6 Paige Ch. 46 | New York Court of Chancery | 1836
I do not see any thing in the conduct of Bowen, in instituting this suit in the name of the infant as one of the complainants, which ought to preclude him from having the amendment asked for in this case, if it was proper in other respects; although at the time of filing the bill, he was aware of the fact that his wife was
I am inclined to think there is no foundation for the supposition that the bill, as amended, would be liable to the objection that Mrs. Idley was not a "proper party thereto. It is true she has no interest in supporting the last will in preference to the first, since her voluntary offer to maintain and educate the infant. But she is charged in the bill with having fraudulently destroyed the first will, which the complainants are seeking to establish; and she appears to be a necessary party to a suit by Bowen and his wife to establish that will as against the heir at law of the testator. If the devisee was in possession, and the complainants were the heirs at law, and were seeking to set aside the last will on the ground of the testator’s incapacity, or that it was executed under improper influence, and thus to leave the estate to descend to them as in case of intestacy, it would be a valid objection, upon demurrer to either the original or the amended bill, that the complainants had a vy” boi remedy at law, and that this court had no jurisdir statutes, had jurisdicü of real estate, which w either during the life of his knowledge or consent ’ the cane. (Colton v. Ross, 2 Paige's Rep. 396.) court, even before the revised 'it brought to establish a will d been fraudulently destroyed, -.estator or afterwards, without -- r where he was mentally inea
From this view of the case it will be seen, however, that the amendment is not a mere matter of form as regards Mrs. Idley. For if the wife of the complainant Bowen is not an heir at law, the complainants can only succeed by establishing the validity of the first will and by showing that it has not been revoked or destroyed by the testator, or by his direction: even if he was incompetent to make the will of May 1825. Mrs. Idley has the right, therefore, if the amendment is allowed, to put in an answer, or at least a further answer, to the amended bill, for the purpose of setting up such further defence to the same as she may think .^proper to make ; and also to introduce evidence to establish any allegations which may be put in issue by the replication to such further answer. But I can see no valid objection to permitting the testimony which has been already taken between these parties to stand, and to be used on the hearing, as between Bowen and wife and Mrs. Idley ; giving to either the right tore-examine any of the witnesses if necessary. Where the complainant amends his bill after answer, it is a matter of right for the defendant to put in a new or further answer to the amended bill, unless it appears that the amendment is a mere matter of form which cannot alter the rights of such defendant. But in such answer to an amended bill it is not allowable to repeat the allegations in the former answer, unless the grounds of the suit and the defence to the same are varied in substance ; as the original and supplemental answer constitute but one answer to the bill as amended. In Bosanquet v. Marsham, (4 Sim. Rep. 573,) the complainant amended his bill by merely adding a party, after a general demurrer had been overruled • and it was held that such amendment authorized the same party to put in a general demurrer to the amended bill. The vice chancellor said in that case, that after a defendant had answered a bill, any amendment, however trifling in the bill, authorized the defendant to put in another answer, and to make an entirely new defence. (See
There is, however, an insuperable objection to the allowance of the amendment in the present case, except by the consent of the defendant. And the only remedy of the complainants, unless such consent can be obtained, is by commencing de novo. Before any witnesses have been examined in a cause, the court will allow the complainant to withdraw his replication and amend, upon such terms, as to costs or otherwise, as may be equitable, upon any reasonable excuse shown for "not making the amendment sooner. But after the proofs are closed, and especially after the cause has been heard upon pleadings and proofs although no decree has been made therein, no other than mere formal amendments are allowed, and those only under very special circumstances. In that stage of a cause, if it becomes necessary to .add new parties who will have the right to examine witnesses in their defence, the proper course is to let the cause stand over, with liberty to the complainant to bring the new defendants before the court by supplemental bill. In this case the cause was heard on its merits, and the complainants’ counsel was at the hearing fully apprised of the objection that the infant’s interest was in favor of the last will, if either was to be sustained, and of course that her interest was adverse to that of the other complainant in the prosecution of this suit. And if a mere formal amendment was required to place the parties rectus in curia, and without the necessity of taking any further testimony, that was the proper time to apply for leave to make such an amendment. The complainants, however, thought proper to proceed to a decree without asking for an amendment, or even for a reference to ascertain whether it was for the interest of the infant that the suit should be prosecuted in her name as a complainant. And the decree
That decree of the vice chancellor having been affirmed by the court of dernier resort, without any authority reserved to this court to open or modify the same, the court must proceed and cany it into effect, unless it is opened by the consent of the parties, or the bill is dismissed because it cannot be further prosecuted in the name of the infant against her interest. The reservation of "a right to any person to apply in behalf of the infant for a reference, and to stay a suit improperly prosecuted in her name against her interest, was not a reservation of a right to the other complainants to amend their bill and to open the decretal order : which order had been affirmed by the chancellor on appeal, so far as the rights of the defendant were concerned. If a suit is improperly brought in the name of an infant, and he elects to abandon it when he arrives at full age, or the court elects for him upon the report of a master during his minority, the proper course is to dismiss the bill with costs, to be paid by the next friend or person who has improperly prosecuted the suit in the name of the infant. (See Waring v. Crane, 2 Paige’s Rep. 80.) The decree of the vice chancellor, allowing this amendment, and precluding the defendant from putting in a further answer, to enable her to make a further defence to the new case as against her which will be presented by the proposed amendments, must therefore be reversed, with costs.
It is very desirable, however, that these parties should be saved the expense, if possible, of going over again with the testimony already taken; and this difficulty may be avoided by a proper concession of both parties. I shall therefore, under the general prayer of the petition which was presezited to the vice chancellor, permit the complainants to dismiss their bill without costs, and to proceed de novo, unless the defendant will stipulate that the decretal order which has been confirmed ozi appeal, may be opened, and the proposed amendments made upozi the payment of costs as pz’oposed in the oz’der of the vice chancellor; reserving to the defendant the right to put in a further or