LAWSUIT INVOLVING THE
LAST WILL AND TESTAMENT OF JOHANNES ENDERS
SUPREME COURT,
Schoharie County.
Jennet Dietz, William F. Shout, and Christina his
wife, Jacob M. Shout and
Polly his wife, Dorothy
Ann Saddlemire, Rebecca Olmstead, John Olm-
stead,
Washington Swart and Jennet his wife.
against
Bartholemew H. Swart and Elizabeth his wife,
Daniel Swart, Lasell Swart,
George Culver and
Sarah his wife, John Culver and Isabella his wife,
Avery Culver and Mary his
wife, Josias Culver,
Maria Culver, Lucinda Culver, Arvilla Culver, Julia
Murphy, Jennett Wilber,
Peter S. Swart, Jr. and
Marion M., his wife, William H. Lee, Mary Eliza-
beth Smith, Jacob M. Swart
Enders, Florence
Lillian Lee, Julia Swart Lee, and William Henry
Lee, Jr. & Sarah
Culver Watson [added]
To the above named defendants:
You are hereby Summoned to answer the Complaint of the above named
plaintiffs, a copy of which is hereto annexed, and to serve a copy of your
answer on me at my office in the village of Schoharie in said county, within
twenty days after service of this summons, exclusive of the day of service, and
if you fail to answer said Complaint as hereby required, the plaintiffs will
apply to the court for the relief demanded in the complaint.
Dated Schoharie July 6th 1874
/S/ Ralph Brewster
Atty for ptffs.
(on reverse, in a different hand:
David Swart Born 1776 father of Martin Swart Tunis Swart Peter Swart Theodore
Swart Martin Swart Rufus Swart
Bartholomew Swart David Swart Oliver Swart)
Fol. 1
SUPREME COURT,
Schoharie County.
Jennet Dietz, William F. Shout, and Christina his
wife, Jacob M. Shout and
Polly his wife, Dorothy
Ann Saddlemire, Rebecca Olmstead, John Olm-
stead,
Washington Swart and Jennet his wife.
against
Bartholemew H. Swart and Elizabeth his wife,
Daniel Swart, Lasell Swart,
George Culver and
Sarah his wife, John Culver and Isabella his wife,
Avery Culver and Mary his
wife, Josias Culver,
Maria Culver, Lucinda Culver, Arvilla Culver, Julia
Murphy, Jennett Wilber,
Peter S. Swart, Jr. and
Marion M., his wife, William H. Lee, Mary Eliza-
beth Smith, Jacob M. Swart
Enders, Florence
Lillian Lee, Julia Swart Lee, and William Henry
Lee, Jr. & Sarah
Culver Watson [added]
- The complaint of the above
named plaintiffs respectfully shows to this court, upon
information & belief, that Johannes Enders, late of Schoharie
in said county, deceased, was in his life time & at the time of his
death, seized in fee simple of the following described real
estate: 1st. All that certain piece of land situate in the town of
Esperance
in said county, Bounded East by the center of the highway, called the Ferry
Road, South
- by land of Jacob h. Houck, West of land of William F. Shout, North by land
of John Enders, containing 8 94/100 acres ~ 2nd. All that certain
other
parcel of land adjoining the above described, Bounded West by the center of
said road, South by land of Jacob H. Houck, East by lands of Samuel
Wright & land formerly of Phillip Bergh dec. & North by land of John
Enders,
containing 18 1/10 acres ~
3 that certain other piece of land situate in Esperance aforesaid,
bounded Southerly & Easterly by lands of Samuel Wright, West by the last
above
- described parcel of land & land of John Enders & North by lands of
Jacob H. Houck, containing 8 acres.
4th.. Also that other parcel of land in Esperance aforesaid
Bounded
Northerly and Easterly by Paul Halleck Spoutherly by lands of Henry Dunbar,
& Westerly by land in possession of George Taylor, containing 21 acres ~
5th. Also that other parcel of land in Esperance aforesaid,
Bounded Westerly
& Northerly by land of Henry Dunbar, Easterly by said Dunbar & Isaac
Hawes & Southerly by land of Isaac Hawes, containing 21 12/100 acres
- 6th. Also that certain other parcel of land in Esperance
aforesaid,
Bounded North & East by land of William F. Shout, South by lands of
Delilah
Gardiner & West by lands of Delilah Gardiner & land of William J.
Markle
containing 14 � acres ~
7th And that certain other parcel of land in Esperance aforesaid
Bounded Northerly by Schoharie Creek, Easterly by lands of Henry Dunbar
Southerly by land of William F Shout & Westerly by lands of Martin L.
Kilmer,
containing 13 acres ~
That on or about the 9th day of March 1825. the said
- Johannes Enders made and executed his last will and testament,
bearing
date on that day, containing a devise to his
daughter Maria, in the following
words, viz :
"Secondly, I give & devise unto my daughter Maria, wife
"of
John George Kniskern, the equal undivided half of
"all my lands in Lot
No.135 in a patent granted to
"Myndert Schuyler & others, situate at Schoharie in the
"county of Schoharie, Also Lot No.11. & the equal undivided
"half of Lot No.18 & the equal and undivided half of all my
"
land in Lot No.2. in a patent granted to Augustus Van
- "Cortlandt , situate at Schoharie aforesaid - To have
"& to hold the same to her, her heirs & assigns forever,
Subject
"to the estate herein before given to my said wife, and
"Subject also to the condition hereinafter mentioned."
That said
last will & testament also contained a
condition, in the following
words, viz:
"In the event however that my said daughter Maria,
"wife of the said John George Kniskern, should die without
"issue living at the time of my death, then it is my
"will that the estate hereinbefore given & devised to her
- "shall on her death go to & vest in my other children
"living at the time of her death, & to the children of such
"of my
children as may be dead at the time of her
"death, in like manner as they would take the same
"by law, as
heirs of my said daughter Maria".
(2) That shortly after making his last will and testament
as aforesaid, the
said Johannes Enders died, leaving
the same in force and unrevoked.
That after the death of the said Johannes Enders, and on
or about the 4th day
of Apri1 1825. the said last will &
- testament was duly proved before the Surrogate of the
county of Schoharie, as with a will of both real and personal property,
and
on the same day duly recorded (in Book 6. of the wills page
109) in the office
of the said Surrogate, as by reference
thereto, will more fully appear.
That the said Maria Kniskern remained childless
during her life and died at Esperance in said county on or
about the 18th day
of May 1874, without issue living at
the time of her death.
That the only other children of the said Johannes
- Enders, at the time of making his said last will & testament,
or at
any time, were Elizabeth, wife of George W. Mann,
Christina, wife of Josias Swart & Dorothea, wife of Jansen
Olmstead; all of whom died before the said Maria Kniskern.
That the several parcels of land, first described in this complaint,
are the
same lands devised to the said Maria Kniskem,
in & by the said last will & testament of the said Johannes
Enders,
And were held by her in severalty at the time
of her death.
- That on the 13th day of December 1852, Jacob G. Mann
Peter G. Mann &
John E. Mann, the three sons of the said
Elizabeth Mann, duly executed &
delivered to her a quit
claim Deed, of which the following is a copy. viz:
"Know all men by these presents, that we Jacob G.
Mann, Peter G. Mann & John
E. Mann, of the county of
Schoharie, for & in consideration of $50. to us in hand paid by
Elizabeth
Mann, of the town of Schoharie, at or before the
ensealing and delivery of these presents, the receipt whereof is
- hereby
confessed, have remised, released and forever quit
claimed & by these
presents do remise, release & forever quit
claim unto the said Elizabeth
Mann & to her heirs and
assigns forever. All our rights title & interest of, in & to all
these certain lands, situate in the town of Esperance
& Schoharie, devised
unto Maria Kniskem, wife of
John George Kniskem, by a certain will heretofore made
by Johannes Enders,
deceased, by a reference to said will
duly recorded in the Surrogate's office of Schoharie County,
a particular
description of said premises will appear,
- To have & to hold the said released premises, unto the said
Elizabeth
Mann, her heirs and assigns forever.
In witness whereof, we have hereunto put our hands
& seals this 13th
day of December 1852.
Jacob G. Mann L.S.
Peter G. Mann L.S.
John E. Mann L.S
State of New York \
Schoharie County / : I certify that on the 13th day of
December 1852, before me appeared Jacob G. Mann, Peter G.
Mann & John
E. Mann, all to me personally known to be
- the persons described in & who executed the above Deed &
severally
acknowledged the execution thereof.
Peter Mann Justice of the Peace
That on or about the 4th Day of May 1854, the said Elizabeth
Mann duly made & executed her last will & testament, bearing
date
on that day, of which the following is a copy. viz:
"Know all men by these presents, that I, Elizabeth Mann
"of the town & county of Schoharie, of sound mind & memory,
but "deprived of sight, do make, publish & declare this my last
"will & testament, in manner following:
- First, I give and bequeath to my daughter Jennett Dietz, wife
of
John Dietz, and my grandchildren Eliza M. Enders, wife of
Seneca Enders, Jennett Wilber, wife of Addison Wilber, Peter
Snyder Swart & Julia Swart, children of my daughter Elizabeth
Swart deceased & wife of Jacob M. Swart, their heirs and assigns
forever,
the one undivided one third part of all that tract on
parcel of land situate in the County of Schoharie, devised unto
Maria
Kniskern, wife of John George Kniskern, by a certain
will, heretofore made by
Johannes Enders deceased, bearing
- date March 9th 1825. & recorded in the Surrogate's office
of the
County of Schoharie April 4th 1825, a reference being
thereto had a particular
description of said premesis will
more fully appear. By which said will of Johannes Enders
the portion devised to the said Maria Kniskem, wife of John
George Kniskern, was to descend to the children of said Johannes
Enders,
living at the time of her death, in case the said Maria
Kniskern should die
without issue. And the portion to be
received by me upon her decease without
issue, is hereby
- intended to be devised to my said daughter Jennett Dietz
and my said
grandchildren aforesaid as follows. Viz: The
one half to my daughter and the remaining one half to my said
grandchildren, share & share alike.
Second, I give and bequeath to my daughter Jennett Dietz & to my
grandchildren aforesaid & to their heirs and assigns forever,
all my beds, bedsteads, & bedding also all my coverlets, blankets,
sheets, pillows & pillow cases, also all my clothing, looking
glass, six
silver teaspoons, in fine all my personal
property that may remain at my decease; the said Jennett
- to take one half and the remaining one half to be equally
divided between
my said grandchildren.
But in case my husband George William shall survive
me, it is my will &
desire & I order & direct my said
daughter & grandchildren, and I hereby give & bequeath
to him during his life & for his own use one bedstead, bed & the
necessary bedding for the same - he my said husband to
select from among my beds
& to retain as much as he
may deem necessary for his comfort &
convenience.
- And lastly I constitute and appoint my daughter Jennett
Dietz sole
executrix of this my last will & testament, hereby
revoking all former wills
made by me made.
In witness whereof I have hereunto set my hand &
seal the 4th day of
April 1854.
her
Elizabeth X Mann L.S.
mark
The above instrument was at the date thereof signed,
sealed, published & declared by the said Elizabeth Mann
as & for her last will & testament, in the presence of us, who at
her request & in her presence & in the presence of each other
have
subscribed our names as witnesses thereto.
Jacob E. Mann, residing at Schoharie N.Y.
Lavinia Mann do. do.
That the said Elizabeth Mann departed this life on or
about the (blank) day
of April 1865. without having
revoked her said will - and that said last will & testament
has been duly proved before the Surrogate of Schoharie County.
That Eliza M.
Enders, a grandchild of said Elizabeth
Mann, mentioned in the last will &
testament of the said
Elizabeth Mann, afterwards intermarried with William H.
- Lee, and on or about the 6th day of December 1871, duly
made &
executed her last will & testament, bearing date on
the last mentioned day, of which the following is a copy, viz:
"I Eliza
Maria Lee of Syracuse Onandaga County
& State of New York, being of sound mind & memory, do make,
publish
& declare this to be my last will & testament, in
manner following, to
wit:
First I give & bequeath unto my husband William H. Lee,
the
use of my personal and real estate or interest in real estate,
- to have & to hold the same for himself, during his natural life,
Second
I give & bequeath the reversion or remainder of my
personal & real estate, from & after the decease of my said
husband
William H. Lee, to my said children, Mrs Mary
Elizabeth Smith, Jacob M. Swart
Enders, Florence Lillian
Lee, Julia Swart Lee & Wm Henry Lee Jr to be divided between
them share
& share alike, to have & to hold the same, their
heirs and assigns
forever .
I do hereby appoint my husband Wm H. Lee the
executor of this my last will
& testament.
In witness whereof I have here unto subscribed
-
my name & affixed my seal the 6th Day of December 1871.
Eliza Maria
Lee, L.S.
The above written instrument was
subscribed by the said
Eliza Maria Lee in our presence & acknowledged by her to each
of us
& she at the same time published & declared the above
instrument to be her last will & testament & we at the testator's
request & in her presence have signed our names as witnesses
hereto
& written opposite our respective places of residence.
Francis H. Loomis
Syracuse N .Y .
Josephine S. Loomis Syracuse N.Y.
----------------------------
- That the said Eliza M. departed this life in January 1872,
without having
revoked her said will, And that she left
surviving her the following named
children, viz:
Mary Elizabeth, wife of Edward L. Smith, Jacob M. Swart Enders,
Florence
Lillian Lee, Julia Swart Lee & William Henry Lee
Jr. - The three last named
being infants under the age of
21 years.
That the said last will & testament of the said Eliza Maria
Lee was duly proved before the Surrogate of Onondaga County
- N .Y .on the
7th day of March 1872. & has also been recorded
in the clerk's office of
Schoharie County.
That the said Christina Swart (sister of the said Maria
Kniskern) in her life time had the following named children.
viz: Bartholomew
H. Swart, Washington Swart, John E.
Swart, Elmira, wife of Silas Culver &
Daniel Swart.
That prior to the death of the said Maria Kniskern,
the said John E. Swart died, leaving the defendant [Myron] Lasell
Swart his
only child & heir surviving him.
Also before the death of the said Maria Kniskern,
the said Elmira, wife of
Silas Culver died, leaving
- surviving her, the defendants, George Culver, John Culver,
Avery Culver,
Josias Culver, Maria Culver, Lucinda Culver,
Julia Culver & Sarah Culver,
her children & only heirs
at law.
That the said Dorothea Olmstead, sister of
said Maria
Kniskern, left surviving her at the time of her death,
the plaintiffs
William F. Shout, Jacob M. Shout, Dorothy
Ann Saddlemire, Rebecca Olmstead &
John Olmstead, who
are the only surviving children & heirs at law of the
said Dorothy Olmstead deceased.
And the plaintiffs allege that by the statute
of
title to real property by descent, and the several wills
above mentioned and set
forth, the several parties to this
- action are seized of & entitled to
the aforesaid lands and
real estate, as tennants in common, in the proportions
following, viz:
The plaintiffs Jennett Dietz, as heir and devisee of the said
Elizabeth Mann deceased, the equal and undivided sixth part
thereof, The
plaintiffs Jacob M. Shout, William F. Shout,
Dorothy Ann Saddlemire, Rebecca
Olmstead & John Olmstead,
children of the said Dorothea Olmstead deceased,
each the equal
undivided fifteenth (1/15) part thereof.
The plaintiff Washington
Swart & the defendants
Bartholomew H. Swart & Daniel Swart, as children
of said
- Christina Swart deceased each the equal undivided fifteenth
(1/15)
part thereof. And the said defendant Lasell Swart,
the only child & heir at
law of the said John E. Swart,
deceased, the equal undivided fifteenth (1/15)
part thereof.
The said defendants John Culver, George Culver,
Avery Culver, Josias Culver, Maria Culver, Lucinda
Culver, Arvilla Culver & Sarah Culver, children of the
said Elmira Culver
deceased & grandchildren of the
said Christina Swart, deceased, each the equal undivided
one hundred
twentieth (1/120) part thereof.
And the defendants Mary Elizabeth Smith, Jacob M.
Swart Enders, Florence
Lillian Lee, Julia Swart Lee &
- William Henry Lee Jr. each the equal
undivided
one hundred twentieth (1/120) part thereof, subject to
the life interest of
the defendant William H. Lee, as
devisees & heirs of the said Elizabeth Maria Lee, deceased.
The
defendants Jennett Wilber, Julia Murphy
& Peter Snyder Swart Jr., grandchildren & devisees of
the said
Elizabeth Mann, deceased, each the equal
undivided twenty fourth (1/24) part
thereof.
The parties to this action own no other lands
or real estate, than those above described as tenants in
common.
- The plaintiffs are desirous that a partition or
division may be made of
said lands and real estate,
among the several parties seized of or entitled thereto,
according to their
respective rights, estates & interests
therein - Or in case the same cannot
be divided
among the owners thereof, without material injury
to the parties interested therein, then that the same may
be sold & the
proceeds thereof divided among such
parties, according to their respective rights and interests.
But inasmuch as
the said Florence Lillian Lee,
Julia Swart Lee and William Henry Lee Jr., three of the said
- defendants, on account of their respective minorities, are
severally
incompetent to make a voluntary partition
of the said premise, which will be valid, or to consent to
the sale thereof,
so far as they are severally interested
therein; and as the plaintiffs are
advised that no valid
partition, division or sale thereof can be effected without
the aid or
imposition of some court of competent
jurisdiction.
The plaintiffs therefore demand the judgment of this
court, and that a guardian
ad litem be appointed for
the said Florence Lillian Lee (who was 14 yrs of age January
- 5, 1874) Julia Swart Lee (10 years old February 14, 1874) &
William
Henry Lee Jr. (who was 7 years old 15th March 1874)
respectively, by whom they
may severally appear in this
action & put in their answers to the complaint - and who
may defend and
protect their several rights & interests
in the premises - And partition
& division of the above
described lands & premises may be made, according to the
course & practice of this court & the statute, in such case
made
& provided by commissioners to be appointed for
- that purpose - And in
case it shall appear that
partition thereof cannot be made without material injury
to the rights of the parties interested therein, then that the
said premises may be adjudged & decreed to be sold under
the direction of
this court -And the proceeds of the sale,
after paying the costs & charges in this action, be divided
among the
said parties according to their respective rights
& interests therein -And that, to that end, the rights & interests
of
the parties interested in the premises or the proceeds
- thereof, may be ascertained & declared by the said judgment
of this
court.
And that the plaintiffs may have such other
relief or such further relief in
the premises as the
nature of the case may require.
/S/ Ralph Brewster
Atty for Plaintiffs
Schoharie County ss:,
being duly sworn says he is one of the plaintiffs in
the above entitled action, that he has heard the fore-
going complaint read & knows the contents thereof, that
the same is true
of his own Knowledge, Except the
matter therein stated on information & belief & as to
those matters
he believes the same to be true.
Sworn before me the
day of 1874
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