The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-11-22
Supreme Court-Equity Side.


vanc.d hour of the evening.
Supreme Court-Equity Side.
srLoIAL TkKn.
INFORMANT CAsE-pANIKI. CARROLL VS.. CHARLES II.
CARROLL AND OTHERS.
Before Chiei Justice Edmonds
Nov. l9.-Ths cause came before his Honor on .
demurrer, taken by tina def ndant Charles Carroll
to the plaintiffs bill The bill Was filed in ls46 stating
that Charles Carroll late OF the county of Livingston
In this state the father OF complainant ard Of dofon
dant, In his hfetime-te wit, on or about tho lith
October, 1923 made aud published his last will aud
Testament 70 demise aud pass bis real aud personal
estate, and thereby directed that. In the hrst in
stance, all his just debts be fully and speedily
paid after which, he demised to his wife
third part OF his real estate which might remain
after payment Of his debts, for the term Of her
natural liis and all bis personal estate 10 dispose
OF all she sht think 1T and proper, and further be-
qcenthed to her $4,000 20 be paid to her soon IS
ms executors could raise the money by the sale of
any part ct his estate or that that amount o: real
estate might be conveyed to her In tee her option
by his executor lie thea devised and b-queathed to
his other children namely, Jane Ms, Ia Tabhy, Han
ps l. Carroll Ann ksbeccs Lane Eliza Barbara Car
roll Charles Hoikar Carroll Daniel Joseoh Carroll
and VIM Thomas Carroll, and to their heirs each Que
seventh part OF his estate boil real aud pereou aud
further he devised 10 mia son, Chss u Carroll and his
heirs the sum OF $40 OVe TO be paid of the sales
OF his real estate to be given him for the trouble he
might have in the setteDsnt of the te.tators affairs
ana to indemnify him Tor the loss he might sustain
In bis profesioD aud said that IL
his will aud desire that the seventh aforesaid
bequesthed to his children, should not be paid ap
portiopsd amongst them Until the two sums of $4,000
bsqusathed 10 his wife ana his son Charles II Carroll
are taken out nor until all mis- just debts fully pro.
vioed Tor ana paid cut OF his estate and he further
expressed IL to b. his will and DESIRE that all debts
ofeysry kind soever, due TO him NJ the time OF his
death, should bo applied to the payment Of tbs
a.bts which ne might owe at the time OF his de-
cease, ana for no other purpose whatsoever And
said te.taior nominated aud appointed his son.
Charles Ia Carroll sole executor OF his said will with
full TO sell dispose OF any portion the whole
OF his real estate, and TO make deeds of the same,
&C and further raid teststor clothed bin with iul
power to sell convey In fee simple or lase or
mortgage any lands he, the tesator owned in any part
CT the United States tor the purposes abo
that - say Tor the pa ment OF his debts and les
c.r az other bill further stated that sad
Cbai. Carroll departed this lite In the mouth of o.
tob-r le23 without altering revskiDg said wilt and
that ~ the time Of hts death he seized In fee sim
pie OF large real estate In the counties of Livingston
and Monroe In this state and also of large Of
land In the etSter Of Kentucky and MsGou, aud the
District ofcoumbis and also OF alarge estate In rhe
city Of Rochester In mi, State and that he left Ann
Carroll, hts widow. aud the several children above
named, who were his heirs at Law, him suryiving
said will duly proved aud probate thereof granted
the said Charles a. Carroll under which he possessed
bims II he psr.ons estate aud entered into posses
on Of the res. estate snd into recep the
the Anc that rsid Ann Carroll teststors widow
did in the year 1881 vithc at having been paid her
,asey Of Slo DO that s,ter probate OF snid will was
granted the defendant collected all the debts due TO
tbo r,tas Of his father but how UGH hs so received
complainant unable 20 so forth, iuasmusa As the
said Charles Carroll bal any inventory OF the
s,tAors as.ets, and that at various times previous
snrsR Of dferent pats o "a lande under the poser
OF rAs contained Ia said will, and received large
y
for the payment OF the purchase money, and that
be slso mCIteaged, leased and demt.ed large por-
mortgage and the rents aud prodts Of the ands 40
lrufed, but how much In particular he 60 received
complainant wa unable 10 set forth, nssnuch ~ said
deitnOspt never rendered apy account OF same The
complainant by hts bill further aliesos, that, on the
LET March. 1888 the ssid defendant improperly ADD
unnecessarily executed the conveyance Of large
por Of the ts.tHtcrr real estate to the Farmers
Loan sBd Trust Company, for which be only rsc-Eod
obations In wiring. or esrthesses called trust Ger
hat :. ed aft
faid Chsrss H. Carroll had, ne before eta received
funds and moneys amply sufficient 20 pay OF teststor
debts and sx.oies; aud that on the 3lrt dap OF De-
csmber, 1885. bs mortgsg-d to the North American
Tru,t srd Banking Company tract or parcel OF land
in the city 81 Rochester together With several other
tracts OF Psrcb Of lsndi the county OF Livingston
In this State part Of ad testacrs estate to secure
suI OF $50 COOS and that szid mortgage was given TO
said company In ration OF certain thAres OF
then steek issued TO ssia Charles II. Carroll for his
osn use and tegsnt After several other statements
ana ssRstions the sad b prayed that raid Charles H.
CaIoli might SGT forth tu aud tru. socount OF the
several made by him NJ the tsstsor real etats
and the by him OF sans -nd
FULL and particular account OF the mortgages granted
by him q raid real estat- AID Of the sgas thereof
and Of the rents and pronts recsvsd by hln aud no
applied and dsposed Of same and also on account Of
the a,bts testator aud whether he col
the same, aud what disposition hs made thereof 80
| To which the deisGdsBt drmurrot on the hilo~ing
grounds to wit first that whatever rights the CON.
psnsnt might have had % the pfeoaa estat. q tne
Of hns his bi BY rssssn 81 whea asisndsst insist.
| he Is barred by tbs ststuts aud, ssoondly. that
Whatever rights accrued O. complainant In rotation 90
the real eftate u devise of the teirt al aw
! OF the t.ststcr. accrued 20 bm more than 20 years
prior 20 the time q nlirg M. b Nc. Thirdly that
In relation 20 the dsviss 60 Nrs Ann Carroll, IA do.-
not appear by said Dill, but that she received such
rents and profits during her lifetime snd that since
her death does not spg.sr That r,n,s sna pro- y
ooes app by the said DILL but those entitled
TO them may hsve received them The defendant
takes the ground IN rotation 20 the several uthsi
lsg.ises The other grounds set up IN the demurrs'
are want Of proper r.itics 20 the ,uit maltisroos
utss and uncertainty In not poiniing out shat r-A
estate OF the tcstator has been sold leased aud mort
gagged. sc
defendant and after satsg the various charges al
aIlsaa,iors IN the bill the grounds 81 demurrer
ssio that the complaint had lsin BY Tor twenty thre
years end that the hrtt ntmaiion the defendant ha'
Of spy di-atfsctiou at HE oi tbs estate
Vas on the 23d q Decemhei 1876. lie then Insisted
this point the statute vas cicsrfor " expressly de
carcd that causes % this kind should be tried wner
the lspos are situate csl your hotors etteniio .
tad he TO the provifons of the Judiciary act whic
declares that cases lke the pretsst should be tried Il
tho district where the canse Of action sross. an
the spirit % this act ara 81 the revise,
statutes tbs csuse cuRht 60 be tried la the sevea
district where the lands are situate He then reisrre
10 the tie other grounds upon Witch the demurr'
vas brought sno insisted that the complainant "a
bGred b. the nstv.e 81 limiiation, 10 regard :
tiops 10 ne regarded as 70 the personal estate
the other 10 to the real essts The claim iourd
on the provision CT The will which he thu counsel ha
stated ". then stated this several bequests unds
she will and said he desired to mention in connsclio
With this part ~ the that the bill not a..
against defendant 80 IN any way representing Mr.
Arm Csrrel bat representing the testator aud tha
being the paiotin bad tailed 20 make out any cas-
against defendant Tor an sccount Counsel said. n
nv ct prop sition wss that complainant vas basrat
the statute Of limitations aud cited ths e7th sectO
81 the Code which rrovil that hill she nd be Ma
with references 20 trust after the n rirstcn 81 "
yesrs IL conceded that the tcststOr died t~ent
three years sgo and that defendant otts ned prs
oftss vi 10 October, 1924 one yesr after be death
\ aud thst toe present bill was not d,ed until 49,
Therefore the qusftiou IT, had he right 20 Gle IN
a r.u and " tbs defendant hound TO answer II.
l. Kksrd coniinusd TO argue at cor sijetabie Tenth
favor 81 the several ereunds ~ demurrer, 81
q 1 ccncludsd by insisting that the a. murfer oux
10 re allowed sna that the h'il shouJ b ditnis :.
- Mr. Berjemin Butler, Nth vho~r YES Mr. Geor
q wocd On the part Of the oem plsiusot stated IN
there were severed ohjections 70 ths DEN arrer. q