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the father of the plaintiffs, A. D. and C. D., a certain farm of land, situate, &c. [describing the premises), to have and to hold the same during his natural life, with directions that said F. D. should, by writing duly executed under his hand and seal, distribute and apportion said real estate in such manner as he should deem proper and just, among said plaintiffs, the said plaintiff E. F. to have, at least, one-fifth thereof in value; to take effect on the death of the said F. D.
That the said F. D. died on or about the day of — leaving no will and testament, and no writing whatever, distributing and apportioning said real estate among said plaintiffs.
That said F. D., in his lifetime, frequently declared his intention of executing an apportionment in writing of said real estate, whereby he should apportion to said plaintiff, E. F., an equal undivided one-fifth thereof; and to the plaintiffs, A. D. and C. D., each an equal undivided two-fifths thereof. And the said plaintiffs are willing and desirous that such apportionment should be so made.
Wherefore the plaintiffs demand that some suitable and proper person may be appointed trustee, in place of said F. D., deceased, and may be adjudged to carry out the directions contained in said will, and to apportion and distribute to said plaintiffs, the said real estate, according to the intentions of the said F. D., deceased, and to convey to said plaintiffs their respective portions of the same; that is to say, to the said plaintiff, E. F., an equal undivided one-fifth thereof, and to the said plaintiffs, A. D. and C. D., each an equal undivided two-fifths thereof, and that the said plaintiffs' title to their respective parts of said premises, so apportioned, be confirmed. Or for such further, &c. [as in No. 1.]
To compel the delivery of a deed held by executors and trustees
of grantor, which deed was intended, by the grantor, as a gift to the plaintiff, his daughter, a married woman, but which by accident was not delivered, on account of the sudden death of grantor. The complaint also prays a judgment confirming the title to the premises as against the trustees and residuary devisees.'
Title of the Cause.
The complaint of the above named plaintiff, respectfully shows to the court, that she is a daughter of S. A., late of the city of New York, deceased, and that on the 25th day of April, in the year 1848, she intermarried with A. R., of, &c., where she and her husband have since resided.
That some time in the latter part of the summer, in the year 1851, at, &c., and afterwards, in the month of August, 1851, at the residence of the plaintiff, and her husband, in, &c., her father, the said S. A., proposed to the said plaintiff to give her a lot of land in said city of — and to erect thereon a dwelling house, as a residence for said plaintiff and her family.
That her father, the said S. A., afterward, in said month
· The action may now be brought by the married woman in her own name, without any next friend, by the amendment (Laws of 1857,) to section 114 of the Code. The executors and trustees, and all persons having a residuary interest in the real estate, are made parties defendants. It being an action which concerns the separate property of the wife, her husband is also made a party defendant. As to cases in which the husband should be made a party defendant, in actions brought by the wise, see Plead., pp. 96 to 105.
of August, and at divers other times, directed and requested the said plaintiff and her husband to select such a suitable lot or site for a dwelling house, as the plaintiff and her husband should approve, and to agree on a price to be paid for the same, the said S. A. saying he would then furnish the means necessary to complete the purchase.
That her father, the said S. A., also requested and directed the plaintiff and her husband to procure a plan or draft of the building to be erected on said lot, with proper specifications of all the work to be performed in constructing and completing said building, and, also, to obtain proposals and make contracts for erecting the same, and furnishing the materials therefor.
That the said S. A. promised and agreed to furnish all the money necessary for the purchase of the lot, and for the erection of said building.
That in pursuance of the requests and directions above mentioned, the said plaintiff and her husband selected a site for a dwelling house on the corner of - and streets, in the city of —
That an agreement was duly entered into, with the owner of the premises, to purchase the same, for the sum of four thousand and five hundred dollars, and that on the completion of said agreement, her father, the said S. A., furnished to the plaintiff's husband, the amount therein agreed to be paid as aforesaid, and that a deed of said premises was executed by the owner of said premises, to the said S. A., and delivered to the defendant, A. R., said plaintiff's husband, on or about the 9th day of October, 1851, for the consideration above mentioned of $4,500, which was paid by the husband of the plaintiff, at the time said deed was delivered, and that the plaintiff and her husband then took possession of said premises, with the consent of said S. A., and have since remained in the possession of the same.
That in like pursuance of said instructions, proper plans and specifications for such dwelling house, as the plaintiff and her husband, the said defendant, A. R., desired, were obtained, and proposals for the erection of said building were also obtained, and exhibited to and approved by said S. A., and that contracts were, at his request, entered into and executed for doing all the work, and furnishing the materials necessary for the construction of the proposed building, and that the same were approved by the said S. A.
That by the consent and at the request of the said S. A., and in pursuance of the plans, specifications and contracts above mentioned, the construction of said building was commenced in the spring of the year 1852, and that the same has been diligently prosecuted, so that the exterior of said building is now nearly completed.
That on or about the 14th day of April, 1852, the said S. A. delivered to plaintiff's husband, the said defendant, A. R., his check for nine thousand and five hundred dollars, being the estimated sum required to complete said building, according to the plans and specifications above mentioned. And that the said S. A. then requested the said A. R. to apply the said money in erecting the building aforesaid, as the same should become payable by the terms of the contracts, which, as the plaintiff is informed and believes, the said A. R. has done.
That afterwards, and on or about the 28th day of July, 1852, plaintiff's father, the said S. A., lost his life by means of a sudden casualty.
That he left a will, duly executed in June, 1847, in and by which, after numerous special gifts and devises, for the benefit of his children and others, he gave and devised all the rest, residue and remainder of his estate, both real and personal, to his executors, in trust, nevertheless, to sell and
dispose of all his said residuary real estate, as in said will provided, and to divide, distribute and pay over the net proceeds of the same, and the said residuary personal estate and any accumulation thereof, equally, to and among his children thereinafter named, that is to say, the defendants, W. M. A., &c. [naming them], with provision for the issue of such of them as should die before the complete division of said residuary estate, as in said will is more pårticularly mentioned and set forth.
That said S. A., in and by said will, constituted and appointed the defendants W. M. A., J. L. and J. W. Q., executors of the same, and trustees of the
express trusts in and by said will created, and that said will has been duly proved, and letters testamentary thereon granted to said three last named defendants, and that they have all and each of them assumed the execution thereof.
That after the death of the said S. A., a deed of conveyance was found in a trunk, with the will, and other valuable
papers of the said S. A., at his dwelling house in the city of New-York, duly signed and executed by him, by which deed the said S. A., in consideration of one dollar, and of natural love and affection, granted and conveyed to the plaintiff in fee the above mentioned premises, situate, &c., which premises are bounded as follows [describing them], and are the same premises above referred to as conveyed to the said S. A., and on which, at his request, the said dwelling house was erected.
That the said deed is, as the plaintiff is informed and believes, in the hand writing of S. A., except the date and consideration, which were filled in at the time said deed was executed, at said S. A.'s request.
. That said deed bears date, as plaintiff is informed and believes, the third day of July, 1852, and that on the same day it was duly executed by said S. A., at the office