
    Charles F. Muller and Others, as Executors, etc., of Thomas W. Evans, Deceased, Respondents, v. The City of Philadelphia and Others, Defendants, Impleaded with The Thomas W. Evans Museum and Institute Society, Appellant.
    First Department,
    May 18, 1906.
    Practice — amendment—when corporation should ¡be allowed to amend answer to contest validity of agreement made in its behalf—modern policy as to allowance of' amendment.
    "■ When in consideration of the withdrawal of a contest tó a will making bequests to a municipal museum not yet. .incorporated the heirs and, the .authorities of the city where the museum" is to he located enter into an agreement hy which . tibe heirs are to be paid a sum stated-.out of the residuary estate, which under the will would go to the museum, in an action .brought by the executors to construe such agreement, the museum when incorporated should be'állowed to amend its answer so as to set out that the agreement was invalid, even though part of the sum due thereunder had been paid to the heirs, and nearly six years have elapsed since the signing of the agreement, and although it is claimed the first answer served admitted the validity of the agreement.
    It is a general rule that a party , ought to be permitted to put his pleadings in form to enable him to raise and have determined every question affecting his interest, and to this end great' power is conferred upon the court to allow amendments on trial, before or after judgment, or at any. other stage of the action. Technical rules no longer control and the merits of the action and the rights of the parties are now rarely determined upon affidavit.
    Laches or estoppel may be grounds for refusing the amendment, but when nothing has occurred either by lapse of time- or act of the applicant .which has changed the position of any other party to the action, and no injustice will be done, the amendment should be allowed.
    Houghton and Clabke, JJ., dissented, with opinion.
    Appeal by the defendant, the Thomas W. Evans Museum and Institute Society, 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 28tli day of February, 1906, denying said defendant’s motion for leave to amend its answer herein.
    
      Julien T. Davies, for the appellant.
    
      Alexander B. Crane, for the plaintiffs, respondents.
    
      Frederic R. Coudert, for the respondents W. W. Evans and others.
    
      William L. Turner, for the respondent Valois, as executor and trustee.
    
      J. Noble Hayes, for the respondents Enos and others.
   McLaughlin, J.:

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 descendants and the descendants of two deceased sisters. . He left an estate consisting of real and personal property of the estimated value of upwards of '$4,000,000, located in the cities of Paris, Philadelphia and Hew .York. By his will he gave specific legacies amounting in, the aggregate to upwards of. $250,000 to his relatives,, directed his executors to erect a monument-in his native city at a .cost of riot less than $100,000 nor more than $200,000, and the residue of his estate he gave by the 16th article of his will for the purpose of founding in the city of Philadelphia a museum and institute: (1) To the Thomas W..Evans Museum and,Institute Society, “a corporation able to receive, hold and transfer property in France arid in the State of Pennsylvania, to he created and incorporated if ■ possible before my death under the laws of the State of Pennsylvania by preference, or under the laws of any, other State of- the. United States of America, where such incorporation m^y be made, absolutely and forevery. under the reserves above mentioned and. upon the- charges, conditions and obligations imposed in this-. Article if for any reason said corporation -could not take, then (2). he gave such residuary estate to the persons named as executors, of whom there were six, two being jieirs ánd legatees; if they could not take, then (3)- to the city of Philadelphia, and, if it could not take, then (4) to the-State of Pennsylvania, the last three all being subject to the- terms and conditions expressed in' the first subdivision-.-

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 same. This was the situation on the 25th of June, 1900, when the executors, as parties of the first part, the heirs at law and next of kin of Mr. Evans, as parties of the second part, and the city, of Philadelphia, acting through its mayor and corporation counsel, as parties of the third part, entered into an agreement under their respective seals which, .after reciting the pending litigation, provided, among other things, that the heirs at law should withdraw all opposition to.and consent that the will be probated and letters testamentary be issued to the executors and trustees named therein, and should assign, transfer and set oyer to them all their right, title and interest to such estate, except certain pecuniary legacies and in addition thereto the sum of $800,000, in consideration of the executors paying to them (in addition to _the specific legacies hiamed in the will) the sum of $800,000 out of the residuary estate — $100,000 of which was to be paid within three months, and the remainder within a year thereafter or as soon as the same could be obtained from the estate either in Europe or America; that the city of Philadelphia or the persons acting in its behalf should withdraw all opposition to the administration of said estate by the executors ; that they should convert the estate into money as soon as it could be legally done without prejudice, thereto, and after making all proper deductions, pay the balance.to the executors of Thomas W. Evans, deceased, in Pennsylvania to there be distributed under order of the court, and the executors should withdraw their opposition to the incorporation of the Thomas W. Evans Museum and Institute. Society. . ' ,

■ 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 the 18th of April, 1904, the society served an answer to the complaint, by which, according to the contention of the heirs at law of Mr. E vans, the validity of the compromise agreement referred to was admitted, which fact,. however, was vigorously denied by the attorney who drew the answer — he deposing that its intent was to deny that-the society was bound- by such agreement. •

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. . This application, it is apparent, was made in good faith, and if the contention of the heirs at law be correct-—that the original answer admitted the compromise agreement'—the proposed amendment is substantial. The society in its original answer could have pleaded every fact which it sought to plead by the amendment, lío thing has since occurred, either by the lapse of time or the act of the society, which has changed the position of any other party to the action; therefore; 'injustice will not be done by granting it. The compromise agreement was entered into; the $100,000 paid under it; opposition to the probate of the will .withdrawn, and the release given by the heirs -at law before the society came into existence. The situation and position of the parties now, so far as their legal rights are "concerned, are precisely what they were when the original answer was served, and nothing has transpired which estops the society from raising by answer what it could have raised then. To constitute an estoppel in pais it must appear, says Judge Mullin in Brown v. Bowen (30 N. Y. 519, 541), cited with, approval and adopted in Ackerman v. True (175 id. 363): “ 1st. That the person sought to be estopped has made an admission or done an act with the intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, inconsistent with the evidence he proposed to give, or the title he proposes to set up. 2d. That the other party has acted upon, or been influenced by such act or declaration. 3d. That the party will be prejudiced by allowing the truth of the admission to be disproved.”

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•ration which has been incorporated fpr the purpose of carrying out his intent, to take some steps, either by. the institution of a proceeding or the interposition of an answer, to compel the persons who have possession of the property to turn it over to the corporation or devote it to the purpose which the testator intended.

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.

Houghton, J. (dissenting);

. 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. . ■ /

At the best the executors would find themselves in an embarrassing position if they were to sue to recover back this money before such final determination, for it might be claimed the payment was a voluntary one or that they were estopped from asserting the invalidity of the agreement, or, if there was any mistake, that it was one of law only. It is true that amendments should be liberally allowed in furtherance of justice, but it is equally true that they should not be allowed where manifest injustice will be done. If the museum by its original answer put in issue the validity of the compromise agreement the parties must abide by the issue thus framed. If it did not, it should not be allowed to do so by amendment at this time when the rights of the parties have so materially changed that they cannot be restored to their former positions if the agreement shall be declared invalid and when, if such shall be the result, some of these rights will, be wholly lost. I think the order refusing to allow the amendment" was right and that it should be affirmed.

Clarke, J., concurred.

-Order reversed, with ten dollars costs and disbursements, and motion granted on terms stated in opinion. Order file$L  