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, his 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 1 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 1 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. about forty-eight feet in width, front and rear, and twenty-nine feet deep, consisting, on the first floor, of a hall in the centre of the building, and a bed-room in the rear of such hall, and on either side of said hall two large rooms, besides a closet or pantry belong to the rooms, on either side of said hall; in addition to which, said house has a large basement cellar, together with a spacious attic, which is capable of being converted into several large sleeping rooms. [And the plaintiff submits and insists that the said Christiana and the said Betsey, under the privilege granted in and by said will of remaining and living in said dwelling-house, are only entitled to suitable room for their convenience in said house, and that the free and uninterrupted use and enjoyment of one-half of said house furnishes suitable and ample room for such convenience, and that the free use and enjoyment of the other half of the said house belongs to the plaintiff, and that he is justly entitled to the same, and the plaintiff submits and insists that said last will and testament makes no provision for the residence of the husband of the said Betsey in said dwelling-house, and that he is not entitled to live and dwell therein.]1 That the plaintiff has been willing, from amicable consideration, that the said Christiana and the said Betsey, together with the husband of the said Betsey, should have the use, and occupy one-half, of said dwelling-house during the natural lives of the said Christiana and Betsey, provided they would allow the plaintiff to hold, use and occupy the other half part thereof; and that the said Christiana and the said Betsey might select either half 1 These allegations also are conclusions of law, which cannot properly be set forth in the complaint. part of said house they might prefer, or which would suit their convenience, and that such willingness of the plaintiff has been often expressed, as well to the said Christiana and Betsey as to the said Cornelius; and plaintiff has repeatedly offered to them, and each of them, to make, give, and accept such proposed divisions, but the said Christiana and Betsey, and the said Cornelius, have refused such offer, and have insisted that they are alone entitled to the use and possession of said dwelling-house, and every part thereof, and to the entire and absolute exclusion of the plaintiff therefrom, and from every part thereof; and the said Christiana and Betsey, and the said Cornelius, now hold possession of said dwelling-house, and exclude the plaintiff therefrom, and from every part thereof; and the plaintiff says that the defendants claim a life estate in said dwelling-house, and in the whole thereof, and to the exclusion of the plaintiff therefrom; and the plaintiff claims an equal, undivided interest therein, in common with the defendant, Christiana Hogadorn, during her life, or an equal undivided interest therein, in common with the said Christiana and Betsey, during their lives, and the entire interest therein, upon their decease. Wherefore the plaintiff, by reason of the adverse claims of the said plaintiff and the said defendants, under said will, asks to have the construction of said will settled, in respect to the matters aforesaid, and to have the question, as to its provisions, determined, so far as concerns the interest and rights of the plaintiff in the said dwelling-house of the testator aforesaid, as well as the several rights and interests of the defendants therein. And the plaintiff demands the judgment of this court, that the defendants may be adjudged to surrender and deliver to him the just and equal one-half part of said dwelling-house, and that a just and equitable partition thereof, between the plaintiff and the defendant Christiana Hogadorn, according to their several rights and interests therein, if they alone shall be adjudged to be entitled to hold and possess the same, or between the plaintiff and the defendants, Christiana Hogadorn and Betsey Dubois, according to their several rights and interests therein, if they shall be adjudged to hold and possess the same, or between the plaintiff and all the defendants, if all the said defendants shall be adjudged to have a life interest therein, may be had or made; or for such other or further relief, in the premises, as to the said court may seem meet and proper to grant. A. J. COLVIN, (No. 46.) Το prove and establish a lost will. SUPREME COURT-COUNTY OF ALBANY. Daniel Cronk Catharine Cronk, George C. Cronk, John Cronk, Lewis Fach and Elizabeth his wife, Margaret Cronk, Sarah Cronk and Robert Cutler. The plaintiff in this action complains of the defendants as follows: That Nathan Cronk, late of the town of Coeymans, in the county of Albany, and State of New-York, died on the 28th day of November, 1849, at the said town of Coeymans, and county of Albany, leaving the following |