
    Frank H. Tuthill and Others, Respondents, v. Margaret Eleanor Forbes Debovoise (Sued by the Name of Margaret Eleanor Forbes), Individually and as Executrix, etc., of Enoch R. Tuthill, Deceased, Appellant, Impleaded with Camilla Ruth Tuthill and Others, Defendants.
    
      (Supreme Court, App. Div., First Department,
    
    
      December 4, 1914.)
    Will—Action to Determine Validity of Probate—Pleading—Complaint—Sufficiency of Allegation that Plaintiffs Abe Heirs at Law of the Testator—Necessity of Alleging Facts Showing Extinction of All Lineal or Collateral Descendants Who Would Have a Prior Eight to that of Plaintiff.
    A complaint in an action, under section 2653a of the Code of Civil Procedure, to determine the validity of the probate of a will which alleges that the testator left him surviving no father, mother, brother, sister or widow, and that he left “ himi 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, sufficiently alleges that the plaintiffs are heirs at law of the testator.
    The only possible advantage in requiring the plaintiff in such a case to allege at length the facts showing the extinction of all lineal or collateral descendants who would have a prior right to that of the plaintiff, is that it would prevent the defendant being taken by surprise at the trial, but this may be obviated by a bill of particulars or an examination before trial.
    Appeal by the defendant, Margaret. Eleanor Forbes Debovoise, individually and as executrix, etc., from an order of the Supreme Court, made at the FTew York Special Term and entered in the office of the clerk of the county of FTew York on the 28th day of August, 1914, overruling her demurrer to the complaint, and also from an order entered in said clerk’s office on the 25th day of August, 1914, denying defendant’s motion to sustain her demurrer herein and for judgment on the pleadings.
    Wilson Lee Cannon, for the appellant.
    Edwin P. Kilroe, for the respondents.
   Laughlin, J.

The appellant demurred to the second amended complaint on the ground that it do'es 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, hut 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 to determine the validity of the probate of the will of Enoch R. Tuthill, deceased, which was admitted to probate in Hew York county on the 1st day of December, 1911. Counsel for appellant draws attention to the fact that the decisions, of the Special Term from which the appeal was taken are inconsistent with two former rulings at Special Term involving the same point on substantially the same allegations, wherein it was held that the complaint was insufficient, and as appears- by formal stipulation he has- at the request ° of counsel for plaintiffs — for what purpose is not apparent — printed the driginal and first amended complaints showing that fact; but the orders made on the former motions' for judgment on the pleadings after the presentation of each successive demurrer are not in the record, and it is not claimed that the decisions thereon are res adjudiccda of the question now presented. Each of the former demurrers presented another first ground and that now presented as a second ground of demurrer. When each of the former demurrers was brought on for hearing the plaintiffs recognized that their pleading was vulnerable on the first ground and moved for leave to amend/ and it is conceded by the points that in each instance their application for leave to amend was granted and the demurrer sustained, with ten dollars costs, but whether by the same order, or whether the demurrer was sustained on both grounds, does not appear, and counsel do not agree with respect to whether or not both grounds of the demurrer were litigated. The plaintiffs, therefore, were neither precluded by the dispositions of the former motions in the exercise of the privilege accorded them to amend, from pleading the facts alleged in their pleading now before the court, nor concluded from maintaining that they state a cause of action.

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 him 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 heirship 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 deceased brother, and that plaintiffs and the daughter of the deceased brother are her heirs at law.” The answer to which the plaintiffs were required to reply showed that the sister’s son left a valid will and that the validity thereof had been established in an action to which plaintiffs were parties. Judgment was entered upon the demurrer to the reply and final judgment was entered thereon dismissing the complaint, and on the appeal from that judgment the cause came to this court. After stating the facts and showing that the judgment was right for the reason that the surviving son of Mrs. Os'born, the decedent, took to the exclusion of her sisters on the theory, as claimed by the plaintiffs, that the will was void and that it appeared by the facts admitted that he died leaving a valid will so that plaintiff could not take through him, the learned justice writing the opinion proceeded to discuss the further contention that the complaint was • insufficient and expressed the view, in which all the members of the court concurred, that the allegation that Mrs. Osborn left a son her surviving showed that the title vested in him, and annulled the allegation that the plaintiffs and their niece were heirs at law, and thereupon, following the dictum in Mitchel v. Thorne (supra), also stated that there was no allegation that Mrs. Osborn’s son died without issue, and that since plaintiffs were only claiming as collateral heirs at law they were bound to plead that all the lines of descent which would have the right to claim before them were exhausted, and for the reason that they failed to do so the complaint was fatally defective. In Moser v. Talman (supra,) the Appellate Division in the Second Department, by a divided court, citing Mitchell v. Thorne and Henriques v. Yale University (supra), held that the allegation that the plaintiffs and certain defendants are the “ only heirs at law and next of kin ” of a decedent through whom they claimed title “ 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.” The writer of the dissenting opinion in that case tookdhe view that this was an allegation of an ultimate fa'ct to be proved, and that it was a sufficient allegation of such fact the same as the allegation in an action of ejectment that the plaintiff is the owner of the premises and entitled to possession. In that case the prevailing and dissenting opinions differed in respect to whether what was said on this point by this court in Henriques v. Yale University (supra) was dicta or essential to the decision. The decision of Reiners v. Brandhorst (supra) was at Special Term. The last decision on the point was by the Third Department in the case of Judson v. Staley (163 App. Div. 62), which was decided by a unanimous court. The only point presented for decision and decided in that case was that in such an action as this a complaint which merely alleged that the testatrix left her surviving the plaintiff’s intestate and the defendant “ her next of kin and only heirs at law,” without showing their relationship or whether by direct or collateral descent, was a sufficient allegation of the ultimate fact to be proved that the plaintiff’s intestate and the defendants were her heirs and her only heirs at law.

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 examination before trial. I am of opinion, therefore, that the complaint is sufficient.

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. 443, adding to Code Civ. Proc. § 2771.—[Rep.
     