Peter Twamley, Respondent, v. Thomas A. McKennell, Individually and as Executor, etc., of Jane Thorburn, Deceased, Appellant, Impleaded with Elizabeth Ann Pullman and Others, Defendants

Peter Twamley, Respondent, v. Thomas A. McKennell, Individually and as Executor, etc., of Jane Thorburn, Deceased, Appellant, Impleaded with Elizabeth Ann Pullman and Others, Defendants. First Department, April 8, 1910. Pleading — reply — new matter contained in answer — breach of agreement between trustee and beneficiary. A nephew of a testatrix who left her surviving a son since deceased, suing under section 2653a.of the Code of Civil Procedure to determine the validity of the will, which left the residuary estate in trust, a certain portion of the income to be paid to the son'for life and upon his death the remainder to the trustee, will be required to reply to new matter set up in the answer of the trustee who alleges that after the death of the testatrix in consideration of the son’s consent to the probate of the will and his promise to refrain from the use of intoxicants and drugs, the trustee agreed tó pay him a larger sum from the trust estate and to transfer the corpus to him at' the, expiration of five years if he proved himself capable of properly using the same, which promise the son failed to keep although be accepted the benefits of the agreement up to the time of his death. ■ The objectof section 516 of the Code of Civil Procedure authorizing the court in its discretion to compel a plaintiff to reply to new matter contained in the answer is to narrow the issues and prevent surprise' at trial. Appeal by the defendant, Thomas A. McKennell, individually and as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the- clerk of the county of New York on the 22d day of December, 1909, denying the said defendant’s motion to require the plaintiff to reply to new matter set up in his answer. George H. Taylor, Jr., for the appellant. Nelson L. Keach, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: ' Some time prior to the 20th of October, 1908, one Jane Thorburn died, leaving a last will and testament and a codicil thereto, which were thereafter admitted to probate and letters testamentary issued to the executor therein named, the appellant. By the will the tes tatrix gave all of her property, both real and personal, to the appellant, a grandnephew, in trust to pay to her son, David Abbott Thor-burn, from the income derived therefrom, the sum of ten dollars per week during the term of his natural life, and upon his death the remainder to the appellant. The son was the' testatrix’s only heir at law and next of kin. He died intestate without issue on the 15th of August, 1909. The plaintiff is a nephew of the testatrix, and brings this action under section 2653a of the Code of Civil Procedure to determine the validity of the will and codicil. In the complaint lie alleges that he is “ one of the heirs at law and next of kin ” of the testatrix. The appellant sets up as a defense that after the death of the testatrix an agreement was entered iiito between the son and the appellant, whereby the former consented to the probate of the will and codicil of his mother, and the latter agreed to assign, transfer and set over all of the property of the testatrix, together with all the accumulations' derived therefrom, to the son at the expiration of five years after the admission of the will to probate, provided the son in the meantime had refrained from the use of intoxicating liquors and drugs, and proved himself capable of properly using and enjoying the estate. The agreement also provided that the appellant in the meantime would pay to the son, out of the income derived from the trust estate, the sum of fifteen dollare per week instead of ten, the amount named in the will. The answer further alleges that the son failed to observe the conditions of, the agreement, although he accepted the benefits thereunder and ratified the same up to the time of his death. After issue had been joined, the appellant moved that the plaintiff be compelled to reply to the affirmative defense referred to. The motion was denied and he appeals. I am of the opinion the motion should have been granted. The only possible interest which the plaintiff has in the estate of the testatrix is such as he may have derived through the son. ' When the testatrix died the plaintiff was not one of the heirs at law or next of kin. He would have had no standing to oppose the probate of her will, since the son was her only heir at law and next, of kin, and during his life plaintiff could not have maintained an action to determine the validity of the will, because he would not have been a “ person interested as devisee, legatee or otherwise * * * ” in liev will or ‘‘interested as heir at law, next of kin or otherwise” in her estate. ' If the agreement pleaded as a defense is valid, then the plaintiff has now no standing to maintain this action. The Code of Civil Procedure (§ 516) authorizes' the court, in its discretion, to compel a reply to new matter contained in an answer and set up as a defense by way of avoidance, and this discretion ought to be exercised where the new matter is of such a character as to indicate that, if true, it will constitute a complete defense to the action — the object being to narrow the issues to be tried and' prevent surprise at the trial. Here the new matter pleaded is of such a character as called .upon the court to exercise its discretion and require a reply. • If it be true that the plaintiff relies upon any facts by which he expects to avoid- the apparent sufficiency-of the defense there is no reason why he should not be required to state it. This will enable the appellant to properly prepare for, lessen the expense of, and prevent surprise at the trial. The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. ' ' Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.