aforesaid, prays for a construction by the court of said will and codicils, and the trusts therein contained, that said will and codicils be established, and said trusts be performed and carried into execution by and under the direction of this court; that an account may be taken of the said testatrix's personal estate and effects not specifically bequeathed, and of her funeral expenses and debts, and of the legacies and annuities bequeathed by the said will and codicils, the plaintiff being ready and hereby offering to account for all such parts of the said personal estate as have been possessed by him, and that by the constructions of said will and codicils, it may be adjudged that the said personal estate not specifically bequeathed, be applied in payment of the said funeral expenses, debts and annuities, in a due course of administration, and that the clear residue (if any) of the said personal estate, be ascertained and paid to the said defendant, E. G., in her own right; and in case it shall appear that said personal estate not specifically bequeathed, is not sufficient for payment of said funeral expenses, debts, legacies and annuities, or that any parts thereof are not payable out of said personal estate, then that proper directions may be given in payment of such deficiency, or of such parts thereof as are not payable out of the said personal estate, according to the trusts of the said term of years vested in the plaintiff, as aforesaid, and that an account be taken of the rents and profits of the said real estates comprised in said term received by, or come to the hands of the plaintiff; and that the same may be applied according to the trusts of the said term; and that proper directions be given by the court touching the carrying on of said trade or business, also touching the effects specifically bequeathed by the said will and codicils, as heir-looms, and that proper inventories may be made thereof; and that a suitable per

son be appointed by the court, to receive the rents and profits of the said real estates devised by the codicil of

the

relief, &c.

day of

; or for such other or further

(No. 41.)

By an infant devisee and cestui qui trust, by his guardian, against executors, to have trusts in a will carried into execution, and for an accounting.1

Title of the Cause.

The plaintiff, Henry A. Tallmadge, an infant under the age of twenty-one years, to wit, of the age of nine years and upwards, by Joseph Blunt, his guardian,2 complains of the defendants:

That Benjamin Tallmadge, late of the town and county of Litchfield, state of Connecticut, deceased, duly made

1 This precedent is adapted to the Code, from a bill filed in the late Court of Chancery, in the case of Henry A. Tallmadge, an infant, by his next friend, vs. Henry F. Tallmadge and others, argued in the Court of Appeals, October 11th, 1850. The executors, who are trustees under the will, and the persons claiming an interest in the trust fund are the parties defendants.

2 It is held by the General Term of the Seventh District, that this allegation is not sufficient, but that the complaint must show, by proper averments, the due appointment of the guardian, by the court or a judge. (Hulbert, an infant, v. Young, 13 How., 413.) The common practice has been otherwise. See note, ante, page 46. The safer course, is, undoubtedly, that indicated in the decision referred to, namely, to set out the time and manner of appointment of the guardian. A complaint so drawn, will be found in a subsequent form, in the case of a complaint, by an infant, for a divorce, on account of nonage.

and published his last will and testament in writing, bearing date the 7th day of August, 1831, and thereby, amongst other things, gave and bequeathed, in words and figures, or to the purport and effect following, that is to say:

"Although I should rejoice to leave a due portion of my property to each of my children, to be entirely subject to their own several individual control, yet such has been the conduct of my son, George Washington, of late, that I feel it to be my bounden duty to make him an exception. I therefore appoint Henry F. Tallmadge and John P. Cushman, trustees, into whose hands shall be paid all the property that would fall to the share of the said George W. Tallmadge, by any provision of this will; and I hereby direct my said trustees to take all the property of my said son, George W. Tallmadge, that may be apportioned to him, by this will, of every description and character, and place the same on interest, either in some safe public fund, or at private interest, well secured, the interest alone of which shall be appropriated for his support and that of his family. The principal shall be reserved for his child or children, to be paid over to them, equally, when they shall severally come of age, provided their father should not then be living; but if the said George W. Tallmadge should be then alive, the whole of said fund shall be kept on interest, to be applied for his use and benefit during his natural life. So, also, in the case of his death, if his present wife should survive him, then the one equal half of the same privileges and benefits shall be extended to her, as have been provided for him, during her continuance to be his widow; after which, the whole bequest shall be divided to the aforesaid children of George W. Tallmadge, as above provided. If only one child should survive them, then shall one half of the sum be

queathed to Washington, be paid over to said child; and if no child should survive them, then shall the whole bequest be for the equal benefit of all my surviving children," as by the said will will more fully and at large appear.

That the said Benjamin Tallmadge departed this life on or about the month of March, 1835, without having altered or revoked his said will, which has been duly proven; and that the said defendants, John P. Cushman and Henry F. Tallmadge and Maria Tallmadge, were duly qualified as executors and executrix of the said will, and have taken upon themselves the execution thereof.

That the said executors and executrix, after the death of the said Benjamin, paid over to the said Henry F. Tallmadge and John P. Cushman, the share to which the said George was entitled, by virtue of the said will, but what amount the plaintiff is ignorant. That the said Henry F. Tallmadge and John P. Cushman have taken upon themselves the execution of the said trust, herein before more particularly set forth, and that the said Maria is now dead.

That the said George Washington departed this life on or about the 8th day of September, 1835, leaving Laura M., his widow, and the plaintiff, his only child, him surviving.

That the said Laura M., the widow of the said George Washington, on the 22d of August, 1839, married Van R. Humphrey, of the state of Ohio.

That upon the death of his father, the said George, the plaintiff, became entitled, and still continues to be entitled, pursuant to the directions of the said will, to the use and benefit of half of the estate bequeathed to the said George Washington.'

This being the allegation of a mere conclusion of law, is not, in strictness, a proper allegation to be set forth in a pleading, and is certainly unnecessary.

That the income of the whole share, directed to be placed in the hands of the said John and Henry, was intended by the said testator for the support of the family of the said George, and that the plaintiff is entitled to the income of the remaining half part of the said estate bequeathed to the said George, since the marriage of the said Laura; and being so entitled, he has caused application to be made to the said trustees, and has requested them to account with him for his separate share of the estate, and the moneys arising therefrom, which he is entitled to, pursuant to the directions contained in said last will; but that the said trustees express doubts as to the extent and nature of the interest to which he is entitled under the said will, and insist that, until a construction has been given to the said will by a court of equity, they will not account with him, nor pay over to him the amount to which he is entitled under the said will, and they still refuse to comply with his reasonable request, as in justice and equity they ought to have done.

That the children of the said Benjamin, living at the time of his death, were the said George, &c. [naming them], all of whom, as the plaintiff is informed and believes, claim some right to the property vested in the hands of the said John and Henry, as above set forth, or to some portion thereof.

Wherefore the plaintiff demands judgment, that the said defendants, trustees, &c., may be directed to perform and carry into effect the trust hereinbefore mentioned and contained in the said last will, according to the true meaning and intent thereof, and agreeably to the intent and meaning of the testator, and that a full and true account may be rendered by said defendants of all the estate and effects, of every kind, nature or quality whatever, which now are, or ever were, in the custody, possession or con