trol 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.

(8.) WILLS.

(No. 43.)

For the construction of a will.

SUPREME COURT-RENSSELAER COUNTY.

Daniel Clint, Executor, etc., of the last will and testament of John Clint, deceased, agt.

Magdalen Clint, John S. Clint and Emeliza his wife, Aaron Clint and Eliza his wife, William Snyder and Elizabeth his wife, Gilbert B. Thorn and Ann Uriah his wife, Nelson Dater and Barbara his wife, William A. Kilmer and Almira M. his wife, Dewitt Clint and Margaret Clint.

The complaint of the abovenamed plaintiff against the abovenamed defendants alleges the following facts, which constitute his cause of action, that is to say:

That John Clint, late of the town of Poestenkill, county of Rensselaer, died on or about the 29th day of May, 1854, leaving him surviving his widow, the abovenamed defendant, Magdalen Clint, and his next of kin and heirs-at-law, to wit, the abovenamed plaintiff, Daniel Clint, and the abovenamed defendants: [Naming them.]

That said John Clint, on the 4th day of June, A. D. 1852, made and published his last will and testament in the words and figures as set forth in the copy thereof hereto annexed, and forming a part of this complaint.

That afterwards, and on the 2d day of May, A. D. 1854, the said testator, John Clint, made and published a paper, purporting to be a codicil to his said last will and testament, in the words and figures as set forth in the

copy thereof hereto annexed, and forming a part of this complaint.1

That on or about the 7th day of October the said will and codicil were admitted to probate, by the surrogate of the county of Rensselaer, as a will and codicil of both real and personal estate, and that thereupon letters testamentary were issued in due form of law to the plaintiff in this action, Daniel Clint, who alone has qualified as executor of said will and codicil, and has assumed and taken upon himself the sole burden of the execution thereof, and the discharge of the trusts therein and thereby created.

That the said John Clint died seized of the several parcels of real estate mentioned by him, and devised in his said last will and testament also of a considerable amount of personal property, including all the articles mentioned specifically by him and bequeathed in his last will and testament, as well to the said widow as to the said

As the principal questions of construction arise upon the codicil, I have subjoined a copy of it, in order to convey a clearer understanding of the object of the complaint. The will (which on account of its length I have omitted) gives a life estate in the home farm to the widow, Magdalen, and the remainder, after her decease, to Dewitt, and also devises and bequeaths other real estate and personal property to Dewitt. The codicil, it will be seen, contains a kind of conditional revocation of the will: Dewitt to be "reinstated" if he shall "desist and abandon❞ a certain "object" not mentioned in the codicil. It is upon this clause of the codicil that the difficulty of construction arises, the principal questions being whether the whole codicil is not void for uncertainty, and, if not void, whether parol evidence may be admitted to show what was the "object" the testator meant, and also that the devisee did "desist and abandon," &c., as mentioned in the codicil. The Supreme Court of the Third District held the codi cil valid and operative, and as being an absolute revocation of so much of the will, and that parol evidence could not be admitted in favor of the devisee. The case has gone to the Court of Appeals.

defendant, Dewitt Clint, and consisting, among other things, of household furniture, farming utensils, live stock, horses, etc., etc., of the aggregate value of at least one thousand dollars, a considerable portion of which, by the terms of said will, was bequeathed to the said Dewitt Clint; and the said testator, to the best of the information and belief of the plaintiff, has left few debts, and those of a comparatively small amount, and not sufficient to require the sale or disposition of any portion of said personal property bequeathed to said defendant, Dewitt Clint, but that said personal property has come to the hands of the plaintiff as executor, etc., and the whole, or the greater portion thereof, remains in his hands as said executor, etc., in trust, to be distributed, divided and apportioned between and among the legatees in said will, or will and codicil, named, and according to the true intent, meaning and design thereof, and of the provisions therein contained, so far as the same may be ascertained and established, and ordered to be carried out by the final judgment and determination of this court.1

And the said plaintiff further alleges and states that doubts have arisen and are entertained by him, the said plaintiff, and others of the parties to this action, as plaintiff is informed and believes, relative to the true meaning and

1 The character of the executors as trustees, and the ambiguity or difficulty of construction arising out of the instrument creating the trust, confers upon them the title to ask this relief of the court, namely, a true construction of the terms of the trust, and the direction of the court as to the manner of executing it. It is essential to show this title in such a complaint, otherwise it would be bad on demurrer. If there were no power of sale of the real estate contained in the will, and the ambiguity or difficulty of construction related not to the personal property but only to the real estate, the executor could not maintain an action for a construction of the will.