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become the owner of all the aforesaid real property of the said Nathan Cronk, deceased, except the interest of the said plaintiff, and the dower of the said Catharine Cronk therein.
Wherefore the said plaintiff demands judgment, that this court take proof of the execution and validity of the said will, and do establish such will as the last will and testament of the said Nathan Cronk, deceased; or for such other or further judgment in the premises as to the said court may seem meet and proper.
COLVIN & SEARS,
Case submitted for the construction of a will without action,
pursuant to section 372 of the Code.
Title of Cause.
The controversy in this cause is submitted to this court without action, pursuant to section 372 of the Code of Procedure, and the following is a statement of facts, agreed upon by the parties, upon which the controversy arises, to wit:
Morris Batterson, late of Coxsackie, in the county of Greene, died in the month of June, 1855, leaving a last will and testament, with a codicil thereto, in the words following, to wit : [Here set forth copy of will and codicil.]
The said will and codicil have been duly proved before the surrogate of the county of Greene, as a will and codicil of both real and personal estate, and letters testamentary thereon duly granted to the plaintiff.
At the time of his death the testator was possessed of both real and personal estate of the value of about $7,000. The real estate is worth about $1,100, and the balance is personal estate.
The testator died leaving him surviving his widow, Hannah Batterson (who was his second wife), and the following children, his next of kin and heirs-at-law, to wit: The plaintiff William A. Batterson, and the defendant Esther Mary Thompson, wife of Geoige A. Thompson, who are children of the testator by a first wife, and the defendants Abraham B. Batterson, Noah B. Batterson and Betsey Ann Batterson, who are children of the testator by a second wife, who survived the testator, all of whom are of full age.
Upon the construction of the will of the testator, the following questions arise, to wit: In what manner is the estate of the testator to be distributed, under the provisions of the 5th and 9th clauses of the 'will ? and what principle of distribution is to be adopted by the executor in carrying out the will in these particulars ?
It is claimed, by the children by the testator's first wife, that the sums directed in the 5th clause to be deducted from the shares of the children by the second wife are to be divided equally between the two children by the first wife; and the children by the second wife claim that the sums directed to be deducted from their shares are to be treated as advancements to them, and that it was the intention of the testator that all of the five children should share equally in the estate, treating the sums called " deductions” as a part thereof, and paying over to them one-fifth of the whole estate, deducting from the shares of the three children by the second wife the sums required to be deducted by the 5th clause of the will.
The judgment of the court, upon the construction of this will, is desired by all the parties to this controversy.
L. TREMAIN, Plaintiff's Attorney.
CITY AND COUNTY OF ALBANY, ss. William A. Batterson, the plaintiff named in the foregoing case, being duly sworn, says that the controversy herein is real, and the proceedings taken in good faith to determine the rights of the parties.
WILLIAM A. BATTERSON. Sworn before me, this 29th day of April, 1856.
E. J. MILLER,
Commissioner of Deeds, Albany, N. Y.
(9.) IN CASES OF PARTNERSHIP.
For dissolution of partnership, by one of three parties, praying for an accounting, and that one of the defendants may restrained from collecting and receiving the partnership debts, 8c.
Title of the Cause.
The plaintiff complains of the defendants, A. B. and C. D., and alleges the following facts, constituting his cause of action :
That, on or about the, &c., the plaintiff entered into an agreement with said A. B. and C. D., to form a partnership with them, in the business of auctioneers, which agreement was reduced to writing, and signed by plaintiff and said defendants, and is annexed to, and forms part of, this complaint.
That said copartnership business was entered upon and hath ever since continued to be carried on by the plaintiff and said defendants, in pursuance of and under said agreement, no other articles or instrument having ever been executed between them.
That, having much reason to be dissatisfied with the said defendant, A. B., and being desirous to dissolve the said copartnership, the plaintiff, on or about the, &c., caused a notice, in writing, to be delivered to the said A. B. and C. D., pursuant to said agreement, as follows, to wit: [ Set forth notice.]
That said A. B. hath, from time to time, since the commencement of said partnership, applied to his own use, from the receipts and profits of said business, large sums of money, greatly exceeding the proportion thereof to which he was entitled, and, in order to conceal the same, the said A. B., who has always had the management of the copartnership books, has never once balanced the said books. That the plaintiff having, in the beginning of the year
discovered that the said A. B. was greatly indebted to the said copartnership, by reason of his application of the partnership moneys to his own use, in order to impose some check upon the conduct of the said A. B., requested him that he would pay all copartnership moneys, that he received, into the -Bank, in which said copartnership was accustomed to keep its accounts, and would draw for such sums only as said copartnership had occasion for; but the said A. B. wholly disregarded said request, and continued to apply the partnership moneys received by him to his own use, without depositing the same in said bank, or any other bank, to the credit of the firm, and has also taken to his own use moneys received by the clerks of said firm, and has, by such means, greatly in
creased his debts to the copartnership, without affording to the plaintiff, and said defendant C. D., any adequate means of ascertaining the true state of his accounts.
That the plaintiff has, by himself and his agents, from time to time applied to the said defendant, A. B., and requested him to come to a full and fair account, in respect of the said copartnership transactions, with which just and reasonable requests the said defendant has hitherto wholly refused to comply.
That said defendant, A. B., has, in fact, received the sum of $—and upwards beyond his due proportion of the partnership profits, and that he is nevertheless proceeding to collect in the partnership debts and moneys, whereby the balance due from him will be increased, to the great loss and injury of the plaintiff and the said C. D.
That the plaintiff has applied to the said defendant, C. D., to join him as plaintiff in this suit, but that said defendant has refused to do so.1
Wherefore the plaintiff demands judgment, that the said copartnership may be dissolved, and that an account may be taken of all and every the said copartnership dealings and transactions from the time of the commencement thereof, and also an account of the moneys received and paid by the plaintiff and defendants respectively in respect thereto. And that the said defendants may be adjudged to pay the plaintiff what, if anything, shall, upon the taking of such accounts, appear to be due to him, the plaintiff being ready and willing, and hereby offering, to pay to the said defendants, or either of them, what, if anything, shall, upon the taking of said accounts, appear to be due to them, or either of them. And that in the mean
* If the consent of a party who should sue cannot be obtained, he must be made defendant, the reason being stated in the complaint. (Code, 110; see Pleadings, 133.)