Fielding v. Fitzgerald , 130 Ill. 437 ( 1889 )

Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill by Ellen Fitzgerald, widow, and certain other persons as heirs-at-law, of Maurice Fitzgerald, deceased, to contest an instrument purporting to be his last will and testament. The hill was filed under the seventh section of chapter 148 of the Eevised Statutes of 1874, entitled “Wills,” and it is, among other things, therein alleged, that the said Maurice made his will and died testate, and that after his death, and “on the 14th day of September, 1888, the will was duly probated in the county court of Sangamon county, by William Fielding, the executor therein named; that the said Fielding entered into bond, and took upon himself the duties of such executor. ” Fielding and certain heirs-at.-law of the deceased are made defendants. Fielding filed an answer, wherein he “admits that Maurice Fitzgerald died at the time stated; that he made his will; that the will was duly probated, and that he was named and appointed executor, etc.; that he gave bond as required,” etc.

On the 7th of December, 1888, being one of the days of the November term of the court, upon motion of the proponents of the will, the cause was dismissed as to Ellen Fitzgerald and Charles Warner, and thereafter, on the same day, the issue presented by the bill and answer was tried by a jury, who returned a verdict that “the writing produced is not the last will and testament of Maurice Fitzgerald, deceased; ” and thereupon the proponents, by -their counsel, entered a motion for a new trial, which was overruled by the court. At the January term, 1889, of the court, proponents asked leave to amend their answer by adding thereto the following:

“Tour respondents further show, that before the filing of the bill in this cause, to-wit", on the 1st day of October, A. D. 1888, Ellen Fitzgerald, the widow of the said Maurice Fitzgerald, deceased, prosecuted and perfected an appeal from the said judgment of the county court in said cause, [i. e., probating said will,] to the circuit court of said county and State, which said appeal is still pending. And your respondents aver that said appeal, being pending as aforesaid, this honorable court .has no power or jurisdiction to hear and determine the allegations in said bill contained.”

It does not appear that this was accompanied by any affidavit or other evidence showing its truthfulness. The court overruled the motion.

There is no bill of exceptions, or certificate of evidence properly signed, in the record, and the only question, therefore, that we can consider, is, did the court err in refusing to allow the proposed amendment to be made to the answer ?

Waiving all question of the effect of the amendment if it had been allowed, we think the court ruled properly in not allowing the amendment to be made, for the reason that the motion was not accompanied by an affidavit, or any other evidence proving the truth of the matters of the proposed amendment. The answer filed admitted the truth of the allegation that the will had been duly probated. It would, to say the least, be hut trifling with the court to allow a party, as here, after proceeding to the trial of the issue presented by his answer, and being defeated therein, upon his mere request, unsupported by any evidence of mistake in his former answer, to take hack this admission and present a new issue,—that of whether the will has been probated, within the meaning of that word as used in the section of the statute under which the bill was filed. Such a practice would lead to oppression, and it is clearly beyond any discretion vested in the court. Maher v. Bull, Admx. 39 Ill. 531; Higgins v. Curtiss et al. 82 id. 28.

Finding no error in the record, the decree is affirmed.

Decree affirmed.