Frost v. Courtis

• Decision Date: 06 January 1899
• Citation: 52 N.E. 515,172 Mass. 401
• Parties: FROST v. COURTIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 401

52 N.E. 515

FROST v. COURTIS et al.

Supreme Judicial Court of Massachusetts, Essex.

January 6, 1899

COUNSEL

S.H. Tyng and G.C. Abbott, for petitioner.

H.P Moulton, for respondents.

OPINION

HAMMOND J.

Francis Courtis, being seised of the two parcels of real estate named in the petition, namely, a house and land on Back street, in Marblehead, and Baker's Island, in Salem Harbor, died testate, June 15, 1870, leaving a widow, Jane Courtis, the respondent; a son, Francis Mason Courtis; and two grandchildren, who were children of a deceased son; the petitioner, Rebecca C. Frost, being one of the grandchildren. When the case was originally tried in the superior court, the respondent claimed as a part of her defense that by the death of the testator's son, Robert Harris Courtis, who died before the testator, the interest devised to Robert did not lapse, but went to the survivors named in the second clause of the will, namely, to the respondent and her son, Francis Mason Courtis; and upon this issue a verdict in the superior court was directed for the respondent, and the case was reported to this court under the following terms, namely "If the ruling was right, judgment is to be entered on the verdict; if the ruling was wrong, the verdict is to be set aside, and by agreement of parties a new trial granted to try the issue of title by prescription of the respondent Jane Courtis." This court decided that the devise to Robert Harris Courtis lapsed (see Frost v. Courtis, 167 Mass. 251, 45 N.E. 687), and by a rescript directed that, in accordance with the report, the verdict should be set aside, and the case should stand for trial on the issue whether the respondent Jane Courtis has acquired title by prescription. The case came on again for trial in the superior court, and in the course thereof the court allowed the defendants to amend the answer, setting up as a defense that the petitioner was estopped from claiming any interest in Baker's Island adverse to the respondent Morse, or any person claiming under him. To this the petitioner excepted. Her contention is that, it having been agreed by the parties in open court, at the time when the case was reported to this court as aforesaid, that a new trial, if granted, should be merely to try the issue of title by prescription of the respondent Jane Courtis, the court, as a matter of law, had no right to allow the amendment. The court ruled that it had the right, and, in the exercise of its discretion, allowed the amendment. On this part of the case the only question before us is whether the court had the power to allow the amendment. It is the policy of existing legislation and practice to allow amendments and pleadings to be made at any time before final judgment. Pub.St. c. 167, § 42, allowing amendments, has always been liberally construed, and there can be no doubt that the superior court had the power to allow the amendment, notwithstanding the terms of the report of the first trial and this court, and of the rescript thereon. Hutchinson v. Tucker, 124 Mass. 240; Gray v. Inhabitants of Everett, 163 Mass. 77, 39 N.E. 774; Terry v. Brightman, 133 Mass. 536; West v. Platt, 124 Mass. 353, and cases therein cited. The amendment raised no defense inconsistent with the question of law decided by this court. The trial of the case proceeded upon the defenses set up by the respondents, namely, prescription and estoppel, the latter defense applying only to...