230 F. 514 | D. Conn. | 1916
These are motions to strike from the files the special replications to the separate answers of these defendants. Eouise T. Goodno, one of the plaintiffs, is the executrix of the last will and testament of Nathaniel S. Hotchkiss, deceased, a son of Henry O. Hotchkiss, deceased, who died, domiciled in New Haven, some time about 1884. The other plaintiff is William C. Goodno, the husband of the said Eouise T. Goodno.
Tlie bill is filed in the name of Eouise T. Goodno, as executrix of the last will and testament of said Nathaniel S. Hotchkiss, deceased, and individually in her own right. The defendants are Marie O. Hotchkiss, individually and as executrix of the last will and testament of- Mary A. E. Hotchkiss, widow of the said Henry O. Hotchkiss, and as administratrix of the estate of William H. Hotchkiss, deceased, a son of said Henry O. Hotchkiss, deceased, and Yale University.
The bill of complaint then prays that the agreement be given its true effect by this court, and also demands its enforcement pursuant to the provisions of the unsigned will as construed by the plaintiff, and the real intent of the parties as claimed by the plaintiff; that the amount of the share belonging to the estate of Nathaniel S. Hotchkiss, deceased, or due his heir at law, Louise T. Goodno, be ascertained, and that judgment be rendered for said amount against the defendants, who now hold or claim said property; that the mutual distribution of January 9, 1884, be set aside on the ground that it was made by mistake, and is unjust and inequitable and without consideration, and that it be corrected to conform to the true intent and meaning of the parties; „a. construction of the will of Mary A. F. Hotchkiss; an accounting from Marie O. Hotchkiss, as executrix; of all the property coming to her formerly belonging to the estate of Henry O. Hotchkiss, deceased, its earnings and increase from the date of the division; and accounting from said Marie O'. Hotchkiss individually for all moneys she has received from the principal of the estate of the said Henry O. Hotchkiss from the date of the mutual,agreement; and a judgment .that she be directed to pay said moneys into court for the purpose of apportioning the same under the agreement; an accounting from said Marie O. Hotchkiss, as administratrix of the estate of her brother, William H. Hotchkiss, deceased, for all moneys and proper
Separate answers have been filed to this bill of complaint by the defendants Marie O. Hotchkiss, individually and as executrix and administratrix, and by Yale University. These answers deny in part and admit in part the allegations of the complaint, and further allege the defenses of the statute of limitations and a former adjudication of the matters involved in the bill by the state courts of Connecticut in litigation to which all of the parties were either parties or privies. The answer of Marie O. Hotchkiss is denominated an “answer,” and is drawn in the form of an answer, save that' at the end she asks for certain orders, judgments, and decrees which the plaintiffs now strenuously contend are in the nature of affirmative relief, so that the answer is in effect a cross-bill or counterclaim. To these separate answers special replications have been filed, denying all matters affirmatively alleged, and setting forth other matters in confession and avoidance of the special defenses alleged in the answers.
Prior to 1842 special replications in equity had fallen into disuse, and they were not permitted, save by leave of the court in extraordinary cases. It was always required that new matter, or matter in response to allegations in the answer, should be set up by amendments to the bill, and could not be supplied by averments in the replication. Taylor et al. v. Benham, 5 How. 233, 12 L. Ed. 130; Wilson v. Stolly, 4 McLean, 272, Fed. Cas. No. 17,839; Coleman v. Martin, 6 Blatch. 291, Fed. Cas. No. 2,986; Vattier v. Hinde, 7 Pet. 252, 274, 8 L. Ed. 675; Story’s Equity Pleadings, §§ 676, 679, 878; Mitford & Tyler, Pleadings and Practice in Equity, 413; Swift’s Digest (Ed. 1822) vol. 2, p. 245.
In 1842 the Supreme Court promulgated equity rule 45 (see Dew-hurst’s Rules of Practice in United States Courts [2d Ed.] p. 394), providing that “no special replication to any answer shall be filed,” and that if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill he may have leave to amend the same, with or without the payment of costs, as the court or a judge thereof may in his discretion direct. This rule was construed by the Supreme Court as meaning that:
“A general replication is always sufficient to put in issue every material allegation of an answer or amended answer, unless the rules of pleading imperatively require an amendment of the bill.” Mr. Justice Harlan in Southern Pacific Railroad v. United States, 168 U. S. 1, 57, 18 Sup. Ct. 18, 30, 42 L. Ed. 355.
And in Mason, Adm’r, etc., v. Hartford, Providence & Fishkill R. Co. (C. C.) 10 Fed. 334, a special replication to a plea and demurrer
Rule 31 of the New Equity Rules promulgated by the Supreme Court in 1912 (198 Eed. xxvii, 115 C. C. A. xxvii), which is new and largely based on the English practice, has done away with all replications to answers by providing that:
“Unless the answer assert a set-off or counterclaim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff.”
The only difference between this rule and the English rule upon which it is based is that the latter is peremptory in all cases, while the former merely does not require a reply.
It is clear from an examination of the pleadings that the plaintiffs’ reply to the answer of Yale University is contrary to both the letter and the spirit of present rule 31, and contrary also to the long-established practice in equity as shown by the authorities cited, and the motion to strike it from the files is granted.
The conclusion therefore is that, in view of the form in which the defendant Marie O. Hotchkiss has filed her answer, the replication must stand. If, however, her attorney desires to amend his answer by striking out at its conclusion the prayers for affirmative relief within 10 days, the motion of Marie O. Hotchkiss to strike the replication from the files will be granted; otherwise, it will be denied.
Ordered accordingly.