34 N.Y.S. 511 | N.Y. Sup. Ct. | 1895
The complaint alleges that on Jan. 12,1881, the plaintiff was the husband of Elizabeth M. Cobb; that he on that day conveyed to her certain real estate in Monroe county, in consideration of which she agreed to make her irrevocable will, in and by which she should devise the premises conveyed and their increase to her husband; that she did on the same day duly execute her will in accordance with said agreement, and delivered the same to the plaintiff; that she died Aug. 23, 1894, leaving only the said property and the produce and income of the same; and that the defendant Hanford has filed with the surrogate of Monroe county his petition, reciting that a few days before her death Mrs. Cobb made another will, dated Aug. 18, 1894, whereby she attempted to make a different disposition of the property, in which will she named the defendant Hanford as the executor thereof, and constituted and appointed him as trustee of an undivided half interest in the property for the plaintiff. The plaintiff asked for judgment that the defendant be enjoined from proving said last will; that the will of 1881 be decreed and adjudged to be the irrevocable last will, and as such entitled to probate; and that the plaintiff be adjudged to be the owner of said property. The defendant Han-
That, however, is not all the relief asked for. The plaintiff is not to be denied the relief to which he is entitled for the reason that he has claimed too much in his complaint The principal question here presented is whether the defendant Hanford can be prevented from placing a cloud upon the plaintiff’s conceded and unquestionable title to the property in question, and from creating a charge thereon, and from taking the same into his own custody and control against the consent of the rightful owner, and from raising an