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

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

court in what manner to proceed, and on what evidence that said Dewitt has complied with the conditions in said codicil, and has been reinstated in his rights under the will, and when and how to proceed in the division and distribution of the personal property and estate bequeathed to the said Dewitt Clint in and by the provisions of said will.

Fourth. And should said codicil be held valid, then that it be adjudged and determined whether, by a just and true construction of said will and codicil, the executors therein named have a power to sell all or any, and, if any, what portion of the real estate mentioned in said will, and devised either in fee or remainder to said Dewitt Clint, and out of the avails of what portion thereof the said sum of $1,500, mentioned in said codicil to be paid to him, is to be paid, and against what portion of such real estate the various pecuniary legacies, mentioned in said will to be paid by said Dewitt, are to be made chargeable, and whether the said executors are to pay and satisfy the same on a sale by them of any, and what portion of said real estate. The said plaintiff hereby expressly charging and alleging that no portion of the real estate devised to him, the said plaintiff, in said will, or to the said defendant, John S. Clint, or to the said defendant, Aaron Clint, is in any event to be made chargeable, with any portion of said several pecuniary legacies, but that the same are devised to and belong to them, respectively, in fee, free from any such charge or incumbrance.

And the plaintiff further says that the said defendant, Dewitt Clint, claims and insists that, between the date of the codicil aforesaid and the death of the testator, he, the said Dewitt, did, in all respects, fulfill the conditions mentioned in said codicil, according to the true intent and meaning thereof, and to the satisfaction of his mother, and

also of the said testator, and thereby became, and was, and now is, reinstated in all his rights and privileges, according to the provisions of said will, the same as though no such codicil had ever been made. But the plaintiff is not advised of the nature and extent of such satisfaction, or of its validity or effect, in reinstating the said Dewitt to his rights, as aforesaid, and is thus left in great doubt as to his, the said plaintiff's, duty to pursue in the premises.

Wherefore the plaintiff demands the judgment of this court, that all and singular the questions arising upon said will and codicil, hereinbefore stated and set forth, be judicially determined and adjudged between the plaintiff and the respective parties, defendants to this action, and also all such other questions of difficulty or doubt in the construction of said will and codicil as may be presented in and by, or arise upon, the respective answers of all or any of the defendants, or may otherwise be properly brought before the court, to the end that a just, full and complete construction may be given to said will and codicil, and every part thereof requiring judicial construction, and a full and final determination made of the rights of the respective parties claiming under the same, and that the plaintiff may be directed how and in what manner to proceed in the proper execution of his trust; and should the said codicil be declared inoperative and of no effect, or should the said Dewitt establish his said claim to a full performance of the condition mentioned therein, then that said plaintiff, as executor, etc., be ordered and directed, on the final settlement of said estate, after first paying all just debts and demands, to distribute the residue of the personal property of said testator to the legatees mentioned in said will, in all respects pursuant to the provisions thereof, and as though said codicil had no existence, or for

such other or further relief as may be agreeable to equity, and as the nature of the case may require.1

S. & V. S.,

Plaintiff's Attorneys.

1 Codicil.

"Whereas I, John Clint, of the town of Poestenkill, county of Rensselaer and State of New-York, have made my last will and testament, in writing, bearing date the 4th day of June, in the year of our Lord 1852, and by which I have given and bequeathed to my son Dewitt a certain portion of my real and personal estate, described in the abovementioned will. Now, therefore, I do by this my writing, which I hereby declare to be a codicil to my said last will and testament, and to be taken as a part thereof, order and declare that my will is that, instead thereof, I give unto him, the said Dewitt, the lot known as the Knapp lot, situated in the village of Poestenkill, forever after my decease, and $1,500 out of the avails of my real estate, over and above his equal share. And whereas my said Dewitt is now pursuing and persisting in a course of conduct which is very grievous to myself and his mother, in consequence of which I am under the disagreeable necessity of disannulling all my former provision in my said will; if, however, he, the said Dewitt, shall desist and abandon the object which has and does cause the necessity of this codicil, so far as it respects him, to the satisfaction of myself and his mother, then to be reinstated according to the true intent and meaning of my said will; if, however, this satisfaction is not made during the lifetime of myself and his mother, then all my real estate, not otherwise disposed, to be equally divided between my sons and daughters, named in my aforesaid will, with the exception of my said son Daniel, who has been heretofore provided for.

"I also give unto my daughter Margaret the Hoag lot, heretofore mentioned in my will, to have and to hold forever at her own disposal, with all the privileges thereunto belonging, and also, in addition to the rooms she now occupies, to have the choice of either of the lower rooms, after the decease of her mother; and also fire-wood for one fire, brought from the mountain lot by my said son Daniel and said son Dewitt, each one equal half, to be delivered at her house, in the village of Poestenkill, ready cut for the fire; and, lastly, it is my desire that this codicil be annexed to and made a part of my last will and testament, as aforesaid, to all intents and purposes.

"In witness whereof," &c., &c.