
    May B. Smidt, Appellant, v. Charles C. Bailey, Respondent, Impleaded with Charles C. Bailey, as Sole Executor, etc., of Eliza T. Bailey, Deceased, and Others, Defendants.
    First Department,
    May 7, 1909.
    Pleading— bill of particulars — party not required to furnish, evidence.
    Where a complaint in partition alleges that a devise of lands is void by reason of the fact that the testatrix lacked testamentary capacity; that the execution was procured by fraud and undue influence, and that the will was not executed in the manner required by the laws of this State, the plaintiff will not be required to give a bill of particulars containing the evidence which she will produce in support of such allegations.
    Where a pleading specifies the nature of a claim the plaintiff will not be required to disclose the evidence by which she will establish it.
    Scott, J., dissented.
    
      Appeal by the plaintiff, May B. Smidt, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 1st day of March, 1909, directing the plaintiff to serve a bill of particulars upon the defendant Charles C. Bailey.
    
      Edgar L. Ryder, for the appellant.
    
      Emery H. Sykes, for the respondent.
   McLaughlin, J.:

This action was brought under section 1537 of the Code of Civil Procedure to partition certain real estate in the city of1 IS^ew York upon the ground that an apparent devise thereof by Eliza T. Bailey to the respondent Charles C. Baüey is void.

The facts set out in the complaint showing that such devise is void are that the testatrix was not, at the time of the execution of her will and codicil, or either of them, of sound mind, or memory and did not have testamentary capacitythat the execution and publication of the same were procured by fraud and undue influence practiced upon her by the respondent or “ some; other person ' or persons unknown to this plaintiff,” and she did not voluntarily execute them; and that the same Were not executed by her in the manner required by the laws of the State of Mew York or in such manner as to constitute them or either of them valid instruments .to pass an interest in real estate. ■ After the respondent had interposed an answer which denied the allegations of the complaint as to the alleged invalidity of such devise, he moved for a bill of particulars. The motion was granted, with ten dollars costs, and plaintiff was directed to deliver to the respondent within five days1 after service ' of a copy of. the order and notice of entry thereof upon her attorney, a verified bill of particulars setting forth the acts of fraud, undue influence, and the time and place thereof, practiced upon the testatrix by the respondent and “some other person or persons unknown to plaintiff,” with a description of such person or persons ; also the acts and circumstances of fraud and coercion exercised upon the testatrix by the respondent in procuring the subscription and publication of the will and codicil referred to,, as Well as the acts and circumstances of fraud and collusion in procuring the subscription and publication, of such instruments by a person or persons other than the respondent and a description of such person ; also in what particulars the will and codicil were not executed in the manner required by the laws of the State of Hew York to constitute them or either of them valid instruments to pass an interest in the real estate of the' testatrix. The plaintiff appeals from this order.

The order, it will be noticed, requires the plaintiff to set forth not the nature of her claim — because that is fully set out in the complaint — but all the evidence which she has tending to establish the truth of such claim. It is not the purpose of a bill of particulars to compel a party to furnish to his adversary the evidence upon which he relies. Before the will and codicil were admitted to probate the respondent, or the one asking to have such instruments probated, had to satisfy the surrogate that the same were duly executed and that the testatrix at .the time she executed them was, in all respects, competent to make a will and not under restraint. (Code Civ. Proc. § 2623.) The surrogate’s decree admitting the same to probate presumptively establishes these facts. (§ 2627.) This presumption the plaintiff, in order to succeed, must overcome by proof — that is, by evidence which, will satisfy the court that the allegations of the complaint in this respect are true. The respondent is fully advised by the complaint as to what the plaintiff claims, and this is all that he is entitled to. The rule seems to be well settled that where the pleadings specify the' nature of the claim, as this complaint does, that is sufficient and the party will not be required to disclose the evidence he has to establish the claim. (Smith v. Anderson, 126 App. Div. 24; Bennett v. Wardell, 43 Hun, 452 ; Hazard v. Birdsall, 61 id. 208.) The last case cited is directly in point. There the court held, as expressed in the head note, that “ Where an action has been begun for the partition of real property under section 1537 of the Code of Civil Procedure, the terms of which permit the plaintiffs to allege and establish that an apparent devise to third persons is void, and the plaintiffs allege that such a devise is void because of the testator’s incompetency and of undue influence exerted upon him, a motion made by the defendant for a bill of particulars requiring the plaintiffs to state in what particular the execution of said will was defective, and also any particular or special act or false representation relied on as establishing undue influence, will be denied.”

It would be manifestly unfair to the plaintiff to require her to inform the respondent what evidence she will- introduce at the trial to establish the allegations of the complaint unless the respondent were also required to inform her of the evidence he would introduce in answer thereto. If each, party were required to furnish to his adversary before trial a statement of the evidence upon which he would rely, it would undoubtedly shorten the trial and might in some cases materially aid the court in doing justice to them. But this is a subject for the consideration of the Legislature. There is now no provision of the statute which justifies the court in directing that such evidence be. furnished, and in the absence of a statute the court ought not to require it.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin and Clarke, JJ., concurred; Scott, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  