
    Hazard et al. v. Birdsall et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1891.)
    1. Bill of Particulabs—Defective Execution of Will.
    In an action under Code Civil Proc. IT. Y. § 1537, which permits the heirs of a deceased person, who died in possession of land, to maintain partition, notwithstanding an apparent devise to another, the complaint alleged that a will by which deceased devised the land was void because it was not duly executed, because deceased was mentally incompetent to make a will, and because the will was procured by the undue influence of a devisee. Meld, that it was error to require plaintiffs to furnish defendants with a bill of particulars specifying wherein the will was defectively executed, as this would require them to produce the legal argument on the point, which is not the office of a bill of particulars.
    2. Same—Undue Influence.
    It was also error to require plaintiffs to furnish a bill of particulars specifying the acts or false representations relied on to establish undue influence, because this would compel plaintiffs to disclose their evidence, and also because the complaint does not charge any fraud.
    
      8. Same—After Answer.
    While Code Civil Proo. N. Y. § 531, which, empowers courts to order a party to furnish his adversary with a bill of particulars, does not in terms restrict the granting of such orders to cases where the motion is made before answer, yet the fact that a defendant is able and willing to join issue on the allegations of the complaint is a circumstance, in actions other than those on an account, to be considered in determining whether or not the particular information desired is in reality needed by defendant.
    Appeal from special term, Monroe county.
    Action for partition by Hannah L. Hazard and another against Cordelia Birdsall and others. Plaintiffs claim the land as heirs at law of Benjamin Birdsall, deceased, while defendants claim as devisees under bis will. Plaintiffs alleged that the will was void, and they appeal from an order requiring them to furnish defendants a bill of particulars as to the alleged defective execution of the will, and as to the specific acts or representations relied on to show undue influence.
    Reversed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      C. J. Browning, for appellants. A. E. Sutherland, for respondents.
   Macomber, J.

This action is for the partition of certain lands described in the complaint, of which one Benjamin Birdsall died seised on the 22d day of April, 1890. The plaintiffs are the daughter and grandson of the decedent, and the defendant Cordelia Birdsall is his widow. The claim made by the plaintiffs is that they are entitled to a portion of the real estate as tenants in common with other parties named, although the deceased left a will by which the land was apparently devised to the respondent Cordelia Birdsall. The action in form is under section 1537 of the Code of Civil Procedure, which permits persons claiming as joint tenants or tenants in common, by .reason of being heirs at law of the person who died in possession of the real property, to maintain an action for the partition thereof, notwithstanding an apparent devise thereof to another by the decedent! By the terms of this section, it is incumbent upon the plaintiffs to allege and establish that such apparent devise is void. The allegations of the plaintiffs are, so far as is material to this appeal, “that although the said paper purports to be the last will and testament of the said Benjamin Birdsall, and, by its terms, devises or bequeaths the said real estate or the proceeds thereof to the parties above mentioned, the said apparent devise and bequest, together with the power of sale contained in the said alleged will, is void; and said alleged will is void, as to said property, for the reason that the said paper and instrument was not duly executed by the said deceased as his last will and testament, and the alleged execution thereof was not his free and voluntary act; and that when the said paper purports to be executed the said deceased was not of sound mind, memory, and understanding, and that he was incompetent, by reason of mental weakness, bodily infirmities, and unsoundness of mind, to make a will; and that the said Benjamin Birdsall was procured to put his signature to the said paper, and to execute the same, by the defendant Cordelia Birdsall, through improper and undue influences brought to bear upon him by the said Cordelia Birdsall, and the same was not the free and voluntary act of said deceased.” The order made upon the defendants’ motion required the plaintiffs to furnish to the defendants’ attorneys, within 20 days, a bill of particulars setting forth —“First, the particular or particulars in which the execution of the will is alleged to be defective; second, any particular or special act or false representation, if there be any such act or false representation, which is relied on as establishing undue influence.”

Ho claim is made but that the complaint is precise and accurate enough to enable the defendants to answer its allegations intelligently; for, simultaneously with the service of the affidavits and notice of motion, an answer, putting in iss ue the principal allegations of the complaint, was served. While it is true that under section 531 of the Code of Civil Procedure the court is not in terms restricted in granting motions for bills of particulars to cases where the motion is made before answer, yet the fact that a defendant is able and willing to join issue upon the allegations of the complaint is a circumstance, in actions other than those upon an account, to be considered in determining the question whether or not the particular information desired is, in reality, needed by the defendant. Undoubtedly, the office of a bill of particulars is to amplify the pleadings so as to specify clearly the claim or defense set up, and to limit the generality of a pleading; thus preventing surprises at the trial. But it is not in all cases that a bill of particulars can be'of special service to parties, so long as the pleading itself is definite and certain, and to which the opposite party has voluntarily answered before notice of motion. In the case as presented on this appeal, it seems as if the demand actually made by the notice of motion and by the order was that the plaintiffs disclose to the defendants the evidence upon which they intended to rely at the trial. This certainly is not the office of the bill of particulars. Though the language of the Code is general, and applicable to all civil actions, yet in actions outside of those upon an account, where the items thereof are usually directed to be served when not contained in the pleading, the- granting of the order is not a matter of course. The power must be exercised in each case according to the nature of the action, and the character of the inquiry to be instituted upon the trial thereof. It appears to us that the first direction contained in the order appealed from requires the plaintiffs to produce the legal argument showing wherein the will was not properly executed, and the second the evidence upon which they rely to establish undue influence; but it is not the office of a bill of particulars to compel a disclosure of these matters. In the case of Bennett v. Wardell, 43 Hun, 452, which was an action, like the one before us, for the partition of real estate, and where the complaint alleged that the defendant therein claimed an interest in the property under a devise of a will which was void, it was held that the court should not order a bill of particulars specifying the grounds upon which it was claimed the devise was void, and accordingly reversed the order of the special term granting the motion for such bill. Moreover, we do not understand that fraud is charged in the complaint against the apparent devisee, but the order requires the disclosure of any acts of fraud relied on, which may have resulted in making a case of undue influence. In this respect the order was unwarranted by the case, even if in other respects it could be upheld. But under the authority cited above, and for the reason hereinbefore stated, we think that the order of the special term was not supported by the case presented. Order reversed, with.$10 costs and disbursements, and the motion denied, with $10 costs.

All concur.  