Shrady v. Shrady — 42 A.D. 9

Majority

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George F. Shrady, Respondent, v. Jacob Shrady, John Shrady and William Shrady, Appellants, Impleaded with Others.

Headnote

Pleading — an admission-in an answer of certain defendants in a pa/i'tition suit that advancements had been made to all the heirs—it cannot be confined in its use to such answering defendants alone.

A party to an action desiring to avail himself of an admission or allegation contained in the pleading of his adversary must accept the admission or allegation as an entirety; he cannot accept such portion as may be available to him and reject the remainder.

Where an action is brought by an heir at law against his co-heirs to partition property, of which their common ancestor died seized, an allegation contained in the answer interposed by certain' of the defendants to the effect that the common ancestor had made advancements to all the heirs cannot be regarded as an admission binding upon the defendants who interpose such answer unless . it be regarded as binding upon all the other heirs also.

Appeal by the defendants, Jacob Shrady and others, from portions of an interlocutory judgment of the Supreme Court in'favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of December, 189.8, upon the report of a referee, and also from so much of the 41st paragraph thereof as provides that there shall be first added to the net proceeds of the sale of the premises the total amounts advanced to each of the said defendants, Jacob Shrady, John Shrady and William Shrady, with interest on each of said advancements from the 10th day of June, 1875, and that the total amount so determined shall be divided among the plaintiff and the four defendants, Jacob Shrady, John . Shrady, William Shrady and Anna B. Yan Kirk, in the manner provided in

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said paragraph, so far as such division directs that various sums of" money therein specified, and interest thereon from the 10th day of" June, 1875, shall be deducted as advancements "from the shares .of said defendants, .John Shrady, Jacob Shrady and William Shrady, and directs that the shares of the- plaintiff and the defendant; Anna B. Yan Kirk shall be paid do them without deducting any advancements.

This action was brought for the partition of. certain real estate,, owned in common by the plaintiff and the defendants, Jacob, John and William Shrady and Anna B. Yan Kirk. The complaint was-in the usual form. The defendant Yan Kirk admitted the allegations of the complaint and joined with plaintiff in asking that a. salé and partition be. had. The. diefendants Jacob, John and William ' Shrady interposed a joint answer which, except the formal part of it, was as follows:

“ I. Admit all and singular the allegations and statements in said complaint contained, and further answering :

“II. Allege, upon information and belief, that during the lifetime of the said John Shrady mentioned in said complaint, and who was the father of the said plaintiff and the defendants, Jacob Shrady,. John Shrady, William Shrady and Anna B: Yan Kirk, he, their said, father," made certain advances of moneys to the said plaintiff and the said defendants, Jacob Shrady, John Shrady, William Shrady and Anna B. Yan Kirk, as follows:

“To the said plaintiff, George F. Shrady, the sum of seven, thousand dollars on the day of , 18 ". ' »

“ To the said defendant Jacob Shrady the "sum of thirty-two-hundred and fifty dollars on the . day of , 18 .

“ To the said defendant John Shrady the sum of twenty-one- . hundred and twenty-five dollars on the day of , 18 .

“To the said defendant William Shrady the sum of five hundred.' and sixtydwó dollars and fifty cents on the " day of ,, 18 . .

“To the said defendant Anna B. Yan Kirk the sum of thirty-five hundred-dollars oil the jay of , 18 .

“III. And the said defendants further allege that the said advances and each, of them were made by the said’ John Shrady under .the express understanding and agreement, that the same

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should be, and continue to be, part and parcel of the estate of the-said John Shrady, and the parties receiving the same should be charged therewith, together with the interest thereon, in any final division or distribution of said estate among the children or heirs, at law of the said John Shrady, as and by way of equality of partition,, division and enjoyment of his said estate.”

To the foregoing answer the plaintiff served a reply which, except-the formal part of it, was as follows :

“ I. That with respect to the allegations in the said counterclaim contained that certain advances of moneys were made by the decedent, John Shrady, during his lifetime, to the said defendants,. Jacob Shrady, John Shrady, William Shrady and Anna B. Yan. Kirk, this plaintiff admits that advances of moneys Avere so made to-each of said last-named defendants respectively, by the said decedent, John Shrady, and this plaintiff further admits that the said, moneys Avere so advanced under the express understanding and. agreement, and that the same should be charged against the shares, of the said last-named defendants in any distribution in this action,, but this plaintiff has no knowledge or information sufficient to form a belief as to the amounts of moneys that have been so advanced to-each of said last-named defendants.

“II. .Each and every other allegation in the said counterclaim contained in said paragraphs' II and III of the said answer, this, plaintiff denies upon information and belief.”

An order was thereafter made sending the matter to a referee to-hear and determine, and make a report in the usual manner Avitlr regard to the questions involved in the partition. The referee-reported that the sum alleged to have been advanced to the-plaintiff was a loan, and to the defendant Yan Kirk was a gift, but that the defendants Shrady Avere liable to and should be held to-account for the sums advanced to them respectively as alleged in their answer, together with- interest thereon from the date of thehfatlier’s death, June 10, 1875. Upon the report an interlocutory-judgment was entered, and the defendants Jacob, John and William have appealed from so much of it as relates to the question. of advancements'. Other facts appear in the opinion.

Lemuel Skidmore, for the appellants.

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Barclay E. V. McUarty, for the respondent George F. Shrady.

Louis E- Boyle, for the respondents Van Kirk.

There is little or no dispute ad to' the facts. The only question between the parties is one relating to advancements. TJpon the trial before the referee it was made to appear that John Shrady died intestate on the 10th of June, 18:75, seized and possessed of nearly all the real estate mentioned and described in the complaint, and leaving him surviving the plaintiff, George F. Shrady, and the defendants, Jacob, John and William Shrady and Anna B. Van Kirk, his children and only heirs at law, all of whom were of full age. It was also made to appear that the parties received from theifather between 1858 and the time of his death, certain sums of money- mentioned in the answer of the defendants Shrady — but there was no evidence whatever showing or tending to show that the deceased intended the same, or any of it, as advancements, or that any of the parties should be held chargeable with the same as such on the final distribution and division of his estate. The only thing to justify even a suspicion, much,less a belief, that the parties themselves understood that they were advancements, was interviews had between them many years after their father’s death, and then only -after a disagreement had arisen as to the' management and division of the estate. Several- conversations took place between some or all of the parties in the years 1895 and 1896, and in one. of them it appears, according to the testimony of William Shrady, and it is not disputed, that the plaintiff, in the presence of the other heirs at law, said he would “be willing to pay his $7,000 if Anna would pay hers, and so did the rest,” and “ they agreed to that.” Other interviews are detailed in the record, but they are substantially of the character of the one just referred to, or to the effect that some of the.parties were trying to induce the plaintiff to ^account for the $7,000 which lie: had received, a'nd if he would do that, then they were willing to account for what they had received. These interviews appear to be the origin of, and are the only basis for, the claim made by the defendants Shrady in. their answer that the sums received by the different children from their father were, nr should be, accounted for as advancements.

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The conclusion reached by the referee, that the sums received by the defendants Shrady were advancements, and so intended by their father, is wholly unsupported by evidence, and he undoubtedly reached that conclusion solely from the allegations contained in their answer. But their answer was insufficient for that purpose. These allegations as to the advancements to them could not be regarded as an admission to that effect unless the entire allegations as to the advancements were accepted. The general rule is that, upon the trial of an action, where the plaintiff desires to avail himself of an admission or allegation contained in an answer as a pleading, he must accept the admission or allegation as an entirety; he cannot accept such portion of it as may be favorable to him and reject the remainder. (Gildersleeve v. Landon, 73 N. Y. 609 ; Goodyear v. De La Vergne, 10 Hun, 537 ; Vanderbilt v. Schreyer, 21 id. 537 ; Young v. Katz, 22 App. Div. 546 .) Recourse, therefore, to that allegation to bind any of the heirs at law would necessitate the same result as to the others. They were all included in the one allegation, and, if binding as to one, it is equally binding as to the others.

There is evidence to sustain the findings of the referee as to the. moneys received by the defendant Van Kirk and by the plaintiff, but there is no evidence to sustain the findings as to the moneys received by the defendants Jacob, John and William Shrady, and, therefore, the judgment must be modified, by striking-therefrom the provision' of it which determines that. the 'sums received by them were advancements, for which they should be .charged in the final division or distribution of the proceeds of the sale to be made, and, as thus modified, the judgment must be affirmed, with costs and disbursements of this appeal to the appellants, to be paid out of the proceeds of the sale.

Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment modified as directed in opinion, and, as modified, affirmed, with costs and disbursements of appeal to the appellants,, to be paid out of the proceeds of the sale.

Cases cited

Gildersleeve v. Landon 73 N. Y. 609 N.Y. 1878-04-16 p. 13