CARR, J.:

This is an appeal from an interlocutory judgment in an action for the partition of real property.

Mary L. McCrum died in 1878, seized of an undivided one-half interest in the real property described in the complaint. This interest she acquired in 1878. She left a last will and testament, which had been made in 1869, in which she appointed her husband, John J. McCrum, as executor, and which directed the payment of her debts and funeral expenses by the executor, and contained a disposing clause as follows: "I give, devise and bequeath to my husband, John J. McCrum, all the real estate which I now have or which I may have at the time of my decease forever." If she had any personal property she left it undisposed of by her last will. At the time she made this will she had one child of the age of three years, and was pregnant with another, who was born a few days after the will was executed. Subsequently she gave birth to another child, and all these children survived her. The real property in question was subject to a mortgage for $10,000 when she acquired it, and in 1881 this mortgage was foreclosed and the land was sold to the mortgagee. In this foreclosure action the children of Mary McCrum who were born after the making of the will were not made parties. One of these children has brought this action against the heir of one of the afterborn children and the other defendants, who hold title to the land by mesne conveyances from the purchaser at the foreclosure sale, for a partition of the land. The plaintiff claims an undivided interest in the land under the authority of what was section 49 of article 3 of title 1 of chapter 6 of part 2 of the Revised Statutes, as amended by chapter 22 of the Laws of 1869, and what is now, in the same words, section 26 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18). This statute provided as follows: "Whenever a testator shall have a child born after the making of a last will, either in the life-time or after the death of such testator, and shall die leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent's real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will."

On the trial of this action the plaintiff proved that the testatrix had made no settlement for the children born after the making of the will and a case was made out within the literal expression of the statute, for the will in no way mentioned nor in terms provided for these children. It was held, accordingly, by the trial court that the plaintiff and the defendant McCrum, the heir of one of the children born after the making of the will but who died after the death of the testatrix, were seized each of an undivided one-sixth part of the real property, subject to the lien of the mortgage before mentioned.

It is argued by the defendant appellants that the statute above quoted does not apply to the facts of this case, and several reasons are advanced in support of the argument. The first contention is that the purpose of the statute was to remedy a situation where the will disinherited an afterborn child through a "probable oversight" on the part of a testator, and that as the testatrix here was pregnant, and within a few days of the time of delivery, when she made her will, it must be deemed that she intended to cut off the child she was then carrying. The trial court expressly found that there was such an intention upon the part of the testatrix. The statute, however, declares its purpose in plain and unambiguous language. The right to dispose of property by will is held, generally, to arise only from positive law, and a statute may regulate, enlarge or shorten its exercise. A similar question was before this court in Udell v. Stearns ( 125 App. Div. 196), and it was held, in accordance with many authorities, that such a presumption of intent to disinherit an afterborn child could not be entertained, if the effect was to nullify the plain provisions of the statute.

It is contended further, however, that, assuming that the statute is applicable, it applies only where the will in question attempts to dispose of the whole estate of a testator. In the case before us the will disposes only of real estate, leaving the personal property, if any, to be administered and the surplus to be distributed according to the then Statute of Distribution, which would include the afterborn children. In this way, it is contended, the testatrix, by failing to bequeath her personal property, did, in effect, make some provision for the afterborn children. It must be noted that the statute requires the provision for the children in question to be made either by a "settlement" or "in such will." The effect of the statute is not to revoke the will, but to create a partial intestate. Another section of the same Revised Statutes did provide for cases where the entire will should be deemed revoked by a subsequent marriage and birth of issue under defined circumstances, and, in making such provision, it confined its scope to "any will disposing of the whole estate of the testator." (R.S. pt. 2, chap. 6, tit. 1, art. 3, § 43, now Decedent Estate Law, § 35.) It is an argument of great weight that, while such condition was specified in a provision relating to a revocation, it was omitted in a later clause of the same statute relating to a partial intestate. It is not plain that the Legislature must be deemed to have meant the same thing in its use of very different language. The only time this question has appeared heretofore in the reports of this State was in Bloomer v. Bloomer (2 Bradf. 339). There a testator had made a will disposing of both real and personal property. After the will was made a child was born, who survived the testator, and no provision was made for it either by a settlement or in the will. The will was held void as to the personal property, but valid as to the real property. The afterborn child, therefore, took a portion of the personal property under the statutes distributing personal property. It was held, however, that he likewise took an interest in the real estate which had been devised, because, as to such real estate, there was a partial intestacy as to him under the statute cited. This decision was made in 1853, and there seems to be no later reported consideration of this point in this State. The appellants, however, cite Gay v. Gay ( 84 Ala. 38) in support of their contention, but this case is not an authority on the section of the statute involved in this appeal, nor does it in any way relate to it. There the question was as to a claimed revocation of a will by a subsequent marriage and birth of issue in the marriage. The statute there under consideration was practically a copy of our statute as to revocation (§ 43, supra), and did not relate to partial intestacy (§ 49, supra).

In any event, however, the proofs in this case do not show that the testatrix did, as a matter of fact, leave any appreciable personal estate. The trial court found that, at the time of her death, she owned "clothing, a diamond ring and a gold watch and chain," and that she "died possessed of personal property at least equal in value to the value of her real estate, and neither was very considerable." This last finding is a conclusion of fact, rather than a finding of fact, and its only apparent basis is the found ownership of "clothing, a diamond ring and a gold watch and chain." It is, however, of no great matter, in our opinion, whether the testatrix did in fact leave some personal property, for the statute in question applies whether she did or not. The plaintiff and the defendant McCrum are, therefore, seized each of an undivided one-sixth interest in the premises in question, and are entitled to an interlocutory judgment of partition. The appellants have a dual relation to the McCrum parties. They are tenants in common to the extent of the interests acquired under the foreclosure sale, namely, an undivided two-thirds, and they are likewise in equity assignees of the mortgage against the McCrum parties to the extent of the amount unpaid on the mortgage, less such proper charges as may be proved as the result of an accounting in which the rents and profits may be ascertained and proper carrying charges allowed and a balance struck. The amount so ascertained as the net sum due on the mortgage indebtedness would be a first lien on the proceeds of sale under the interlocutory judgment and would have to be paid before there could be any distribution between the tenants in common. However, it is provided in the interlocutory judgment that the appellants shall not be charged with rents and profits, nor allowed taxes, repairs and other carrying charges, and that the McCrum parties may be allowed to redeem their undivided shares from the lien of the mortgage indebtedness by paying two-sixths of the amount due on the mortgage at the time of the foreclosure sale "without interest." These provisions of the judgment are also attacked on this appeal. The trial court seems to have taken a short cut to adjust the mutual equities of the parties, and perhaps this method might work out an unobjectionable result. Yet it is not certain that it will. The appellants contend that the McCrum parties must first pay the whole net amount of the mortgage indebtedness to redeem their undivided shares from the lien of the mortgage. This would be so, were this action one to redeem from a mortgage instead of one for the partition of real property. It seems to be the settled rule that the party seeking to redeem in equity by an action for that purpose must pay the whole mortgage indebtedness instead of any proportionate share thereof. ( Coffin v. Parker, 127 N.Y. 117; Merritt v. Hosmer, 11 Gray, 276.) The present action, however, is one for a partition of real property. The fact that the interests of the cotenants are subject to a lien of a mortgage which is held by some of the cotenants does not make the case any different than if such mortgage was held by a person having no interest in the land, save as mortgagee. Out of the proceeds of sale must first be paid the net amount of the mortgage lien. This payment may exhaust the proceeds of the sale, or there may be a surplus. If there is a surplus, then the amount thereof will be distributable among the tenants in common in proportion to their respective interests. The use of the word "redemption," under these circumstances, simply tends to confusion. Again the provision of the interlocutory judgment as to the method of ascertaining the net amount of the mortgage indebtedness is erroneous, in that it denies to the appellants interest on the amount due on the mortgage since the time of the foreclosure sale. The equitable assignees are clearly entitled to interest. (11 Am. Eng. Ency. of Law [2d ed.], 229.) The whole question as to the mutual charges and credits should be left to be ascertained by the referee, whose appointment is provided for by the interlocutory judgment, and the interlocutory judgment should be modified by striking therefrom the provisions above mentioned as to the method of ascertaining the net amount of the mortgage lien and by directing a reference to ascertain the amount so due, after making proper mutual charges and allowances, subject to the confirmation of the court. I recommend that the interlocutory judgment be modified accordingly, and as modified affirmed, without costs.

WOODWARD, JENKS, THOMAS and RICH, JJ., concurred.

Interlocutory judgment modified in accordance with opinion, and as so modified affirmed, without costs. Settle order before Mr. Justice CARR.