150 N.Y.S. 387 | N.Y. App. Div. | 1914
The appellant demurred to the second amended complaint on the ground that it does not state facts sufficient to constitute a cause of action. The plaintiffs thereupon moved for an order overruling the demurrer and for judgment on the pleadings, and the appellant moved for an order sustaining her demurrer and for judgment on the pleadings. The plaintiffs’ motion was granted to the extent of overruling the demurrer, but appellant was given leave to answer and her motion was denied and separate orders were entered, and from them she appealed.
This is an action based on the provisions of section 2653a of the Code of Civil Procedure
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
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
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.
See Laws of 1914, chap. 448, adding to Code Civ. Proo. § 2771.—[Rep.