Appeal from the Circuit Court of Adams County; the Hon. FRED
W. REITHER, Judge, presiding. Affirmed.
A complaint in equity was filed on August 28, 1965, by Robert Lease and Robert Nelson Lewton, to set aside the Last Will and Testament and a Codicil thereto of Alice C. Lease, Deceased, naming the Illinois State Bank of Quincy as principal defendant, alleging undue influence by the bank and its agents and a lack of testamentary capacity by deceased. Also named as nominal defendants were a number of heirs and Alva A. Lewton, a tenant farmer of the deceased.
For an understanding of the issues involved we summarize the salient portions of the record. Alice C. Lease died on January 10, 1965, leaving her surviving Robert E. Lease, her brother, Robert Nelson Lewton, a nephew, and her sisters, Daisy Lease, Lois Lewton and Ferne Hull.
The will was drawn on August 18, 1952, and the codicil was executed on December 6, 1963.
Small bequests of personal belongings were made to each of the heirs and the balance of the estate, consisting of a 210-acre farm was devised one-quarter to Alva Lewton, a tenant on the farm since 1945, and three-quarters to Daisy Lease, for their respective lives. Upon the death of either life tenant that portion was to go to the survivor. Upon the death of both life tenants, the will gave the remainder to St. Joseph's Hospital for the Chronically Ill, but the codicil changed this beneficiary to the Holy Redeemer Church of Barry, Illinois.
Before the complaint was filed Daisy Lease died, leaving Alva Lewton as the sole life tenant.
On the date of trial, November 15, 1967, plaintiffs sought to file an amendment to the complaint by making Alva Lewton the principal defendant, alleging an agency, a fiduciary relationship and undue influence by Mr. Lewton. The trial court denied this motion. During the trial the court restricted the testimony of certain witnesses and at the conclusion of plaintiffs' evidence again refused to permit the amendment to the complaint and granted a motion for directed verdict for the defendants.
This appeal follows, seeking a reversal of the trial court's decisions and requesting that the case be remanded for a new trial.
Amendment of pleadings is governed by section 46 of the Civil Practice Act (Ill Rev Stats 1967, c 110) which reads in part:
"(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or fenses, . . . .
"(3) A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just."
Illinois has long permitted a policy of permitting liberal amendment of pleadings. Over a century ago the Illinois Supreme Court stated that amendments should be freely allowed to preserve rights and advance justice, as long as such amendments do not work to the surprise or prejudice of the opposite party. Miller v. Metzger, 16 Ill. 390, 6 Peck 390 (1855). More recently the Court stated that section 46 is to be construed liberally "to the end that controversies may be speedily and finally determined" . . . and real justice attained. Thompson v. People, 410 Ill. 256, 102 N.E.2d 315.
Despite this liberal policy, parties do not have an absolute right to amend their pleadings. Amendments are only permitted at the trial court's discretion. This point has particular significance in deciding the appeal of the case under consideration because our courts have had two divergent policies a policy favoring liberal amendments of pleadings and a policy against unduly restricting a trial judge in matters falling generally within his discretion. The determining factor for overruling a judge's disallowance of a motion to amend must be found in a "clear abuse of his ...