Opinion
June Term, 1899.
Lemuel Skidmore, for the appellants. Barclay E.V. McCarty, for the respondent George F. Shrady.
Louis F. Doyle, for the respondents Van Kirk.
There is little or no dispute as to the facts. The only question between the parties is one relating to advancements. Upon the trial before the referee it was made to appear that John Shrady died intestate on the 10th of June, 1875, seized and possessed of nearly all the real estate mentioned and described in the complaint, and leaving him surviving the plaintiff, George F. Shrady, and the defendants, Jacob, John and William Shrady and Anna B. Van Kirk, his children and only heirs at law, all of whom were of full age. It was also made to appear that the parties received from their father between 1858 and the time of his death, certain sums of money mentioned in the answer of the defendants Shrady — but there was no evidence whatever showing or tending to show that the deceased intended the same, or any of it, as advancements, or that any of the parties should be held chargeable with the same as such on the final distribution and division of his estate. The only thing to justify even a suspicion, much less a belief, that the parties themselves understood that they were advancements, was interviews had between them many years after their father's death, and then only after a disagreement had arisen as to the management and division of the estate. Several conversations took place between some or all of the parties in the years 1895 and 1896, and in one of them it appears, according to the testimony of William Shrady, and it is not disputed, that the plaintiff, in the presence of the other heirs at law, said he would "be willing to pay his $7,000 if Anna would pay hers, and so did the rest," and "they agreed to that." Other interviews are detailed in the record, but they are substantially of the character of the one just referred to, or to the effect that some of the parties were trying to induce the plaintiff to account for the $7,000 which he had received, and if he would do that, then they were willing to account for what they had received. These interviews appear to be the origin of, and are the only basis for, the claim made by the defendants Shrady in their answer that the sums received by the different children from their father were, or should be, accounted for as advancements.
The conclusion reached by the referee, that the sums received by the defendants Shrady were advancements, and so intended by their father, is wholly unsupported by evidence, and he undoubtedly reached that conclusion solely from the allegations contained in their answer. But their answer was insufficient for that purpose. These allegations as to the advancements to them could not be regarded as an admission to that effect unless the entire allegations as to the advancements were accepted. The general rule is that, upon the trial of an action, where the plaintiff desires to avail himself of an admission or allegation contained in an answer as a pleading, he must accept the admission or allegation as an entirety; he cannot accept such portion of it as may be favorable to him and reject the remainder. ( Gildersleeve v. Landon, 73 N.Y. 609; Goodyear v. De La Vergne, 10 Hun, 537; Vanderbilt v. Schreyer, 21 id. 537; Young v. Katz, 22 App. Div. 546.) Recourse, therefore, to that allegation to bind any of the heirs at law would necessitate the same result as to the others. They were all included in the one allegation, and, if binding as to one, it is equally binding as to the others.
There is evidence to sustain the findings of the referee as to the moneys received by the defendant Van Kirk and by the plaintiff, but there is no evidence to sustain the findings as to the moneys received by the defendants Jacob, John and William Shrady, and, therefore, the judgment must be modified by striking therefrom the provision of it which determines that the sums received by them were advancements, for which they should be charged in the final division or distribution of the proceeds of the sale to be made, and, as thus modified, the judgment must be affirmed, with costs and disbursements of this appeal to the appellants, to be paid out of the proceeds of the sale.
PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment modified as directed in opinion, and, as modified, affirmed, with costs and disbursements of appeal to the appellants, to be paid out of the proceeds of the sale.