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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
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 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said will and codicils, save as such will is revoked or altered by said codicils, and as some of the said codicils have been revoked or altered by some or one of such subsequent codicils.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 surro
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 $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
aforesaid, prays for a construction by the court of said will and codicils, and the trusts therein contained, that said will and codicils be established, and said trusts be performed and carried into execution by and under the direction of this court; that an account may be taken of the said testatrix's personal estate and effects not specifically bequeathed, and of her funeral expenses and debts, and of the legacies and annuities bequeathed by the said will and codicils, the plaintiff being ready and hereby offering to account for all such parts of the said personal estate as have been possessed by him, and that by the constructions of said will and codicils, it may be adjudged that the said personal estate not specifically bequeathed, be applied in payment of the said funeral expenses, debts and annuities, in a due course of administration, and that the clear residue (if any) of the said personal estate, be ascertained and paid to the said defendant, E. G., in her own right; and in case it shall appear that said personal estate not specifically bequeathed, is not sufficient for payment of said funeral expenses, debts, legacies and annuities, or that any parts thereof are not payable out of said personal estate, then that proper directions may be given in payment of such deficiency, or of such parts thereof as are not payable out of the said personal estate, according to the trusts of the said term of years vested in the plaintiff, as aforesaid, and that an account be taken of the rents and profits of the said real estates comprised in said term received by, or come to the hands of the plaintiff'; and that the same may be applied according to the trusts of the said term; and that proper directions be given by the court touching the carrying on of said trade or business, also touching the effects specifically bequeathed by the said will and codicils, as heir-looms, and that proper inventories may be made thereof; and that a suitable person be appointed by the court, to receive the rents and profits of the said real estates devised by the codicil of the day of .; or for such other or further relief, &c.
By an infant devisee and cestui qui trust, by his guardian,
against executors, to have trusts in a will carried into execution, and for an accounting.'
Title of the Cause.
The plaintiff, Henry A. Tallmadge, an infant under the age of twenty-one years, to wit, of the age of nine years and upwards, by Joseph Blunt, his guardian, complains of the defendants :
That Benjamin Tallmadge, late of the town and county of Litchfield, state of Connecticut, deceased, duly made
This precedent is adapted to the Code, from a bill filed in the late Court of Chancery, in the case of Henry A. Tallmadge, an infant, by his next friend, vs. Henry F. Tallmadge and others, argued in the Court of Appeals, October 11th, 1850. The executors, who are trustees under the will, and the persons claiming an interest in the trust fund are the parties defendants.
2 It is held by the General Term of the Seventh District, that this allegation is not sufficient, but that the complaint must show, by proper averments, the due appointment of the guardian, by the court or a judge. (Hulbert, an infant, v. Young, 13 How., 413.) The common practice has been otherwise. See note, ante, page 46. The safer course, is, undoubtedly, that indicated in the decision referred to, namely, to set out the time and manner of appointment of the guardian. A complaint so drawn, will be found in a subsequent form, in the case of a complaint, by an infant, for a divorce, on account of nonage.