persons, to wit: [naming them,] his children and heirs at law, him surviving; and that the said plaintiff and the defendants above named are according to the best of said plaintiff's knowledge, information and belief, the only heirs of the said Nathan Cronk.

That the said Nathan Cronk, at the time of his decease, was lawfully seized in his own right, in fee simple, of the following parcels and lots of land, lying in the said town of Coeymans, and county of Albany, that is to say: [Describing them.]

That the said real estate, whereof the said Nathan Cronk died seized and possessed, as aforesaid, was worth, at the time of the decease of the said Nathan, according to the best knowledge, information and belief of the said plaintiff, about the sum of $7,000.

That said Nathan Cronk, at the time of his decease, as aforesaid, was possessed in his own right of personal property, consisting of hay, grain, stock, farming implements, household effects, &c., which the plaintiff charges and believes was worth, at least, the sum of $1,000.

That on or about the 20th day of November, 1849, the said Nathan Cronk made his last will and testament of both his real and personal estate, he being, at the time of executing the same, of sound and disposing mind and memory, and in all respects competent to devise real estate, and not under restraint; and that the said will, according to the best knowledge, information and belief of the plaintiff, was in substance and to the effect following, that is to say: [Stating the same.]

That the aforesaid will of the said Nathan Cronk was in existence at and for some time subsequent to the death of the testator, the said Nathan Cronk, and was opened and read, and heard read, and was seen and known to be in existence, as the plaintiff is informed and believes, by sundry persons interested in its provisions.

That at the time of the decease of the said Nathan Cronk, he, the said plaintiff, was a minor, under the age of twenty-one years, and that he has but recently arrived at his majority; and that he is the Daniel Cronk, mentioned in said last will and testament, in whose favor the said bequest of $1,500 was made.

That no executors were named by the said testator in said will, nor have any letters testamentary, or of administration, been issued from the surrogate's court of the county of Albany upon the estate of the said testator; nor has the will of the said testator been proved in the surrogate's court of the county of Albany, for the reason that the same could not, after the most diligent and thorough search, be found.

That he is informed and believes, that the said will is lost by accident, or that the same has been destroyed, by design, by some person or persons who were interested in defeating the operation of the said bequest of $1,500 in his, the said plaintiff's favor.

That the aforesaid real property of the said Nathan Cronk was unincumbered and free from debt at the time of the execution of said will, and at the time of the death of the said Nathan Cronk; and that the personal property of the said Nathan Cronk was more than sufficient to pay all his debts.

That since the death of the said Nathan Cronk, as aforesaid, the defendant, George C. Cronk, conveyed, by deed, as heir at law of said Nathan Cronk, all his interest in the real property of the said Nathan Cronk to the said John Cronk, another of said defendants, and that the said John Cronk, Elizabeth Cronk, the wife of the said Lewis Fach, Sarah Cronk and Margaret Cronk have also by deed conveyed their interests in the real estate of the said Nathan Cronk to the said defendant, Robert Cutler, who is now

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,

Plaintiff's Attorneys.

(No. 47.)

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 George 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.

DEXTER REYNOLDS, Defendants' 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.

(No. 48.)

For dissolution of partnership, by one of three parties, praying for an accounting, and that one of the defendants may be restrained from collecting and receiving the partnership debts, &c.

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.