The allegation of the complaint is that the testator died leaving the plaintiffs (excepting one who is named) and certain defendants *854who are named, “ as his only heirs at law and next of kin.” Under a demurrer that the complaint does not state facts sufficient to constitute a cause of action, it is claimed that this allegation is of a conclusion of law only, and is not an allegation of fact that the said. plaintiffs and defendants are the heirs at law and next of kin of the testator.
Tllere is a settled and familiar rule of pleading that an allegation of a conclusion of law in a pleading goes for nothing ; is a nullity. But an allegation of a conclusion of fact is another thing; the rule has nothing to do with it. An allegation of an ultimate fact to be proved has always sufficed in pleading although it be a mere conclusion from other facts which have to be proved. To plead such other facts is not permissible, for that would be pleading the evidence, of which only a novice would be guilty. For instance, in an action of ejectment a bare allegation that the plaintiff is the owner of the property, and entitled to the possession thereof, suffices. It is not necessary to allege the stages of heirship, of devise, of grant,' or the facts of adverse possession, upon which such ownership depends. In the same way an allegation that a decedent died leaving the plaintiff as his only heir at law suffices. It may be an allegation of a conclusion of fact, but that must not be confounded with the rule against allegations of conclusions of law. It is an allegation of the ultimate fact which has to be proved. The contention that it was necessary for the plaintiffs to trace their descent by allegations of fact of its source and stages in the complaint, arises out of momentarily mistaking a rule of evidence for a rule of pleading. In order to establish their heirship they have to prove their source and stages of descent on the tidal; but that does not imply that such facts have to be pleaded; there is no such rule of pleading.
It is only necessary (if even that be necessary) to turn to any standard encyclopsedia or text book on pleading to find that an allegation of an ultimate fact to be proved, although it be necessarily an allegation of a conclusion of fact, is good pleading; it is not an allegation of a conclusion of law. The dictum to the contrary in the case of Henriques v. Yale University (28 App. Div. 361) is evidently inadvertent and certainly does not control us. We should not by following the inadvertence of any judge or *855court change an ancient and logical rule of pleading. The change would be a radical disturbance ; it would reach many cases besides allegations of heirship. Por instance, in an action for the conversion of a chattel, in a case where the conversion has to be proved by evidence of a demand and refusal, the demand and refusal do not need to be alleged in the complaint. An allegation of the ultimate fact to be proved, i. e., conversion, suffices, although it is a deduction or conclusion from other facts, i. <?., demand and refusal, for it is not a conclusion of law but of fact. The said dictum cites Mitchell v. Thorne (134 N. Y. 536) and two other cases as authority. When we turn to the opinion in Mitchell v. Thorne we find the part on that head to be a dictum also; and when we examine the cases cited in both cases as authority we find that none of them were on a question of pleading, but that all of them were on a question of evidence and only asserted a rule of evidence. But even the dictum in Mitchell v. Thorne does not declare the rule of pleading asserted in the dictum in Henriques v. Yale University. It reveals, though obscurely, that there was no allegation that the plaintiffs were the only heirs of the collateral branches. But as the action was maintainable even though they were not such heirs, all said on that subject was necessarily obiter. The opinion in the case of Reiners v. Brandhorst (59 How. Pr. 91), holding as it does that an allegation of intestacy is necessary to an allegation of heirship, in face of the trite rule that intestacy, and not testacy, is the legal presumption, does not need to be discussed. It cites no authority and was an off-hand inadvertence.
Interlocutory judgment overruling demurrer reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiffs to plead over upon the usual terms.