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with interest from the ninth day of March, 1850, and the further sum of $606.93, with interest from the twelfth day of March, 1850, besides cost of this action.
By cestui que trust against trustees, for an accounting of
trust fund and payment of such arrears as shall be found due.
Title of the cause.
The plaintiff in this cause, complains and shows to this court that, prior to the 6th day of May, in the year 1844, she was entitled to a large real and personal estate ; that she was married to S. G., now deceased, by whom she had, at the time of his decease, [naming them, ] her children; that, prior to the 6th day of May, 1844, her said property had been conveyed to trustees; that the said conveyance having been judicially declared insufficient, the trustees, under said conveyance, to wit, J. V. and J. T., together with the plaintiff in this suit, and her said husband, united in a conveyance, to the defendants, bearing date the said 6th day of May, 1844, a copy of which said conveyance is hereto annexed, marked A, and to which the plaintiff refers as a part of this complaint; that the said defendants, the grantees in said deed, accepted the
A prayer that defendant account for the trust property and funds may properly be added (see, ante, No. 32), and, also, if a proper case be made, for an injunction and receiver.
· The conveyance referred to, is a deed of trust to the defendants.
said trust, and undertook to administer the same, and took possession of the property so conveyed.
And the plaintiff further states that, under and by virtue of the said conveyance, the said trustees received and became entitled, as such trustees, to property of the value of about $12,000; and it became and was the duty of the said trustees, to invest the same on good bonds and mortgages, or in the public stocks of this state or of the United States, and to make the same productive; and to pay over the income therefrom, as the same accrued, into the hands of the plaintiff, as the same should be collected, and no faster, and not in any event or manner to anticipate the said rents, income or profits, or any part thereof.1
And the said plaintiff, further states that the said de fendants, trustees as aforesaid, have not, nor has either of them, well and faithfully discharged their said trust; and she avers that, although they have received large sums of money, at different times, arising out of said funds and property, and the income thereof so received in trust, yet that they have not paid over the same to her, as required by said trust deed; and this plaintiff charges, that the said defendants have not invested the said trust property so as to make the same as productive as they could and ought to have done.
Wherefore the said plaintiff prays that the said defendants may be required to account with the plaintiff, or some person appointed by the court, on her behalf, and on such accounting, set forth a full statement of all the property, by
| This is the allegation of a mere legal duty, or conclusion of law, and is not, properly, a part of the complaint. It is, no doubt, such a redundancy as the court would strike out on motion.
? In the original complaint, the prayer was, that the defendants may be required to answer and set forth a full statement,” &c. • I have altered it as above. The defendants could not be required lo them and each of them, received under the said deed, and the manner in which the same has been invested ; and the income of the same, and the sums paid, or claimed to have been paid, and the date of such payments, and to whom paid; and whether any, and which, of such payments were made upon the order of this plaintiff; and whether the said defendants, or either of them, claim to be credited for sums paid to other persons; and for which fund receipts have been taken from the plaintiff, without any payment being actually made to her; and that the defendants may be required to account, not only for all such moneys as they heve received, but also for such as without wilful neglect, they might have received, on account of the said trust; and may be adjudged to pay to the plaintiff all such arrears as shall be found due to her, and that the said plaintiff may have such further relief, with costs, as shall be proper and just. VAN SCHAACK & OLCOTT,
Atty's for Plj:
For removal of trustees, one refusing to act and the other
insolvent, having applied the trust funds to his own use; praying an account, injunction and receiver, and reference to appoint new trustees.
Title of Cause.
The plaintiffs, complaining of the defendants, allege the following facts constituting their cause of action.
answer anything more than the facts set forth in the complaint, but the Court may require and order a full accounting, as demanded above.
That the plaintiffs, A. B. and C., his wife, of the one part, and the said defendants, R. P. and L. M., of the other part, on or about the
entered into a certain agreement, and made and executed a certain indenture under their hands and seals as follows: [ Set forth indenture creating the trust.]
That the said R. P. hath principally acted in the trusts of said indenture, and hath, by virtue thereof, and from time to time received considerable sums of money and other effects, but the said R. P. hath applied only a small part thereof upon the trusts of said indenture, and hath applied and converted the residue thereof to his own use; and, in particular, the said R. P. hath within a few months last past, received a considerable sum from the estate and effects of C. D., deceased, belonging to the said trust fund, the whole of which, as plaintiffs are informed and believe, he has applied to his own use.
That, as plaintiffs are also informed and believe, said R. P. hath since become insolvent, and has made a general assignment for the benefit of his creditors.
That said defendant, L. M., refuses to act in the matter of said trust, or to interfere in any manner with the doings of said R. P., or take any step whatever towards protecting and preserving said estate, or carrying out the said trusts.
That the plaintiffs, by themselves and their agents, have repeatedly applied to said defendants for an account of the said trust property, received and possessed by them, and of their application thereof, but said defendants have refused and still refuse to comply with said request, or to render any account of said trust property, or of their
Wherefore the plaintiffs demand judgment against the defendants, that an account may be taken of all and singular, the said trust property and effects which have, or, but for the wilful default or neglect of the said defendants, might have been received by them or either of them, or by any other person or persons, by their or either of their orders, or to their or either of their use, and also an account of their application thereof; and that the said defendants may respectively be adjudged to pay to such new trustees as may be appointed in their places, or in such manner as the court may direct, what shall appear to be due from them, or either of them, upon such account ; and that said defendants may be removed from being trustees under said indenture, and that it be referred to a referee, to be appointed by the court, to appoint two other persons to be trustees, under said indenture, in their place and stead; and that in the meantime some proper person may be appointed to receive and collect the said trust estate and effects; and that said defendants may be restrained from any further interference therewith ; or for such further, &c. : ( As in No. 1.]
By an executor, gr., to carry the trusts of a will into execu
tion, and asking directions from the court in regard to carrying out the same.
Title of the Cause.
The complaint of the above named plaintiff, executor, &c., of the will and codicils of M. S., late of
* All persons interested under the will and in the residuary estate, as next of kin and heirs at law, should be made parties defendants. If either of the parties are married women, their husbands should be joined.