash, 30 N. Y. 393 ; Clapp v. Fullerton, 34 id. 190 ; Matter of Bedlow, 67 Hun, 408 ; Buchanan v. Belsey, 65 App. Div. 58.) If the provisions of. the judgment from which the appeal is taken be stricken out and the dismissal of the complaint be sustained a gross injustice will result, for the other provisions of the judgment not appealed from adjudge the invalidity of the devise of the Twenty-second street premises to the defendant Stoops. The plaintiff, although also appealing from that part of the judgment which directs a dismissal of the complaint, does not here ask for a new trial, but merely that judgment be directed in her favor for a partition of the premises. If that relief were awarded she could still claim the Seventh avenue premises únder the will. Justice, therefore, requires that the judgment should be reversed and a new trial granted, with costs to appellants to abide the event to the end that the case may be properly tried and the rights of both parties finally determined.
Van Brunt, P. J., Patterson and Hatch, JJ., concurred in result.