100 N.Y.S. 231 | N.Y. App. Div. | 1906
Lead Opinion
This action is by certain, of the alleged heirs and next of kin against executors and other alleged heirs and next of kin based on the contention that the will violates chapter 360 of the Laws of 1860, in that at the time of his death the testator had a wife then living, and that at his death he did bequeath and devise more than one-lialf of his estate to charitable corporations. The plaintiff complains that the testator died seized and possessed of certain real and personal property situated within this State. The testator, after two specific legacies, gave, devised and bequeathed all the residue of his estate to his wife for life. He then provided, in case of her predecease or upon her death, that the executors should convert his estate into cash, and then bequeathed to various persons and charitable corporations certain specific sums of money. Finally, he directed that at the death of his widow all the rest and residue of his property, including all lapsed legacies, should be divided share and share alike between two charitable corporations. He also empowered his executors, in their discretion, to lease or sell any of his property. The defendant executor Hunk, Rank as legatee, and one of the residuary legatees, separately demurred to the complaint.
I think that in any event the demurrer is good, on the ground that the plaintiffs do not well allege the facts that entitle them to bring this suit. The relationship of the parties plaintiff and defendant to the testator, as alleged, is cousin. The pleader alleges that the relator died without issue, and leaving no father or mother. This allegation disposes of lineal descendants and parents, but not of brothers and sisters, or descendants of brothers or sisters, or of uncles or aunts, of whom some or all are preferred before cousins by the Statutes of Descent and-Distribution respectively. (See Real Prop. Law [Laws of 1896, chap. 547J, § 281 et seq.j Code Civ. Proc. § 2732 et seq.) It is quite true that the pleader alleges that the plaintiffs and the other parties named are the “ only heirs at law and next of kin,” but this 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. (Henriques v. Tale University, 28 App. Div. 361, and cases cited; app. dismissed, 157 N. Y. 672; 12 Ency.
There remains, then, at this stage of the case to consider only such further objections as challenge the very right of maintenance of this suit. I think that under Read v. Williams (125 N. Y. 560) such an action lies. The objection that under the terms of the will the plaintiffs, even if the proper parties, with proper pleading, have no such interest as would warrant any present suit, was held good in a similar case in Kalish v. Kalish (45 App. Div. 528). But the case, while affirmed, was reversed upon that point. (Kalish v. Kalish, 166 N. Y. 371.) The objection that the plaintiffs not named in the act of 1860 have no right to assert the violation of the statute is met by Robb v. Washington & Jefferson College (103 App. Div. 345; affd., 185 N. Y. 485).
The interlocutory judgment must be reversed, with costs to both appellants, and the demurrer sustained, with leave to the plaintiffs to plead over upon the usual terms.
ELirschberg, P. L, Woodward and Hooker, JJ., concurred; Gay nor, J., read for affirmance.
Dissenting Opinion
The allegation of the complaint is that the testator died leaving the plaintiffs (excepting one who is named) and certain defendants
Tllere is a settled and familiar rule of pleading that an allegation of a conclusion of law in a pleading goes for nothing ; is a nullity. But an allegation of a conclusion of fact is another thing; the rule has nothing to do with it. An allegation of an ultimate fact to be proved has always sufficed in pleading although it be a mere conclusion from other facts which have to be proved. To plead such other facts is not permissible, for that would be pleading the evidence, of which only a novice would be guilty. For instance, in an action of ejectment a bare allegation that the plaintiff is the owner of the property, and entitled to the possession thereof, suffices. It is not necessary to allege the stages of heirship, of devise, of grant,' or the facts of adverse possession, upon which such ownership depends. In the same way an allegation that a decedent died leaving the plaintiff as his only heir at law suffices. It may be an allegation of a conclusion of fact, but that must not be confounded with the rule against allegations of conclusions of law. It is an allegation of the ultimate fact which has to be proved. The contention that it was necessary for the plaintiffs to trace their descent by allegations of fact of its source and stages in the complaint, arises out of momentarily mistaking a rule of evidence for a rule of pleading. In order to establish their heirship they have to prove their source and stages of descent on the tidal; but that does not imply that such facts have to be pleaded; there is no such rule of pleading.
It is only necessary (if even that be necessary) to turn to any standard encyclopsedia or text book on pleading to find that an allegation of an ultimate fact to be proved, although it be necessarily an allegation of a conclusion of fact, is good pleading; it is not an allegation of a conclusion of law. The dictum to the contrary in the case of Henriques v. Yale University (28 App. Div. 361) is evidently inadvertent and certainly does not control us. We should not by following the inadvertence of any judge or
Interlocutory judgment overruling demurrer reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiffs to plead over upon the usual terms.
