Bowen v. Idley

Citations

• 6 Paige Ch. 46
• 1836 N.Y. LEXIS 299
• 1836 N.Y. Misc. LEXIS 92

Syllabus

<p>Where a bill is filed by the heirs at law against the devisee in possession, to set aside a will of real estate, on the ground of the testator’s incapacity, or that the devise was the result of undue influence, it will be a valid objection, upon demurrer to the bill, that the complainants have a perfect remedy at law, and that the court of chancery has no jurisdiction of the case.</p> <p>But devisees claiming the estate, or an interest therein, under a will which is alleged to have been fraudulently destroyed, may file a bill to establish' the will, and to set aside as invalid a subsequent will which purports to make a different disposition of the property. And in such suit, the devisee in the last will, as well as the heirs at law, are proper parties.</p> <p>Where a complainant amends his bill after answer, it is a matter of right for the defendant to put in a new or a further answer to the amended bill; except where the amendment is a mere matter of form which cannot vary the rights of the defendant. But, in the 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.</p> <p>Where a cause has been heard upon pleadings and proofs and a decretal order made therein, which order has been affirmed upon an appeal, the court below has no authority to allow the bill to be amended by striking out the name of one of the complainants, who is an infant, and making her a party defendant, without the consent of the original defendant in the suit.</p> <p>After the witnesses in a cause have been examined and the proofs closed, no amendment of the bill is allowed, except an amendment which is merely formal; and that under very special circumstances. In that stage of the suit, if it becomes necessary to add new parties who will have a right to examine witnesses in their defence, the proper course is to bring such new defendants before the court by a supplement