in the Supreme Court, against one B. G., for the sum of $4,150, damages and costs, and soon after collected the amount thereof, on execution issued upon said judgment.

Third. That on or about the, &c., the said plaintiffs, administrators, &c., as aforesaid, rendered their final account to the surrogate of Columbia county, and on the order and decree of said surrogate, thereupon made, paid over to said defendants, in equal proportions, the amount remaining in the hands of said plaintiffs, administrators, &c., for distribution among the next of kin of said intestate, to wit: the sum of $9,275, which included the said sum of $4,150, so collected by them on said execution as aforesaid.

Fourth. That subsequently to the rendering of said account, and the distribution of said money, the said B. G. appealed from said judgment to the general term of the Supreme Court, and such proceedings were thereupon had, that said judgment was reversed and a new trial granted.

Fifth. That the action was again brought to trial on behalf of said plaintiffs, by their attorney, and, upon such new trial, a verdict was rendered for the defendant, and judgment has been entered in his favor thereon.

Sixth. That said plaintiffs have, in consequence thereof, been compelled to refund and pay back to said B. G., the said sum of $4,150, with interest thereon, from the time of the rendition of said judgment, and said plaintiffs have also incurred costs and counsel fees on said appeal and new trial, in the sum of $250, which they have paid, on or about the day of

Whereupon the plaintiffs demand judgment against the defendants, that they may be compelled respectively to account with the plaintiffs for the sums of money so distributed to them, with interest thereon, from the time of

the rendition of said judgment; and account in the same manner, also, in respect to the above costs and counsel fees, so incurred and paid by said plaintiffs, and may each be adjudged respectively to pay to the said plaintiffs, administrators, &c., his share or proportion of said amount so distributed, and costs and counsel fees, and interest thereon. Or for such further, &c., [as in No. 1.]

(No. 4.)

For the execution of a trust, where the trustee has died, and, by accident or neglect, has omitted to execute that trust.1

SUPREME COURT-RENSSELAER COUNTY.

A. D., C. D., and E. F.,

agt.

L. M., N. M., and O. M.

The plaintiffs complain of the defendants, and allege the following facts, constituting their cause of action:

That the plaintiffs, A. D. and C. D., are the children and only heirs at law of F. D., deceased, and the plaintiff E. F. is the nephew of said F. D. And that the above named defendants are children and all the heirs at law of P. M., deceased.

That said P. M., late of the town of or about the

day of

died on

-, leaving a last will

and testament, which has been duly admitted to probate by the surrogate of Rensselaer county, as a will of both real and personal estate, wherein he devised to said F. D.,

1 Story Eq. Pl., § 98.

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.

day

That the said F. D. died on or about the 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.]

(No. 5.)

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 wife, 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

streets, in the city of

and

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.