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Statement of the Case.

materially enhanced the value of his estate; that he had rendered no account to her of the trust estate; and that he left real estate of large value in Memphis, and large sums of money and personal property in New York.

She then set forth the clause of the will in relation to No. 98 Madison Street, and stated "that she has not renounced said claim, so as aforesaid required to do, nor has she refused to renounce said claim, for the reason that plaintiff claims that by virtue of the deed of trust it is impossible for plaintiff to release said trust funds, and for the further reason that such a condition as aforesaid required is against conscience and justice." She further alleged that Mrs. Strange was unfit for the position of trustee, and that her interests were opposed to plaintiff's interests; that at the time of Merrill's death plaintiff was informed and believed he was free from debt, except plaintiff's claim for the trust moneys and other money she had put into his hands in trust, and a balance due her brother William for money held upon a similar trust created by Mercer simultaneously with that in plaintiff's favor, and that if any debts had existed they had been paid except as aforesaid. She charged that the executrix refused to account for these sums of money, and denied the liability of the estate for the same, and in proving the will claimed and declared that she owned as devisee the real estate specifically devised to her, but suppressed mention of the fact that a deed of the same property had been made to her. Complainant further alleged that if the deed of December, 1867, was obtained at all from the testator, it was so obtained by collusion with him and for the "fraudulent purpose of defeating the collection of the plaintiff's just and legal claim against the estate of the said testator, and to take so much of his estate as said property represents from liability to said claim," and plaintiff alleged and charged that said "conveyance was made without any valuable consideration in law;" that said deed, if made at all, was made while the trust existed and was a just claim and lien against testator's estate; and that Mrs. Strange had notice and knowledge thereof.

Plaintiff prayed that the court might adjudge and decree

Statement of the Case.

that the bequest of the life estate "be taken and held free from all and every condition thereunto attached in said will; that the said condition be decreed as void, and that the title to the life estate be absolutely vested in this plaintiff, and that she be relieved from renouncing any claim for said trust money, and that the trust estate be declared unaffected by said condition in said will and a charge upon the estate of the said testator; " that Mrs. Strange, executrix, be compelled to account; that the deed from Merrill to Mrs. Strange be set aside and be declared inoperative and void and of no effect, as against the claims of plaintiff against testator's estate; and that the sums of money found due plaintiff be made a lien on the property described in the deed to Mrs. Strange and in the will, and the decree be enforced against the same; that the cause be referred, and Mrs. Strange compelled to account as the representative of A. P. Merrill as trustee, and a suitable trustee be appointed to carry out the trust; that on the rendition of the account, the sums reported due be paid over to the trustee or to the cestui que trust, as the court should direct; and for general relief.

Mrs. Strange was personally served and answered fully. She denied the trust; alleged that the trust moneys had been paid over to plaintiff; averred that testator's personalty was insignificant; set up a counter-claim; alleged the validity of the deed of Merrill to herself; and as to the devise to plaintiff, insisted that it ought to be taken and accepted by plaintiff as a complete satisfaction of all her claims against Merrill's estate, and that there was no obstacle to plaintiff's renunciation of such claims; and further alleged that decedent was solvent and had sufficient property to pay his debts aside from the real estate conveyed to her; and also set up the statute of limitation. She prayed that the complaint be dismissed as to her individually as well as executrix, and for judgment on her counter-claim as executrix; "and that it may be adjudged and declared by this court herein that the devise to, and the provisions made for, the plaintiff by said last will and testament was and is, as it was intended by said testator to be, in full satisfaction of any and all claims and demands which the

Statement of the Case.

plaintiff had against him at the time of the death of the testator or now has against his estate, or against this defendant in her capacity of executrix of his last will and testament; that in the event that the plaintiff shall elect to take, or in the event that it shall be adjudged that plaintiff take and accept, the devise contained in said last will and testament so intended to be in satisfaction of all her claims and demands against the estate of said testator, the plaintiff in that case be required and directed by the judgment of this court to execute and deliver to this defendant, in her representative capacity, as the executrix of said last will and testament, and also to this defendant in her individual capacity, a release in due form of law of this defendant and the estate of said testator from all her claims and demands, as in said last will and testament provided, as to the testator's estate; and that in the event that plaintiff shall not elect to take or accept, nor be required to take or accept, the devise to and provisions for her contained in said last will and testament, and it be found that the plaintiff is entitled to an accounting as to said alleged trust estate as found, and to recover any amount for or on account thereof, this defendant prays that in such case" her counter-claim be set off against such recovery.

To this answer a special replication was filed.

The cause was referred on January 29, 1880, to a referee, who made his report July 1, 1880, whereupon it was ordered and adjudged:

"1st. That Anna M. Carpenter, the plaintiff in this action, do recover of or against the estate of the said Ayres P. Merrill, deceased, and of the executrix as such, or of any person or persons having the possession, custody or control of said estate or part thereof, the sum of sixteen thousand four hundred and thirty-six dollars and seventy cents, hereby adjudged to be due to plaintiff, or so much thereof as said estate or any part thereof will pay.

"2d. That all of the above-mentioned sum of $16,436.70 be paid to the said plaintiff or her said attorney, except sixtytwo hundred dollars thereof, which last-mentioned sum shall be paid to a suitable person to be appointed by said court as

Statement of the Case.

trustee for the purposes above referred to, and that such appointment be made on notice by plaintiff to defendant, William N. M. Merrill, or his attorney herein.

"3d. That the above-mentioned deed of conveyance by Ayres P. Merrill to Maria E. Strange is hereby adjudged to be absolutely null and void from the beginning, so far as the same in anywise affects the above-mentioned indebtedness of said estate to said plaintiff.

"4th. That any bequest or devise in said last will and testament of said Ayres P. Merrill contained in favor of any person or persons whatever is subject to the payment of the whole amount above-mentioned as due from said estate to plaintiff, and to interest thereon at the rate of six per cent per annum until paid.

"5th. That plaintiff have execution against the property which was of said Ayres P. Merrill at the time of his death for the amount last above-mentioned, and interest thereon until paid, besides sheriff's fees and expenses as provided by law."

On January 15, 1875, Mrs. Carpenter filed a bill in the Chancery Court of Shelby County, Tennessee, No. 1805, against Mrs. Strange as executrix, setting forth in substance the same matters as alleged in her suit in New York, and praying, among other things, that the real estate be attached and held "to secure the recovery that complainant may recover on account of this suit or any other one complainant has brought or may bring on account of the premises set forth."

The writ of attachment was issued as prayed for and levied upon the real estate described.

On

The bill was taken pro confesso April 30, 1875, and a receiver appointed. In October this decree was set aside upon the motion of Mrs. Strange and she filed a full answer. the 14th of February, 1876, the receiver was, on her motion, discharged from exercising custody and control over lot No. 59, and directed to deliver possession thereof to her, but it was ordered that the discharge should in no way affect the attachment of the property.

In January, 1881, Mrs. Strange caused the will of her father

Statement of the Case.

to be probated in Tennessee, where she had then taken up her residence, and letters were issued to her there.

On February 2, 1881, Mrs. Carpenter filed her bill in the Chancery Court of Shelby County, Tennessee, No. 3912, against Mrs. Strange as executrix and individually, and the heirs, distributees and legatees under Merrill's will. This bill set forth the death of Merrill in New York in November, 1873, testate; the probate of the will in February, 1874, by Mrs. Strange; and its probate in Tennessee in January, 1881; and that complainant had "never renounced her claim upon the testator's estate and has never claimed anything under said will or received anything." She averred that she was a creditor of said estate on account of trust funds received by Merrill in his lifetime, and that the claim had been reduced to judgment in a suit brought against Mrs. Strange, as executrix, in the Supreme Court of the county and State of New York, which judgment was for the sum of $16,436.70. A certified copy of the record in the New York case was made an exhibit to the bill and prayed to be taken as a part thereof.

It was then stated that Mrs. Strange became possessed of Merrill's property soon after his death; that complainant, being informed that Mrs. Strange had qualified as executrix in Tennessee, filed her bill, No. 1805, against her as such executrix to recover the amount due from Merrill, and among other things sought to attach the real estate of the testator, and that it was attached and a receiver appointed; that by the said proceedings she sought to impound the real estate and hold it subject to the judgment sought to be recovered in New York against the estate and Mrs. Strange, who was a nonresident of Tennessee, and said suit No. 1805 was ancillary and auxiliary to the suit in New York; that judgment was recovered in the latter; and that there was no need of proceedings to recover judgment in No. 1805.

Complainant further alleged that Mrs. Strange had been collecting rents of all the real estate in Tennessee, and as to lot No. 59, the New York court, in the suit referred to, had declared the deed to her of that lot fraudulent and void. Complainant reiterated that she was a creditor of the estate

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