Tuthill v. Debovoise

the same order, or whether the demurrer was sustained on both grounds, does not appear, and counsel do not agree with respect to whether or not both grounds of the demurrer were litigated. The plaintiffs, therefore, were neither precluded by the dispositions of the former motions in the exercise of the privilege accorded them to amend, from pleading the facts alleged in their pleading now before the court, nor concluded from maintaining that they state a cause of action.

The real point presented for decision is whether the plaintiffs have sufficiently alleged that they are heirs at law of the testator. The complaint shows that the testator left bim surviving no father, mother, brother, sister or widow, and it is then alleged that he left “him surviving as his only heirs at law and next of kin ” all of the sixteen plaintiffs and the three infant defendants, who were all related to him by blood, some as nephews and nieces and others as grandnephews, grandnieces and great grandnephews and great grandnieces, and the descent of each from deceased brothers and sisters of the testator is set out in full and annexed to the complaint and made a part thereof in a statement alleged to be “ the full line of descent of the heirs at law and next of kin ” of the testator, showing the names of brothers and sisters and their descendants and whether living or dead. The contention of the learned counsel for the appellant is that these allegations do not show that the testator left no direct descendants, and he cites in support of his contention that where the claim of heir-ship is through collateral descent the claimant must allege the extinction of all lines of descent which would be entitled to succeed before him. (Henriques v. Yale University, 28 App. Div. 354 ; Mitchell v. Thorne, 134 N. Y. 536 ; Moser v. Talman, 114 App. Div. 850 ; Reiners v. Brandhorst, 59 How. Pr. 91 , and Montgomery v. White, 10 Ky. L. Rep. 905.)

The first of these cases was decided in this department on a demurrer to a reply to a defense in partition. The plaintiffs therein claimed real estate as heirs of their sister, who they alleged made a will which was void on the ground of undue influence, and that she, therefore, died intestate; that she left a son surviving her who since died; that plaintiffs are her sisters and that one of the defendants was the daughter of a

deceased brother, and that plaintiffs and the daughter of the deceased brother “are her heirs at law.” The answer to which the plaintiffs were required to reply showed that the sister’s son left a valid will and that the validity thereof had been established in an action to which plaintiffs were parties. Judgment was entered upon the demurrer to the reply and final judgment was entered thereon dismissing the complaint, and on the appeal from that judgment the cause came to this court. After stating the facts and showing that the judgment was right for the reason that the surviving son of Mrs. Osborn, the decedent, took to the exclusion of her sisters on the theory, as claimed by the plaintiffs, that the will was void and that it appeared by the facts admitted that he died leaving a valid will so that plaintiff could not take through him, the learned justice writing the opinion proceeded to discuss the further contention that the complaint was insufficient and expressed the view, in which all the members of the court concurred, that the allegation that Mrs. Osborn left a son her surviving showed that the title vested in him, and annulled the allegation that the plaintiffs and their niece were heirs at law, and thereupon, following the dictum in Mitchell v. Thorne (supra), also stated that there was no allegation that Mrs. Osborn’s ■ son died with' out issue, and that since plaintiffs were only claiming as collateral heirs at law they were bound to plead that all the lines of descent which would have the right to claim before them were exhausted, and for the reason that they failed to do so the complaint was fatally defective. In Moser v. Talman (supra) the Appellate Division in the Second Department, by a divided court, citing Mitchell v. Thorne and Henriques v. Yale University (supra), held that the allegation that the plaintiffs and certain defendants-are the “only heirs at law and next of kin” of a decedent through whom they claimed title “ is a conclusion of the pleader and does not satisfy the rule that where one being only a collateral relative claims as an heir at law, he is bound to plead that all the lines of descent which would have the right to claim before him are exhausted.” The writer of the dissenting opinion in that case took the view that this was an allegation of an ultimate fact to be proved, and that it was a sufficient allegation of such fact the same as the allegation in

an action of ejectment that the plaintiff is the owner of the premises and entitled to possession. In that case the prevailing and dissenting opinions differed in respect to whether what was said on this point by this court in Henriques v. Yale University {supra) was dicta or essential to the decision. The decision of Reiners v. Brandhorst (supra) was at Special Term. The last decision on the point was by the Third Department in the case of Judson v. Staley ( 163 App. Div. 62 ), which was decided by a unanimous court. The only point presented for decision and decided in that case was that in such an action as this a complaint which merely alleged that the testatrix left her surviving the plaintiff’s intestate and the defendant “her next of kin and only heirs at law,” without showing their relationship or whether by direct or collateral descent, was a sufficient allegation of the ultimate fact to be proved that the plaintiff’s intestate and the defendants were her heirs and her only heirs at law.

It is of no practical general importance how the point is' decided, but it is important that it should be finally decided one way or another. Nothing but delay is accomplished by demurrers or motions for judgment on the pleadings presenting such a question. Of course, no one would claim that a witness could take the stand on a trial and testify that he was the only heir at law and next of kin of some decedent. Upon the trial the plaintiff will be required to present evidence showing that the heirship is as alleged. If this pleading be sustained it will at least tend to conciseness in pleading, and that is an advantage. The modern tendency of the courts is to construe pleadings more liberally and to discourage attempts to require the courts to decide questions which can be of no practical value in the final disposition of the litigation, since the question left doubtful by the pleadings is often determined upon the trial by uncontroverted evidence. The only possible advantage in requiring that the party in such case allege at length the facts showing the extinction of all lineal or collateral descendants who would have a prior right is that it would prevent the defendant being taken by surprise by any evidence that might be offered on the trial; but if there be danger of that, an adverse party may be protected by a bill of particulars or an examina

tion before trial. I am of opinion, therefore, that the complaint is sufficient.

It follows that the order should be affirmed, with ten dollars costs and disbursements, but with leave to appellant to withdraw the demurrer and to answer on payment of the costs and disbursements.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, with leave to appellant to withdraw demurrer and to answer on payment of costs.