Moser v. Talman

Jenks, J.: This action is by certain, of the alleged heirs and next of kin against executors and other alleged heirs and next of kin based on the contention that the will violates chapter 360 of the Laws of 1860, in that at the time of his death the testator had a wife then living, and that at his death he did bequeath and devise more than one-lialf of his estate to charitable corporations. The plaintiff complains that the testator died seized and possessed of certain real and personal property situated within this State. The testator, after two specific legacies, gave, devised and bequeathed all the residue of his estate to his wife for life. He then provided, in case of her predecease or upon her death, that the executors should convert his estate into cash, and then bequeathed to various persons and charitable corporations certain specific sums of money. Finally, he directed that at the death of his widow all the rest and residue of his property, including all lapsed legacies, should be divided share and share alike between two charitable corporations. He also empowered his executors, in their discretion, to lease or sell any of his property. The defendant executor Hunk, Rank as legatee, and one of the residuary legatees, separately demurred to the complaint. I think that in any event the demurrer is good, on the ground that the plaintiffs do not well allege the facts that entitle them to bring this suit. The relationship of the parties plaintiff and defendant to the testator, as alleged, is cousin. The pleader alleges that the relator died without issue, and leaving no father or mother. This allegation disposes of lineal descendants and parents, but not of brothers and sisters, or descendants of brothers or sisters, or of uncles or aunts, of whom some or all are preferred before cousins by the Statutes of Descent and-Distribution respectively. (See Real Prop. Law [Laws of 1896, chap. 547J, § 281 et seq.j Code Civ. Proc. § 2732 et seq.) It is quite true that the pleader alleges that the plaintiffs and the other parties named are the “ only heirs at law and next of kin,” but this 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. (Henriques v. Tale University, 28 App. Div. 361, and cases cited; app. dismissed, 157 N. Y. 672; 12 Ency. [852] Pl. & Pr. 1042, citing Larue v. Hays, 7 Bush [Ky.], 53; Kerlee v. Corpening, 97 N. C. 334 ; Fite v. Orr's Assignee [Court of Appeals Ky.], 1 S. W. Rep. 582 ; Reiners v. Brandhorst, 59 How. Pr. 91. The opinion in the last ease is by Van Vorst, J., and the case is cited in Sbarboro v. Health Department [26 App. Div. 180]. Also, 10 Ency. Pl. & Pr. 53, which states the rule as follows: “ When a person sues as heir the declaration must show how he is heir by setting forth his pedigree,” citing Denham v. Stephenson, 1 Salk. 355; Jefferson v. Morton, 2 Saund. 7, note 4; Treasurer v. Hall, 3 Ohio, 225; Philipps v. Philipps, L. R. 4 Q. B. Div. 127, where [at p. 134] Brett, L. J., says : “ Where the facts in a pedigree are facts to be relied upon as facts to establish the right or title, they must be set out, but where the pedigree is the means of proving the facts relied on as facts by which the right or title is to be established, then the pedigree is evidence that need not be set out.” The Encyclopaedia also cites Baker v. Harwood, 7 Sim. 375 ; Hubbard v. Urton, 67 Fed. Rep. 419.) See Abb. Tr. Brief Pl. [2d ed.] 524.) In Fite v. Orr's Assignee (supra) the allegation was that the appellees “ are the only heirs of said Payne and Orr.” The Court of Appeals of Kentucky say: “ This averment, as has been repeatedly held by this court, ‘ is but a conclusion of law,’ and not an averment of fact; and not being an averment of fact, the adverse party admits nothing by his failure to answer it. The party who claims his title or right to property by reason of his heirship must allege liis kinship to the person through" whom he claims, and also allege that there are no others nearer of kin than himself; that is, he must set out the degree of relationship in which he stands to the person through whom he claims, and also show that there are none standing in a nearer degree of relationship, so that the court may be able to say, from the facts stated in that regard, whether the party, under the law, is entitled to the property as heir, etc. The answer of appellees is fatally defective in this regard.” In view of the dissent in this case it seems proper that I say that I do not regard the expression of the court upon this point' in Henriques v. Yale University (supra) as “ dictum.” The point of pleading was presented in the case, and the court passed upon it directly in the words: “ There is not even an allegation that he died without children, and the rule is well settled that where one, being only a collateral relative, claims as an heir at law, he is [853] bound to plead that all the lines of descent which would have the right to claim before him are exhausted.” (See pp. 360, 361.) After citing authorities the court immediately continues: £: Nothing of this kind is set out in the complaint, and for that reason it is fatally defective.” A dictum is an opinion expressed by the court which, not being necessarily involved in a case, lacks the force of an adjudication. (1 Bouvier’s Law Dict. [Rawle’s Rev.] 567.) In Railroad Companies v. Schutte (103 U. S. 118,143) it was held that a decision of the court on a certain point, when properly presented and decided in the regular course of the consideration, is not dictum because something else was found in 'the end which disposed of the whole matter. If I am right in this contention, then in case the plaintiffs plead over, they may have opportunity to recast their complaint so as to meet other various criticisms made upon it, of which some at least are quite serious, but none, in my opinion, may not be cured by an amended pleading. There remains, then, at this stage of the case to consider only such further objections as challenge the very right of maintenance of this suit. I think that under Read v. Williams (125 N. Y. 560) such an action lies. The objection that under the terms of the will the plaintiffs, even if the proper parties, with proper pleading, have no such interest as would warrant any present suit, was held good in a similar case in Kalish v. Kalish (45 App. Div. 528). But the case, while affirmed, was reversed upon that point. (Kalish v. Kalish, 166 N. Y. 371.) The objection that the plaintiffs not named in the act of 1860 have no right to assert the violation of the statute is met by Robb v. Washington & Jefferson College (103 App. Div. 345; affd., 185 N. Y. 485). The interlocutory judgment must be reversed, with costs to both appellants, and the demurrer sustained, with leave to the plaintiffs to plead over upon the usual terms. ELirschberg, P. L, Woodward and Hooker, JJ., concurred; Gay nor, J., read for affirmance.