day of

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 application thereof.

Wherefore the plaintiffs demand judgment against the defendants, that an account may be taken of all and sin

gular, 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.]

(No. 40.)

By an executor, &c., to carry the trusts of a will into execution, and asking directions from the court in regard to carrying out the same.

Title of the Cause.1

The complaint of the above named plaintiff, executor, &c., of the will and codicils of M. S., late of

1 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.

deceased, and a trustee, legatee and devisee in said will and codicils, respectfully shows to this court:

That the said M. S., at the several times of making her will and codicils, hereinafter mentioned, and at the time of her death, was seized, in fee simple, of divers lands and tenements, of considerable yearly value, in the several counties of C. and D., and being so seized and, also, possessed of considerable personal estate, the said M. S., on or about the day of -, made her last will and testament in writing, duly executed and published for devising real estate according to law, and thereby, after giving divers pecuniary and specific legacies and divers annuities, the said testator gave and devised to the plaintiff, all, &c., [stating the substance of the will; or if the pleader choose, instead of the above say, "a copy of which will is hereto annexed, and forms part of this complaint," and so, also, in regard to each of the codicils.]

That the said testatrix afterwards, on or about the ▬▬▬ day of ———————, made a codicil, &c., &c., [similar allegations in regard to each codicil, as the above in regard to making the will.]

And the plaintiff further alleges, that the said testatrix, M. S., departed this life on or about the day of without having revoked her said will and codicils, save as such will is revoked or altered by said codicils, and as some of the said codicils have been revoked or altered by some or one of such subsequent codicils.

That the said testatrix, at her death, left the said defendants, E. G., formerly E. L., and B. S., her cousins and coheiresses at law. [naming the defendants.]

That the plaintiff being, by the said codicil of the day of, appointed sole executor of the said will and codicils, hath, since the death of the said testatrix, duly proved the said will and codicils, as a will and codicils

relating to both real and personal estate, before the surrogate of county, and taken upon himself the execution thereof, and the same have been duly recorded in the office of said surrogate; that said testatrix, at the time of her death, was possessed of, or interested in, and entitled to considerable personal estate and effects, and (among other things,) she was entitled to an eighth share and interest in a certain copartnership, trade, or business of a tin blower and tin melter, which was carried on by the said testatrix and certain other persons, at

under the firm of S. F. & Co., in which the said testatrix had some share of the capital, and which was a profitable business; and by the articles of copartnership, under which the said business was carried on, the plaintiff in this action, as said testatrix's personal representative, is now entitled to be concerned in such share of the said business, for the benefit of the said testatrix's estate, and that she was also possessed of, and entitled to, certain leasehold estates, for the remainder of certain terms of years, determinable on lives.

And the plaintiff further states, that he hath possessed himself of some parts of the said testatrix's personal estate, and hath discharged her funeral expenses, and some of her debts and legacies, and hath also, so far as he hath been able, entered into possession of the said testatrix's real estates, which she was seized of, or entitled to, at the times when she made her said will and codicils, and which consisted of, &c., [generally describing it, ] being, altogether, of the yearly value of about $besides the said mansion house and premises, which, by the codicil of day of , are devised to the plaintiff for his own use and benefit; and the plaintiff, as executor and trustee, as aforesaid, is desirous of applying the said testatrix's personal estate and effects, (not specially be

queathed,) in payment of the said testatrix's debts, and of her legacies now remaining unpaid, and of the annuities bequeathed by the said will and codicils, if in the opinion of the court, the true construction of the trusts in said will and codicil, so require or allow.

But the said defendants, J. G. and E., his wife, allege and claim, that under the provisions of said will and codicils, they are entitled to the residue of the said testatrix's personal estate, not specially bequeathed, including all her leasehold estates, after payment of her funeral expenses and debts, and that the said personal estate is not subject to the payment of the several legacies and annuities given by the said testatrix's will and codicils, but is exempt therefrom, and that all the said legacies and annuities ought to be paid out of the rents and profits of the said testatrix's real estates; a claim which the plaintiff controverts and denies, and submits to this honorable court.

And the said J. G. and E., his wife, are desirous that the plaintiff, as the personal representative of the said testatrix, should, by means of the said testatrix's share of the capital employed in the said trade or business, carry on the said trade or business for the benefit of them, and the said testatrix's estate, which the plaintiff cannot safely do without the direction of this court.

And under the circumstances aforesaid, the plaintiff is unable to administer the said personal estate, and to execute the trusts of said real estate, without a construction of said will and codicils, and the directions of this court. And the defendants are desirous of having a suitable person appointed by this court to receive the rents and profits of the said real estate devised as aforesaid by the said codicil of the day of to which this plaintiff

has no objection.

Wherefore the plaintiff, executor and trustee, &c., as