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First. These plaintiffs state, that they are informed and believe, that a question has been raised, on the part of the heirs at law of said Reuben Rundle, Jr., deceased, whether the devise in the said will of the homestead farm to Charlotte, one of these plaintiffs, is valid, and whether it conveys an estate to her and heirs, in fee simple.

Second. These plaintiffs state, that they are advised that a question arises upon the said will, whether the bequest to the Protestant Episcopal Society for Promoting Religion and Learning in the State of New-York, of $5,000, the interest and income thereof to be applied as stated in said will, is valid, and whether the said Protestant Episcopal Society, as aforesaid, is competent to take and hold the said money for the uses and purposes mentioned in the will.

Third. These plaintiffs are advised that a question arises under the terms of said will, whether the gift and bequest of the Potter Kill and Bell farms, for the uses and purposes stated in said will, are valid; and if not, whether the direction to sell, and pay over the avails thereof to the said Protestant Episcopal Society, for the uses and purposes mentioned in said will, is valid, and should be carried into effect by these plaintiffs.

Fourth. These plaintiffs are advised that a question arises whether the direction to sell the remainder of the estate and invest the avails of such sale, and

pay

the interest to Charlotte Rundle, one of these plaintiffs, during her natural life, is valid and legal; and, in case any of the preceding provisions of said will are held void, whether the property referred to in such preceding provisions should also be sold and the proceeds thereof invested as aforesaid.

Fifth. These plaintiffs also state, that they are informed and believe, that a question arises whether the direction to pay the money to the Protestant Episcopal Society for Promoting Religion and Learning in the State of New York, to be by them held as a Rundle fund, as mentioned in said will, and whether the subsequent directions of said will in reference to the accumulation of said fund, and the disposition to be made of the interest thereof, are valid and legal.

Sixth. These plaintiffs also state that they are advised and believe that a question arises under said will, what disposition shall be made of the real or personal estate, devised or bequeathed by said will, in case any of the provisions thereof shall be adjudged illegal and void.

These plaintiffs further state, that the Protestant Episcopal Society is an incorporated society, and its powers and privileges will appear, by reference to an act of the Legislature of this state, entitled An act to incorporate the trustees of the Protestant Episcopal Society for Promoting Religion and Learning in the State of New-York, passed April 4th, 1839; and an act to amend the same, passed May 6th, 1844, to which acts reference is hereby made. And these plaintiffs further state that they believe it to be important to the due and speedy administration of the estate and effects of the said Reuben Rundle, deceased, by the said plaintiffs as executor and executrix aforesaid, and to the devisees and legatees named in said will, and to his heirs at law and next of kin, that the several matters aforesaid in regard to the said estate, as to which doubts exist or questions have arisen, and all other matters in regard thereto in reference to which any question or doubts as to the rights of any party in interest may exist, should be judicially determined by this court at this time, and such direction, decree and judgment be thereupon made and given as may finally settle and determine the rights of all parties in interest in and to the estate and property, of which the said Reuben Rundle died seized or possessed, and in and to every part thereof.

Wherefore the plaintiffs pray that this court will, by its determination or judgment, give all necessary and proper directions for the further execution of the various trusts mentioned in said will, and for the due administration of the estate of the said Reuben Rundle, deceased, in regard to the several particulars hereinbefore referred to, and in regard to any other questions which may be raised by any of the parties hereto, and for the passing and settling the accounts of said estate from time to time, and that this court will grant such further relief, or pronounce such further or other judgment and decree as the case made may require.

CHARLOTTE RUNDLE. M. B. MATTICE, Attorney.

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( No. 45.)

For the construction of a will and partition of real estate

devised by it, and the adjustment of the rights of the several devisees.

SUPREME COURT - - ALBANY COUNTY.

John Hogadorn

agt. Christiana Hogadorn, Cornelius Dubois and

Betsey his wife.

The complaint of the plaintiff in this action, respectfully shows that Thomas Hogadorn, late of the town of Rensselaerville, in the county of Albany, departed this life on the sixteenth day of May, in the year of our Lord, 1853, at the said town of Rensselaerville, leaving him surviving the abovenamed Christiana Hogadorn his widow; Betsey Hogadorn, who has since intermarried with Cornelius Dubois, one of the abovenamed defendants, Hannah Russell, the then wife of Samuel Russell, and the plaintiff, John Hogadorn, bis only children and heirs-at-law; that, previous to the death of the said Thomas Hogadorn, and on the 9th day of December, 1851, the said Thomas Hogadorn duly made and executed his last will and testament, to convey real and personal property, a copy

of which is annexed to and forms part of this complaint.'

The plaintiff further shows that, afterwards, and on the 23d day of May, 1855, the said last will and testament of the said Thomas Hogadorn was duly proved before the surrogate of the county of Albany, as a will of both real and personal property, and on the same day duly recorded in the office of the said surrogate, as by reference thereto will more fully appear.

That after the decease of the said Thomas Hogadorn, and on or about the 15th day of February, 1855, at the said town of Rensselaerville, the said Betsey Hogadorn intermarried with the abovenamed Cornelius Dubois, and that ever since such marriage the said Betsey and the said Cornelius have resided in the dwelling-house of the said testator there, claiming that they and each of them have the right and privilege of residing therein during the term of their natural lives.

[ And the complaint of the plaintiff further shows, and the plaintiff insists, that the right and privilege given in and by said last will and testament to said Betsey, of residing in and being in the dwelling-house of the said

· The provisions of the will sufficiently appear from the subsequent statements in the complaint. Hannah Russell, one of the above heirs, not being interested, under the will, in the subject matter of the suit, is not made a party.

testator, during her natural life, with the other privileges therein named, were and are dependent upon her continuing during her said natural life single and unmarried, and that when she so intermarried, as aforesaid, with the said Cornelius Dubois, such rights and privileges became forfeited ; that the provision made in and by said will, for the payment by the plaintiff, to the said Betsey, of the legacy of $1,400 upon her said marriage, pursuant to the terms and conditions of said will, was intended by the said testator as a legacy and bequest in lieu of her right to reside and live in said dwelling-house, in case she married; and now that said legacy and bequest of $1,400 have become operative, by the marriage of the said Betsey with the said Cornelius Dubois, and that the said plaintiff has become liable to pay the same, and such payment is made a charge upon the lands devised in and by such last will and testament to the plaintiff, the plaintiff submits and insists that neither the said Betsey, nor the said Betsey and her said husband, Cornelius Dubois, have the right and privilege of longer residing and living in said dwellinghouse, and that they should be required and adjudged to deliver their possession thereof to the plaintiff.]'

That the dwelling-house of the said testator, Thomas Hogadorn, which in and by said last will and testament was devised to the plaintiff

, subject to the rights and privileges therein given and granted, as aforesaid, to Christiana, the wife of the said Thomas, and to the said Betsey Dubois, is a large double dwelling-house, being

· The above allegations, in brackets, being entirely conclusions of law, or inferences drawn from the construction of the will, are not proper to be set forth in a pleading. They might, no doubt, have been expunged on motion as irrelevant. (See Pleadings, 355, 366.) I have retained them, however, for the purpose of showing the nature of the claim made by the plaintiff under the will.

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