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and published his last will and testament in writing, bearing date the 7th day of August, 1831, and thereby, amongst other things, gave and bequeathed, in words and figures, or to the purport and effect following, that is to say:

“Although I should rejoice to leave a due portion of my property to each of my children, to be entirely subject to their own several individual control, yet such has been the conduct of my son, George Washington, of late, that I feel it to be my bounden duty to make him an exception. I therefore appoint Henry F. Tallmadge and John P. Cushman, trustees, into whose hands shall be paid all the property that would fall to the share of the said George W. Tallmadge, by any provision of this will ; and I hereby direct my said trustees to take all the property of my said son, George W. Tallmadge, that may be apportioned to him, by this will, of every description and character, and place the same on interest, either in some safe public fund, or at private interest, well secured, the interest alone of which shall be appropriated for his support and that of his family. The principal shall be reserved for his child or children, to be paid over to them, equally, when they shall severally come of age, provided their father should not then be living; but if the said George W. Tallmadge should be then alive, the whole of said fund shall be kept on interest, to be applied for his use and benefit during his natural life. So, also, in the case of his death, if his present wife should survive him, then the one equal half of the same privileges and benefits shall be extended to her, as have been provided for him, during her continuance to be his widow; after which, the whole bequest shall be divided to the aforesaid children of George W. Tallmadge, as above provided. If only one child should survive them, then shall one half of the sum bequeathed to Washington, be paid over to said child; and if no child should survive them, then shall the whole bequest ,be for the equal benefit of all my surviving children,” as by the said will will more fully and at large appear.

That the said Benjamin Tallmadge departed this life on or about the month of March, 1835, without having altered or revoked his said will, which has been duly proven; and that the said defendants, John P. Cushman and Henry F. Tallmadge and Maria Tallmadge, were duly qualified as executors and executrix of the said will, and have taken upon themselves the execution thereof.

That the said executors and executrix, after the death of the said Benjamin, paid over to the said Henry F. Tallmadge and John P. Cushman, the share to which the said George was entitled, by virtue of the said will, but what amount the plaintiff is ignorant. That the said Henry F. Tallmadge and John P. Cushman have taken upon themselves the execution of the said trust, herein before more particularly set forth, and that the said Maria is now dead.

That the said George Washington departed this life on or about the 8th day of September, 1835, leaving Laura M., his widow, and the plaintiff, his only child, him surviving.

That the said Laura M., the widow of the said George Washington, on the 22d of August, 1839, married Van R. Humphrey, of the state of Ohio.

That upon the death of his father, the said George, the plaintiff, became entitled, and still continues to be entitled, pursuant to the directions of the said will, to the use and benefit of half of the estate bequeathed to the said George Washington.

This being the allegation of a mere conclusion of law, is not, in strictness, a proper allegation to be set forth in a pleading, and is certainly unnecessary.

That the income of the whole share, directed to be placed in the hands of the said John and Henry, was intended by the said testator for the support of the family of the said George, and that the plaintiff is entitled to the income of the remaining half part of the said estate bequeathed to the said George, since the marriage of the said Laura ; and being so entitled, he has caused application to be made to the said trustees, and has requested them to account with him for his separate share of the estate, and the moneys arising therefrom, which he is entitled to, pursuant to the directions contained in said last will; but that the said trustees express doubts as to the extent and nature of the interest to which he is entitled under the said will, and insist that, until a construction has been given to the said will by a court of equity, they will not account with him, nor pay over to him the amount to which he is entitled under the said will, and they still refuse to comply with his reasonable request, as in justice and equity they ought to have done.

That the children of the said Benjamin, living at the time of his death, were the said George, &c. (naming them], all of whom, as the plaintiff is informed and believes, claim some right to the property vested in the hands of the said John and Henry, as above set forth, or to some portion thereof.

Wherefore the plaintiff demands judgment, that the said defendants, trustees, &c., may be directed to perform and carry into effect the trust hereinbefore mentioned and contained in the said last will, according to the true meaning and intent thereof, and agreeably to the intent and meaning of the testator, and that a full and true account may be rendered by said defendants of all the estate and effects, of every kind, nature or quality whatever, which now are, or ever were, in the custody, possession or control of said defendants, under the said trust, and how the same is invested; and that the same may be secured for the benefit of the plaintiff, according to his rights and interests, pursuant to the trust in said will, and for such other, &c., [as in No. 1.]

(No. 42.)

Prayer of a complaint to compel executors who had renounced,

to carry the trusts of a will into execution, or if they declined, then praying appointment of new trustees to execute such trusts, demanding an accounting from the administrator, de bonis non, who had reserved the whole estate.

The plaintiff therefore prays the aid and the interposition of this court in the premises, and that it may be determined by its judgment or decree whether the said D. V. S., J. B. and T. H. are still trustees under said will, and authorized to carry the same into execution; and if it shall be adjudged that they are still such trustees, that they be directed to execute the provisions of the said will and codicils, and dispose of the said estate according to the charitable intent of the said testator; or if it shall be determined that the said D. V. S., J. B. and T. H. are not now such trustees, and are not authorized to execute the said trust, that then some suitable and proper persons may be appointed by this court to execute the said trusts, and carry the charitable intent of the said testator into full effect under its direction, and that they take possession of the said estate for that purpose ; and that the said J. P. B., as surviving administrator, with the will annexed, of the said W. B., deceased, be directed to render a full, true and just account of the said estate, and all the interest and accumulations thereon, and that he pay the same over, with all the interest and accumulation properly and legally chargeable thereon, to the said D. V. S., J. B. and T. H., as trustees under said will and codicils, or to such other trustees as may be appointed by this court; and that a receiver of all the property and effects of the estate of the said testator may be appointed by this court, during the pendency of this suit, with such powers and authority as to this court may seem meet and proper ; and that the said J. P. B. may be restrained and enjoined, by the order of this court, from further interfering or intermeddling with, or from further using the assets and property of said estate, until the further order of this court, and that the plaintiff may have such other or further relief as shall be agreeble to equity, with the costs of this action.

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