99 N.Y.S. 93 | N.Y. App. Div. | 1906
Lead Opinion
The plaintiffs, as executors and trustees under the will of Thomas W. Evans, deceased, brought this action to have the will and a compromise agreement construed in relation to certain land_s in the city of New York and for instructions as to their duties in respect to a sale of the whole or a part of such lands, and the disposition of the proceeds derived therefrom if a sale be directed. • The testator died in the city of Paris,. France, on the 14th of November, 1897, leaving him surviving as his only relatives a brother and his
By the 17th article of his. will' he provided that if the 16th article failed,, then such residuary- estate should go to the executors, he expressing the belief that they would “ voluntarily carry out all the wishes and requests' expressed in this instrument in its éntirety, although not obliged to do so under the law.”.
Immediately following the death of Dr. Evans proceedings were taken by the executors named in his will for its probate in France, Pennsylvania and Hew York, which, were opposed in each jurisdiction by his heirs at law and next' of kin. . At the time of his death there was no corporation known as the Thomas W. Evans Museum and Institute Society, but pending the steps taken for the probate of his will, certain officials and citizens of the city, of Philadelphia instituted a proceeding to’ incorporate such society and before they had finally succeeded in this respect they were restrained pending the determination of an application made by the executors to annul
■ The agreement was carried out by the parties to it except that the heirs at law have only been paid out of the residuary estate $100,000, and there is now due them, according to the terms of the. agreement, the balance of $700,000. The Thomas W. Evans Museum and Institute Society was incorporated under the original proceedings instituted in the State of Pennsylvania on the 21st of December, 1900. Intermediate its incorporation and the 24tli of February, 1904—-when this action was commenced — very little, if anything, seems to have been done by the executors or the society to carry out the object of the testator with reference to the museum, and society which he sought to found, or to place in possession of such corporation or its trustees the residuary estate, or any part of it. On
After the service of the society’s answer, and just prior to the . time, the- action was to be moved for trial,-in January, 1906 — new . attorneys having in the meantime been substituted for-the society — an application was made for leave to amend the answer by inserting appropriate allegations necessary .to test the validity of the compromise agreement -in so" far as if provided for the payment of the $800,000 out of the' residuary estate, and also enlarging, the prayer for relief by-requiring the executors to render a geu'eval account and turn over to the society the entire residuary estate. The - motion to amend, was denied and the society has appealed.
" -. As a general proposition a party to an action might to; be permitted to put Iris pleadings in such • shape as will enable him to- raise and have determined' at the trial every,question affecting his interest involved in the subject-matter of the 'litigation, and to this énd great powerxis by statute'conferred upon the court to amend any " process, pleading or proceeding, either upon the trial) or at any other stage of the action, before or after judgment. (See Code Civ. Proc. ,. § 723.) The power thus. conferred is usually, as it ought" to be, freely exercised in order that justice may. be doné between the parties. Merely - technical rules of pleading ho -longer control, and- the merits of an action and the rights of parties are now. rarely determined upon affidavits. When, therefore, an application to .amend is made in advance of a trial, and the court can see there is something substantial in the proposed amendment—that it is niade 'in good faith —it is granted unless injustice will thereby he done to the adverse party. The party applying .for the amendment" must-move promptly, lest Ms own laches defeat the application and he will not be permitted to amend if, in the meantime, .the adverse party, by reason o.f his delay, has so acted that it Would be unjust and inequitable to permit the party applying to change his position; in other words, he is estopped, either by lapse of time or his own acts, from obtaining the amendment. .
If this rule be applied to the acts of the society it at once becomes apparent that it is not estopped from asserting what it believes to be its interest, because it has done nothing but remain silent, and its silence does not appear to' have been acted upon by any of the other parties to the action to their prejudice.
Dr. Evans died nearly nine years ago, and it is now almost six years since the compromise agreement was made, during which time the executors have been in possession of the.entire residuary estate, and yet not a dollar, so far as appears, has yet been devoted to the founding of the society and institute, which was the principal object of the testator’s bounty. Under such circumstances it would'not only seem to be the right, but the duty of the trustees of the corpo
Whether this''lie so or not, the''Corporation should be permitted, upon the fact's here presented, to so amend its answer as to raise and have determined at the trial such questions as its counsel may' advise in order to properly protect its interest. The court ought not to assume to dispose of such questions upon affidavits, and that is what has been done here.
• In reaching this conclusion ,1 do not mean to be understood as expressing any opinion as to the merits or legal effect of the amended answer when interposed.
For these reasons I think the order appealed from should be reversed, with ten dollars costs and disbursements, arid the motion granted on payment by the corporation of all costs of the action to the time of the amendment to each respondent separately appearing and presenting briefs on this appeal.
O’Brien, P, J., and Ingraham, , J., concurred; Clarke and Houghton, JJ., dissented.
Dissenting Opinion
. It. seems to me that gross injustice will be done to the executors, and to the heirs at law. and next of kin of the deceased by permitting the defendant museum at this late day to amend its answer by setting up the invalidity of the compromise agreement. Acting under that agreement the heirs and next of kin withdrew their objections to the probate of the will and waived their claims that its provisions were invalid and the executors paid $100,000 of the $800,000 agreed. ‘ The heirs and'next of kin cannot be restored to the position they Occupied when the agreement was entered into and: acted upon for it is now too late to contest probate or to bring an action to set the probate aside and very soon the six-year Statute of Limitations will have run against'the claim of the executors to recover hack the $100,000 which they paid, and very likely will have fully run before it shall be finally determined whether the agreement is good or bad. . ■ /
Clarke, J., concurred.
-Order reversed, with ten dollars costs and disbursements, and motion granted on terms stated in opinion. Order file$L