The plaintiffs further allege, that said William Fox died on or about the 7th day of April, 1851; that he left him surviving the plaintiffs, John V. Fox and Ralph B. Fox, his children,, both of full age, and constituting all his heirs-at-law, and left no widow him surviving; that said William Fox left no last will and testament, or any other instrument in the nature of an appointment, directing the disposition of said real estate, or any part thereof, to the knowledge, information or belief of the plaintiffs; nor did the said William Fox, in his lifetime, direct the sale or disposition of any part of said real estate; nor have the said trustees, named in said will of Sarah Fox, sold or conveyed, or contracted to sell or convey, the same or any part thereof; wherefore, by the provisions of said will of said Sarah Fox, the plaintiffs, John V. Fox and Ralph B. Fox, have become and are seized and possessed in their

to give and devise the same, as fully as if sole and unmarried; And that he, the said first party, for himself and his heirs, executors, administrators and assigns, renounces all marital rights and claims he might and otherwise would have upon said real and personal property. "In witness whereof," &c.

[Signed by the parties.]

The statute provides that in case any of the parties, or the share or quantity of interest of any of the parties, be unknown, or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be a contingent remainder, so that such parties cannot be named, such fact or facts must be mentioned in the bill. (Complaint, 2 R. S., 318, § 7.) Therefore, if the rights of the defendants, as between themselves, depend upon the validity of a will under which an undivided part of the premises are claimed, or where the ownership of an undivided share of the premises is contingent or doubtful, and depends upon the construction of such will, it is proper for the plaintiff to state in his complaint the making of the will, and the substance thereof, so far as to enable the court to understand the rights of the parties. (Van Courtlandt v. Beekman, 6 Paige, 492.)

own right, in fee simple, each of an equal, undivided onequarter of said lands and premises, as tenants in common with the parties hereinafter mentioned, subject to the charge created thereon by said will of Sarah Fox; and the plaintiffs, Maria Fox and Mary Fox, their said wives, have each an inchoate right of dower in said undivided shares of their said husbands in said premises; that Albert Slingerland and Peter Slingerland, who were devisees, mentioned in the will of the said Abraham Slingerland, are both dead, and died prior to the time of the death of said Sarah Fox, as plaintiffs are informed and believe, but at what particular time they do not know and cannot state; and that, as plaintiffs are also informed and believe, said Albert and Peter both left them surviving children, and the descendants of children, their heirs-at-law, who, by the said will of said Abraham Slingerland, after death of said Peter and Albert Slingerland, have become and are seized, as tenants in common with the plaintiffs, John V. and Ralph B. Fox, of said lands and premises, subject to the charges and incumbrances created by said will of said Abraham Slingerland; that some of the heirs of said Peter Slingerland, and owners of said premises, are unknown to the plaintiffs, nor have the said plaintiffs by diligent inquiry been able to ascertain the names or places of residence of said heirs and owners unknown; that the names and places of residence of such of said heirs as are known to the plaintiffs, and as far as can be ascertained by them, as the plaintiffs are informed and believe, are respectively as follows: [Setting forth the names and places of residence of the heirs, as far as can be ascertained, and if any are married women the names of their husbands, all of whom are made parties defendants to the action, and stating which, if any, are minors, and their age, as far as known.]

That, as plaintiffs are also informed and believe, said Henry Slingerland, &c., [mentioning the names, and then

setting out in like manner the various different shares of the other defendants, ] are each seized, as tenants in common in their own right, in fee simple, of an equal, undivided one-eighth of one-quarter of said lands and premises, subject to the charge of the sum of $500 on the undivided shares of said Albert and Peter Slingerland, created by the said last will and testament of said Abraham Slingerland, deceased; and that said Abraham, the son of said Albert, is entitled to the said sum of $500, out of the proceeds of the said shares, on the sale thereof.

That, if there are any other rights or interests, either in fee or as tenant by the curtesy, in dower, or inchoate right of dower, or otherwise, in and to said undivided onequarter of said premises, belonging to the heirs of said Albert Slingerland, the same, and the names of the persons entitled to the same, are unknown to the plaintiffs; but the plaintiffs believe there are none.

That the heirs and descendants of Peter Slingerland, now deceased, one of the devisees mentioned in said will, as far as the same have been ascertained by or are known to the plaintiffs, are his sons, Abraham Slingerland, &c., [giving names and places of residence, and then add] but said plaintiffs do not know and cannot state more fully the names of the other heirs living of the said Peter Slingerland.

That the heirs of said Peter Slingerland, deceased, are collectively seized in their own right, in fee simple, under and by virtue of the provisions of the said will of Abraham Slingerland, as tenants in common, of the equal, un divided fourth part of said premises, subject to the payment of the said charge created by the said will of Abraham Slingerland; but the plaintiffs are unable to state, and do not know, the respective rights and titles of said

heirs, as between themselves, nor the shares or quantity of interest in and to said premises to which they are severally entitled.

The plaintiffs further state, that Abraham J. Vanalstyne and David Burhans, the executors named in said last will and testament of said Abraham Slingerland,' have duly qualified as such executors, and taken upon themselves the burden of the execution of said will, as the plaintiffs are informed and believe; but that they have not executed the power of sale contained in the codicil to said will, and decline to unite with the said plaintiffs, either in the partition or in the sale of said premises.

The plaintiffs further allege and state, that they do not know, and are therefore unable to state, further than as above set forth, the names or the respective shares or quantities of interest of any other person or persons having an interest in said estate, either as heirs, or tenants for years, for life, by the curtesy, or in dower or otherwise, or having an inchoate right of dower, or entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, or who may in any manner become entitled to any beneficial interest in said premises and real estate; except that Margaret Dollar, one of the defendants, has an interest in said real estate to the amount of $200, which is made a charge on the shares of the plaintiffs by the provisions of said will of Sarah Fox. The plaintiffs further state, that the aforesaid premises and real estate are the only premises owned in common by the plaintiffs and the said heirs and owners unknown. And there are no other specific

1 The executors are made parties defendants to the action by reason of the devise to them in trust, with power to sell the one-half the real estate after the death of the widow of the testator, Abraham Slingerland.

liens or incumbrances upon the said real estate, against any of the parties to this suit, to the knowledge or belief of the plaintiffs. That the said plaintiffs are desirous of a sale of said real estate, and that the moneys arising therefrom be divided among the owners thereof, or, that a fair and just partition and division of said property may be made, assigning to the said plaintiffs, John V. and Ralph B. Fox, in common, the shares to which they are entitled, as aforesaid, to wit, the equal, undivided half of said premises,1 and assigning and setting off to the said heirs of Peter Slingerland and Albert Slingerland the other equal, undivided half thereof, or making such further partition between said heirs as to this court shall seem meet and proper, according to the provisions of the statute. Wherefore the plaintiffs demand the judgment of this court, that the respective shares and quantities of interest of the plaintiffs in and to said premises, and the other owners hereinbefore named and owners unknown, may be ascertained and settled, as far as practicable, and that a fair and just partition and division thereof may be made between the plaintiffs and all other persons who shall appear to be owners of, or interested therein, according to the rights and interests of the parties therein; assigning to said plaintiffs, John V. and Ralph B. Fox, in common, the shares to which they are entitled, as aforesaid, and to the heirs of said Peter Slingerland and Albert Slingerland, either in common or in severalty, as to the court shall seem proper, the shares to which they are entitled as aforesaid, pursuant to the statute in such case made and provided, and the rules and practice of this court; or in case a partition thereof, or of any part thereof, or a division, as aforesaid, cannot be made without great

'By statute. (Session Laws of 1847, chap. 430.)