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devisées of Mary McKay, deceased, complain of the abovenamed defendants; that, on the 19th day of January, 1846, at Albany, in the State of New-York, one Mary McKay died, being at the time of her death a resident of the county of Albany, having in her lifetime duly made and published her last will and testament in writing, bearing date on or about the said 19th day of January, 1846, which was executed and attested as by law is required to pass real and personal estate, a copy of which is hereto annexed and forms part of this complaint.
That the said testatrix departed this life on or about the 19th day of January, 1846, without having altered or revoked her said will.
That Archibald Campbell, the executor named in the said will, renounced and refused to act as such executor.
That afterwards, and, as the plaintiffs are informed and believe, in or about the month of August, 1846, the said will was admitted to probate by Anthony Blanchard, Esq., then the surrogate of the county of Albany, as a will of personal and real estate, and was thereupon duly recorded as such in the office of said surrogate, as by the record of the said will and the said probate thereof, in the office of the said surrogate, will more fully appear, and to which the plaintiffs for greater certainty refer.
brought by one or more, on behalf of themselves and others, and that all might avail themselves of the decree ; and that the rule has not been changed by the Code of Procedure.
When the question involved is one of “common or general interest" ( Code, § 119 ), the action may be brought by one or more, for the benefit of all who have such common or general interest, without showing that the parties are very numerous, or that it would be impracticable to bring them all before the court. The provision of the Code, declaring that, when the parties are very numerous and it is impracticable to bring them all before the court, one or more may bue or defend for the benefit of the whole, applies indiscriminately to all actions, whether they involve questions of common interest or not. Per Harris, J., ibid.
That after the said probate of the said will, and on or about the — day of August, 1846, letters of administration, with the will annexed, were issued by the said surrogate to the abovementioned James L'Amoreux, who duly qualified and entered upon the duties of such administration, and by virtue thereof possessed himself of the personal estate of the said testatrix, and thereupon became liable to pay the debts and legacies of the said Mary McKay, deceased, in the manner therein directed.
That the abovenamed plaintiffs, Isabella McKenzie, Barbara McKenzie, wife of Roderick McKenzie, Elizabeth Ferguson, widow of George Ferguson, deceased, and James Ferguson, Elizabeth Ferguson and George Ferguson, children of Jane Ferguson, deceased, are the legatees provided for in said will, and are entitled to the payment of the legacies therein bequeathed to them respectively.'
And the plaintiffs further state, that they are informed and believe that the said L’Amoreux alleges, and, as they believe, truly, that the said testatrix has left personal property to a small amount, but not to an amount sufficient to discharge the funeral expenses and just debts of the said testatrix, and to pay the legacies provided for in said will; but that said testatrix has left certain real estate in the city of Albany, of the value of at least $4,000, and which is described as follows: [Describing the premises.]
And the plaintiffs aver, that they have not received the said legacies due to them as aforesaid, nor has either of them received the same, or any part or portion thereof.
And the plaintiffs further state, that they have repeatedly applied to the said defendant, James L'Amoreux, and requested him to come to a just and true account of his administration of the said estate, and to pay and discharge the debts and legacies to the persons entitled thereto respectively, and to cause the said real estate, or so much thereof as might be necessary for that purpose, to be sold and the proceeds applied to the payment of the same; but the said L'Amoreux, as such administrator, refused and still refuses to comply with such application of the plaintiffs, alleging and claiming that said legacies are not a charge on said real estate, and are not entitled to payment out of the same, whereas the plaintiffs expressly charge the contrary thereof to be true.
And the plaintiffs further state, that after the making of the said will by the said Mary McKay, deceased, and after the death of the said Mary McKay, the said Elizabeth Stewart, who is described in said will as a niece of the late Lachlan Stewart, and is one of the residuary legatees named therein, intermarried with one Solon H. Lathrop, now of the city of Buffalo, in this state, and that the said Solon H. Lathrop and Elizabeth his wife, and also the said Caroline Jane Stewart and Hallowell Matilda Stewart, who are the residuary legatees named in said will, refuse to consent to such sale of said real estate, and the payment of the debts and legacies provided for in said will out of the proceeds of such sale, claiming and maintaining that the said legacies are not a charge on such estate; whereas the plaintiffs aver and claim that, by the terms of said will, the said legacies are a charge on such real estate, and that they are entitled to payment out of the same.
Whereupon the plaintiffs demand judgment against the defendants, and that the will of the said testatrix may be established, and the trusts thereof performed and carried into execution, and that an account may be taken of the personal estate and effects of the said testatrix, and of the rents and profits of her real estate, and of the moneys arising from the sale thereof (if any have been made ) which have come to the hands of the said administrator, or to the hands of any other person or persons, by his order or for his use; and also an account of the debts, legacies and funeral expenses of the said testatrix; and that the real estate may be sold by and under the direction of this honorable court, and that the proceeds thereof, together with the personal estate, may be applied in due course of administration to the payment of all just debts and legacies, as provided and directed in and by said will ; and that a receiver may be appointed to take charge of the said real and personal estate of the said Mary McKay, deceased, with the usual powers of receivers in such cases, and that the plaintiffs may have such other and further relief as to the court shall seem meet and agreeable to equity. STEVENS, EDWARDS & MEADS,
( No. 81.)
By a creditor of a corporation that has been insolvent for
more than a year, to charge the directors, individually, under $$ 3 and 4, chap. 361, Laws of 1831; praying that such corporation may be declared to have been so dissolved, and that said directors, individually, pay the debt.
SUPREME COURT-WASHINGTON COUNTY.
Samuel T. Tisdale
Daniel W. Wing, Russell W. Pratt and
The complaint of Samuel T. Tisdale, plaintiff, against the defendants abovenamed, respectively states, that heretofore, on the 4th day of June, 1846, a corporation, known and distinguished as The Hudson River Iron and Machine Company, was duly organized, under and by virtue of the provisions of an act entitled “An act relative to incorporations for manufacturing purposes,” passed March 22d, 1811, located at Fort Edward in said county, the object whereof was manufacturing iron and other articles, the
1 The action was originally commenced against the above defendants, and the corporation, The Hudson River Iron and Machine Co.; and the complaint did not allege that the company had remained insolvent and suspended business for one whole year. The defendant demurred for improper joinder of parties, and that the complaint did not state facts, &c.; and the demurrer was sustained at Special Term mainly on the latter ground, with liberty to amend by striking out the company as a defendant, and this decision affirmed by the General Term of the 4th District. The precedent is now framed according to that decision, the name of the company as defendant being omitted, and the allegations in italics, on page 343, added.