Phoebe Ann, executrix of Otis, the son of Daniel Carmichael, brought .this action in the supreme court, against Eliza, executrix of said Daniel Carmichael, the father, to compel an account and payment of a share of the estate claimed under the will of Daniel.

Daniel Carmichael died September 3, 1849, leaving the defendant, his widow, and six children, him surviving. The eldest of them (Otis) was the child of a first marriage. He did not live with his father, but lived in Middletown, in this State, where his father provided for him. .At the time of his father’s death, he was an invalid, and he died about two years afterward. He married the plaintiff soon after his father’s death, the engagement having been made prior to that event; he left one child. Daniel Carmichael, shortly previous to his death, and while suffering from his last sickness, made a will, of which tlie following is a copy, omitting formal parts:

“After the payment of all my debts, I give, devise and bequeath all and singular my estate and property, of whatsoever, kind, and wheresover the same may be situate, unto my beloved wife Eliza, for and during the term of her natural life; and from and after her decease, then I give, devise and bequeath the same unto my children, who may then be living, in equal parts, share and share alike — it being distinctly understood that the part or share of my son, Otis Carmichael, under said division or appropriation, shall be held and invested by my surviving executor, his heirs and assigns, in . trust, to keep the same well and securely invested during the lifetime of my said son, and to pay over to him, my said son, the rents, income and interest thereof as received, and to dispose of and apply the principal of said share as my said son may by his last will and testament, or any instrument in the nature thereof, direct, limit and appoint. And in default of such direction, then to the right heirs of my said son, under the intestate laws of New York.”

The testator appointed his wife Eliza, and Isaac Otis, executrix and executor.

The will was admitted to probate in October, 1849, before the surrogate of Broome.

Otis Carmichael, previous to his death, made a will, by which he gave to his wife (the plaintiff) the annual sum of five hundred dollars during her natural life; and he further gave unto her, in trust, for the maintenance and education of his son, all the annual proceeds of his real qnd personal property, until his son should attain the age of twenty-one years. He secondly devised and bequeathed unto his son, all his real and . personal property, subject to the annual payments given to his’ wife.

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