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( 8.) WILLS.

( No. 43.)

For the construction of a will.

SUPREME COURT - RENSSELAER COUNTY.

Daniel Clint, Executor, etc., of the last will and textament 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 And 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."

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 deviseo 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 construction of the said will and codicil in the several particulars and parts thereof hereinafter specified and set forth, and especially in the codicil to said will, in respect to the validity thereof, and, if valid in whole or in part, as to the force and effect thereof, and the true meaning and construction of the same, and as to the duty of the plaintiff in the execution and carrying out of the said will and codicil, and of the trusts therein and thereby created, especially in relation to the distribution of the personal property bequeathed by said will and so remaining in the hands of the plaintiff as executor, as aforesaid. And the said plaintiff, by reason of the conflicting claims and pretensions made under and by virtue of said will and codicil, is in doubt as to his powers and duties on the subject of executing the provisions of said will, or said will and codicil, if the said codicil or any part thereof be valid and operative, and of the mode and manner in which he ought to proceed in carrying out and executing the bequests of the testator in the disposition and distribution of the personal estate held in trust by the plaintiff as executor, etc., among the several legatees who may be entitled to the same, and is also in doubt, from the terms of said will and codicil, as to who are the legatees properly entitled to the distribution of said personal estate, and he is therefore desirous of and prays that a judicial determination may be made of the various questions arising upon said will and codicil involving these points and particulars, as hereinafter mentioned, and a construction given to the true intent and meaning, extent, validity, operation and effect of the same, and of every part thereof, so far as may be sufficient and necessary to guide and direct the said plaintiff in the discharge of his trusts as executor, etc., and also to settle and finally determine all questions of difference

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.

arising upon said instruments, or growing out of the same, between any and all the parties to this action.

And especially that a judicial construction and determination may be given to the following questions which have been raised, and are now entertained by and between the respective parties to this action, and their counsel learned in the law :

First. Whether the whole of said codicil, or so much thereof as relates to any change or modification in the bequests and devises mentioned and made in said will to said defendant, Dewitt Clint, and the provisions contained in said codicil in lieu thereof, is not inoperative and of no effect, and void for uncertainty, and as being senseless, ambiguous and repugnant to the provisions of said will, and incapable of being carried into effect on a just and fair construction thereof.

Second. Whether the bequests and devises in said will to the said Dewitt Clint are not valid bequests and devises, notwithstanding anything to the contrary thereof contained in said codicil, and whether the said plaintiff

, in the proper and faithful discharge of his trust as executor, etc., is not in duty bound to distribute and set over to said Dewitt Clint the various articles of personal property bequeathed to him in and by said last will and testament.

Third. Should the said codicil be adjudged valid and operative, then that the true construction, meaning, extent, force and effect of the same may be determined, and especially in regard to the claim thereof which provides that said Dewitt Clint be reinstated in his rights under the will, that the measure and mode of proof which may be requisite and necessary to reëstablish such rights of said Dewitt under the will may be ascertained, adjudged and determined by the court, and that the said plaintiff may be advised and directed by the judgment of the

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