23 Barb. 25 | N.Y. Sup. Ct. | 1856
The issue originally made by the pleadings was between John Henry Herbert St. John, an infant, by his guardian Henry Joseph St. John, and Ferdinand St. John, as plaintiffs, and the defendant. The complaint stated, in substance, that William James St. John, deceased, the father of the plaintiff, John Henry Herbert St.'John, was seised in fee of the premises in question- That in the year 1845, the said William James died, leaving a will, whereby a power in trust was granted to the executors therein named, to sell all his estate, real and personal, in the state of New York, and after satisfying the charges and incumbrances thereon, to divide the proceeds equally between the wife and children of the said William James. That he left him surviving a wife and one child, viz. the plaintiff, John Henry Herbert St. John, who was born abroad, viz. in France, and is now an infant, &c. That the wife has since died, leaving no other children than the said John Henry Herbert, and that she was an alien. That the said John Henry Herbert is sole heir of whatever estate was left by the said William James St. John, and also of the deceased wife, and that, subject to the execution of the power contained in the said will, the title to the lands in question descended to the said John Henry Herbert, unless he is precluded from inheriting by reason of having been born out of the United States; and that in case he is thereby disabled, then that the said Henry Joseph and Ferdinand, as brothers of the deceased William James St. John, took by descent the title to" the lands, subject in like manner to the execution of the said power, unless the said Henry Joseph is precluded by reason of having been born out of lawful wedlock, and if disabled thereby to inherit, then the title to the said lands descended to the said Ferdinand alone, subject to the execution of said power.
The foregoing contains a statement of the title of the plaintiffs. The complaint then alleges the wrongful entry by the defendant, in the lifetime of the said William James, with subsequent and continued refusal to deliver up the same. The description of the premises claimed is in the following words: “ About fifty acres of land in the southern part of lot number
The complaint concludes With a demand of judgment for the possession, &c. and $1000 damages,- &c. The defendant’s answer was a denial of each and every allegation contained in the complaint; At the trial,- the plaintiffs’ counsel being about to proceed with the evidence on their part,- the defendant’s counsel objected, and moved for judgment in favdr of the defendant, on the ground that the complaint did riot state facts sufficient to constitute a cause of action in favor of eithér of the plaintiffs separately, or in favor of all of them jointly. The plaintiffs’ counsel then offered to rely upon the title of the plaintiff Ferdinand St. John, and moved for leave to amend the complaint so as to set up title in him alone. The defendant’s counsel objected to such amendment being made. The judge permitted the trial to proceed upon the' offer of plaintiffs’ counsel to rely exclusively upon the title of Ferdinand St. John, leaving the plaintiffs to apply thereafter for leave to make the necessary formal amendments. To this the defendant’s counsel excepted.- The proposed amended complaint is similar to the original one, excepting that it is entitled in the name of Ferdinand St. John as sole plaintiff, and excepting also in the statement of the plaintiff’s title to the premises in question. It states the seisin of William Jaimes St. John, his will and death, leaving a child born in France, the subsequent death of his wife, leaving no other children than said John Henry Herbert St. John, and that she was an alien, in like manner as stated in the original complaint; It then states “ that the title to the said lands descended, on the death of the said William James, to him the said Ferdinand, as sole heir at law, subject to the execution of the power contained in the said will.” In pursuance of the leave granted, &C; a motion was made at a special term, held in the county of Wayne, in October, 1855, for leave to amend the complaint conformably to the foregoing proposed amended complaint, which was annexed to the case, and a copy thereof served, with the
The defendant’s counsel now contends that it was an error at the circuit to allow the plaintiff td proceed in the name and upon the title of one of the original plaintiffs alone, and that the special term had no authority to make the order for the amendment of the complaint. The rulings at the circuit on this subject were upon questions of practice, not affecting the merits of the controversy between the parties. They were not calculated to produce any surprise of which the defendant has a right to complain, nor to obstruct, but rather to advance, the ends of justice) and were clearly within the discretion of the court. We think they do not form sufficient grounds for granting a new trial) or of refusing judgment for the plaintiff on the case. (Code, § 173.)
The issue must now be regarded, for the purposes of all the questions arising upon the present case, as having been formed upon the amended complaint, and the answer of a general denial of all its allegations as put in to the original complaint, and the objection inade at the trial, to. the sufficiency of the complaint, must be regarded as made to the amended complaint. That objection, as so applied, was that the amended complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff Ferdinand St. John. It was reduced upon the argument to the following specifications : 1st. That whether the will of William James St. John vested a fee or a mere power in trust in the executors is a question for the court, upon an examination of the will, which is not shown or its whole contents stated, and not a question for the jury. This specification is not warranted by the complaint. The whole statement of the pleading in relation to William James St. John having left a will must be taken together, as well the statement of the contents of the will a& the fact of his having left a will. When
It is contended on the part of the plaintiff, upon the facts embraced in this admission, that upon the death of William James St. John his lands in this state descended to Ferdinand St. John, It is not claimed, and cannot be, that at the common law such would be the case, because William James St. John was of illegitimate birth, and not having inheritable blood, could neither inherit lands himself, nor transmit them by descent to any other person, excepting his own legitimate offspring or persons otherwise capable of inheriting, claiming by inheritance from or through them. Our statute of descents, however, has introduced a modification of the rule of the common law in this respect. The statute referred to provides that, "In case of the death without descendants, of an intestate, who shall have been an illegitimate, the inheritance shall descend to his mother. If she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate.” (1 R. S. 753, § 14.) The mother of William James, Lady Bolingbroke, who survived him, could not under this statute inherit his lands, because she was an alien, and his son, John Henry Herbert; could not inherit, because he was also an alien. His brother, Henry Joseph, was incapable of inheriting, as well because of his own, as of William James’s illegitimate birth. The question then is, whether Ferdinand the plaintiff is entitled to the inheritance. He could not receive it through his mother, who was also the mother of William James, because she was an alien, and for that reason incapable of receiving or transmitting the inheritance. We are not able to perceive, therefore, how
If this view is correct, it puts an end to the claim of Ferdinand St. John to the premises in question, and supersedes the necessity of considering any of the numerous other questions raised and discussed upon the argument; and it follows that the defendant is entitled to judgment on the case.
Ordered accordingly.
Johnson, T. R. Strong and Welles, Justices.]