The bill as originally framed proceeded upon the theory that the trusts created by the will of Amos D. Smith terminated at the expiration of ten years after his decease, and prayed for an account of the trust estate in the hands of the trustees. The court having found that said trusts did not expire at the end of ten years, and that so long as the trusts continued, Amey A. Smith, the widow of Amos D. Smith, was entitled to the annuity provided in the will, and that such annuity was superior to the rights of creditors, the complainants now seek to amend the bill so as to have their claims as creditors of the estate of Amos D. Smith decreed to be a first lien upon all the estate and property now remaining of which he died seized and possessed, and all the property taken and held in lieu of that which he held at his death, subject only to the claim of his widow for dower, if any such claim she has in addition to what she has already received out of the estate; or in the alternative that such claims shall be decreed *Page 263 to be a first lien upon that portion of the estate now remaining in the hands of the trustees, called by the testator the "trust estate," superior and in preference to any right or claim of said Amey A. Smith, or at all events second to her right or claim as the court may determine. The bill as proposed to be amended prays, among other things, that an account may be taken of what said widow has received from the estate of said Amos D. Smith, and that if she claims dower, the value of such at the decease of her husband may be ascertained, that an account may be taken of the amounts due the complainants and the other creditors of the deceased, and their lien being established, that the property may be sold, and the proceeds, after the payment of the costs, may be applied pro rata to the payment of creditors, that a receiver may be appointed for an injunction and for general relief.
It is manifest that the effect of the proposed amendments will be to make a new and different case from that which we have already heard and decided, in which nothing remains to be done but to enter a decree conformable to our decision. To grant the motion to amend as proposed is not permissible under the settled rules of equity practice. Amendments, the purpose of which is to bring before the court other parties to the controversy, or to strengthen, elucidate, or explain the case made by the original bill, or to put in issue some material fact which may directly or indirectly affect the case so made, however considerable, will be freely allowed at any stage of the proceeding, but where the effect of the amendment is to abandon the case originally made and to substitute a new and different one, and especially when it is not asked for until after the case has already been heard or even set down for a hearing, a different rule governs the discretion of the court. In such a case it will generally be found more consonant with justice to leave the complainant to bring a new suit, if so advised. Pratt v. Bacon, 10 Pick. 125, 128; Lambert v. Jones, 2 Patton Heath, Va. 144, 163;Walden v. Bodley, 14 Pet. 156, 160; Snead v. McCoull etal. 12 How. U.S. 407, 421; Shields et al. v. Barrow, 17 How. U.S. 130; Fenno v. Coulter, 14 Ark. 38, 44, 46; Carey v.Smith, 11 Ga. 539; Codington v. Mott, 14 N.J. Eq. 430; 1 Daniell Chanc. Plead. Prac. *425, note 5, *440.
The motion to amend is denied and dismissed. *Page 264
Decree entered April 30, 1892. "This cause came on to befurther heard at the above named term of said court and wasargued by counsel, and thereupon it is on consideration thereofordered, adjudged, and decreed:
"That the complainants are not entitled to any prior orsuperior rights to other creditors of the trust estates describedin the pleadings, by reason of their having obtained judgments asdescribed in the answer of the respondent trustees against thesaid Francis M. Smith and Charles Morris Smith in theirindividual capacities.
"That the complainants' petition for an injunctive orderagainst the respondent trustees, Francis M. Smith and CharlesMorris Smith, filed January 1, 1892, asking that they berestrained from making any sales of any part of the trust estatesheld by them under the will of Amos D. Smith is denied anddismissed.
"That the annuity to the widow, Amey A. Smith, given by thesaid Amos D. Smith by his will, and the needful expenditures forrepairs, insurance, and taxes on the estates given to the saidAmey A. Smith for her life by the said Amos D. Smith by his will,are a first lien on all the trust estates held by the saidFrancis M. Smith and Charles Morris Smith, as trustees under saidwill of Amos D. Smith.
"That the said trustees, Francis M. Smith and Charles MorrisSmith, have power and authority to make, at public or privatesale, sales of the trust estates held by them to pay saidannuity, and the repairs, insurance, and taxes on the real estategiven by the said Amos D. Smith by his will to the said Amey A.Smith for her life, and to pay repairs, insurance, and taxes, andother expenses incident to the proper care and management of saidtrust estate, and they are further directed to make sales as soonas practicable of such portions of the trust estate in theirhands as are unproductive and bring in no income.
"That the motion to amend the bill of complaint filed by thecomplainants March 23, 1892, is denied and dismissed."
Thomas C. Greene, James Tillinghast, Joseph C. Ely John T.Blodgett, for complainants.
Arnold Green, for the respondent trustees. *Page 265