Masterson v. Townshend — 23 N.Y. St. Rep. 626

Majority

p. 626

Peter T. Masterson, Pl’ff and Resp’t, v. John Townshend et al., Def’ts and App’lts.

(New York Superior Court, General Term,

Filed May 6, 1889.)

Headnote

1. Ejectment—Complaint—Sufficiency of

The rule requiring that where the complaint alleges, in an action of ejectment, that the plaintiff is heir of an ancestor, it is necessary to show how he is heir, does not apply to cases where the plaintiff claims, not a particular estate or a cause of action in an ancestor, hut claims an estate in fee simple. It is sufficient to state a seisin in fee simple per se. That is, simply to state that the party “was seized in his demesne as of fee of and in a certain messuage/' etc..

p. 627

2. Same.

So that where the complaint alleges “that by reason of the matters hereinbefore set forth, plaintiff became and is now seized in fee of one undivided sixtieth interest in the premises hereinbefore described, and entitled to the immediate possession thereof,” it is sufficient, unless at least, the “ matters hereinbefore set forth ” show on their face that the plaintiff was or is not seized in fee; and the averments of the complaint in this action, not being inconsistent with a fee simple in the plaintiff, may be looked upon as matters of inducement to apprise defendants of the course of title under which plaintiff claims, and the order of the special term, overruling the demurrer to the complaint, was affirmed.

Appeal by defendants from an interlocutory judgment, overruling a demurrer to the complaint, entered upon an order for such interlocutory judgment.

John Townshend, for app’lts; George Wilcox, for resp’t.

The action is in ejectment. The complaint alleges that William H. Masterson had owned in fee an undivided half of certain land; that he died leaving a will which created a trust in the land; that said trust had determined; that plaintiff claims as one of the children of one James Masterson, who was a brother of William H. Masterson, or in other words, plaintiff claims as a nephew of William H. Masterson.

The complaint on this point alleges, subdivision 7, “ that the said William H. Masterson left him surviving his widow, Mary Masterson (now Mary McNulty), and John S. Master-son, Hugh Masterson, Peter Masterson and James Master-son, his brothers, Mary Agnes Coleman, and Ann E. Treacy, his sisters, his only heirs-at-law.

Subdivision 8. “ That on or about the 28th day of May, 1879, the said James Masterson died, intestate, leaving him surviving his widow, Theresa Masterson, and Henry B. Masterson, Peter T. Masterson, the plaintiff herein, Julia E. Jenkins, and Annie E. Clark, his children, and only heirs-at-law.”

The defendants demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action.

For the demurrer it is argued, that whether one is an heir, is a conclusion of law, from the facts that concern the existence or non-existence of individuals, who may stand as descendants or collaterals, etc., of a deceased, and that, therefore, a plaintiff claiming as heir, being a collateral, should aver that there were no descendants, or father or mother living, and cases are cited to show, that where it is necessary to allege that plaintiff is heir of an ancestor, it is necessary to show now he is heir.

It is not denied, chat m certain cases, such a rule is to be applied. In a case, however, where the plaintiff claims not a particular estate, or a cause of action in an ancestor, where he must show how by the succession of the estate, he derives a title to the action, but claims an estate in fee.

p. 628

simple, the rule is, in general, .it is sufficient to state a seisin in fee simple, per 'se, that is simply to state that the party “ was seized in his demesne as of fee of, and in a certain messuage,” etc. Stephens on PL, 9 Am, Ed., 305 (*306).

The complaint in its ninth subdivision, alleges, “that by reason of the matters hereinbefore set forth, plaintiff became, and is now seized in fee of one undivided sixtieth interest in the premises hereinbefore described, and entitled to the immediate possession thereof.” ‘

The complaint is, therefore, sufficient, unless, at least, the “matters hereinbefore set forth,” show, on their face, that plaintiff was, or is not, seized in fee. The matters are not inconsistent with a fee simple in the plaintiff. They may be_ looked'upon as matters of inducement, and certainly apprize the defendants of the course of title under which plaintiff’s claim. It is not now considered, whether or not the plaintiff can claim another title than that derived as the •complaint states.

I am, therefore, of the opinion, that the judgment and •order should be affirmed, with costs.

O’Gorman, J., concurs.