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 particularly 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

of H. L. R., in the city of New-York, and that said H. L. R. then and there, at said S. A.'s request, witnessed the execution of said deed, and signed his name as subscribing witness thereto, and that at the time of executing said deed the said S. A. stated that he intended it as a gift to his daughter.

That on or about the fifth day of July, 1852, the said S. A. left New-York with the intention, in a short time, of proceeding to Saratoga Springs, where he was to meet the plaintiff and her husband, but that he died before reaching the latter place, without having seen the plaintiff subsequently to the execution of said deed.

That, as plaintiff is informed and believes, her father executed said deed, and caused the same to be witnessed by the said H. L. R., as a complete and perfect conveyance, with the intent that the same should from that time operate as a complete and perfected conveyance and assurance, of the property therein mentioned, to the said plaintiff, and that he intended to deliver the said deed to the said plaintiff within a few days thereafter, and as soon as they should meet.

That the said deed has been, since the death of the said S. A., and now is, in the possession or under the control of the said defendants, the executors and trustees aforesaid; and that plaintiff has, at different times since her father's death, requested the said defendants to deliver to her the same, and that she has caused the delivery of said deed to be duly demanded of said defendants, but that they have altogether refused, and still wholly refuse to give up the possession of said deed.

Wherefore the plaintiff demands judgment against the said defendants, W. M. A., J. L. and J. W. Q., that they may be required to deliver said deed to the plaintiff. And that her title to, and possession of, the property described

in said deed, may be quieted and confirmed as against each and all of the defendants, whether claiming as executors or residuary devisees or otherwise. And for such further or other relief in the premises as the court shall direct, with costs of this action.

KING & BUEL.
Plff's Att'ys.

(No. 6.)

To compel defendant, a trustee, to certify his consent to the execution of a conveyance, which he had omitted, by accident, to do, and which was necessary to the proper execution of a trust power.

SUPREME COURT-COUNTY OF CHENANGO.

Benjamin R. Barber
agt.

George A. Cary.

Benjamin R. Barber, plaintiff, complains of George A. Cary, defendant: That on or about the 4th day of December, 1846, the said defendant, as trustee for Albert G. Cary and Melissa, his wife, conveyed by warranty deed, duly signed, sealed and delivered, all of that certain piece or parcel of land lying in the town of Oxford, Chenango county, New-York, and being a part of lot number nine in the gore, bounded and described as follows, viz: (Here insert description), to him, the said plaintiff, for a valuable and sufficient consideration. That, as he is informed and believes, the aforesaid lands are part of certain lands devised to Albert G. Cary, during his life, and to his heirs, in and by the last will and testament of Anson Cary, deceased.

That Anson Cary, the said devisee, died on or about the 3d day of May, 1842. That as he is informed and believes, a power was given, in and by the last will and testament of Anson Cary, deceased, to the said Albert G. Cary, to sell the lands so devised to him, of which the lands above described, conveyed by the defendant to the plaintiff, form a part, and to dispose of the same, by and with the advice and consent of his mother, Hannah Cary, and brother, George A. Cary.

That Hannah Cary died on or about the 9th day of July, 1842, and before the execution of the power aforesaid.

That, as he is informed and believes, Albert G. Cary conveyed the said lands, devised to him by Anson Cary, deceased, of which lands above described formed part, to the defendant, George A. Cary, in trust, by and with his advice and consent, on or about the 19th day of July, 1843. That, as he is informed and believes, one of the purposes and objects of the trust aforesaid, was the sale of the whole or part or parts of the said lands so conveyed in trust, and out of the purchase money to extinguish and pay up a judgment which was a lien upon the said land, then owned by William G. Sands.

That, as he is informed and believes, the consent of George A Cary to the execution of the power aforesaid, contained in the last will and testament of Anson Cary, deceased, by the sale to himself, as aforesaid, of the said lands devised to the said Albert G. Cary, for his life, and to his heirs; with power of sale by the advice and with the consent of George A. Cary, although given at the time, was not expressed in the said conveyance to George A. Cary, by which the said power was executed, nor certified in writing thereon as required by statute.

That on the aforesaid fourth day of December, 1846, this plaintiff executed and delivered a mortgage on the