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MACKLEM FULLER AND OTHERS. <5Z<-*c.<-*c«- named being infants under the age of 21 years,rt.<^V ^ Q-^i^tc-t^jL /^jutAe-t' f Defendants. Cm- OF London : ^^ ^"^^ /^<^eL v) To the Honorable the Judges of the Court of Chancery, O- it'- c <' rf. JL V THE BILL OF COMPLAINT Of Sutherland Mackiem, of Clark Hill, in the Township of Stamford, in the County of Welland, in the Province of Ontario, Esquire, the above named Plaintiff, HuMliLV SlIKWKTH : I. At the time of the death of the Honorable Thomas Clark, hereinafter mentioned, which took place in or about the year of our Lord 1836, he and Samuel Street, hereinafter mentioned, were seized, in fee simple, as tenants in common, of those certain parcels or tracts of land situate, lying and being in the said Township of Stamford, containing by admeasurement 300 acres, more or less, known as the " Bridgewater Farm," being composed of Lots Number iqi, 103, and the Broken Fronts adjoining Lots Number 191 and 192, pai ts (jf Lots ^HII Number 192, 224 and 223, in the said Township of Stamford, contain- _ ing about 300 acres of land, be the same more or less, and butted \ \wAl t^x^t>\At<'>/i(t^CfuA/^ bounded as follows, that is to say : Commencing at the south-west angle of the Military Reserve on Lots Number 192 and 224, bearing north 6S degrees west, or whatever course the south-west boundary line of the said Military Reserve may be at the distance of 900 feet from the south-west angle of the picketing around the King's Store- Ipl house and Wharf, on the west sitlc of the River Welland ; thence on ''l^' • f thf same course, (ir in the same direction, 750 feet, more or less, to the north-west anjijie of land conveyed by Benjamin Hardison to James Macklem. on the eleventh clay of August, in the year 1806; thence southerly, to form a right angle with the said course, 8 chains, more or less, to the south-v.est angle of the same ; thence east:3rly parallel with the said first mentioned course, more or less, to the north-west angle of land conveyed by thi; said M-njamin Hardison to John I'^anning by Indenture, the first day of March, 1810, being at the distance of five chains from the easternmost angle of the same, on the shore of the River W'elland aforesaid ; then southerly again, forming right angles with the said first m:^ntioned course, two chains, more or less, to the south-west angle of the same ; then easterly again as a parallel with the said first mentioned course, more or less, to the River W'elland ; thence westerly, against the stream, following tiie several windings of the said river, more or less to within one chain of the south-east angle of Lot Number 222, bein}.; the third lot on said river; thence north to the south boundary of i^ot Number 193 ; thence west to within one chain of Lot Number 194; thence north to Niagara River; thence along the water's edge, against the stream, following the several wind- ings of the said river to a point on the north-west boundary of the Military Reserve bearing north 22 degrees east from the place of beginning, or whatever course will form right angles with the said first mentioned course, thence more or less to the place of beginning : save; ami except those certain portions thereof lying within tiie limits of the \' illage of Chippawa in the said Township of Stamford. And the said tiie Honorable Thomas Clark and Samuel Street were also seized in fee simple, as tenants in common, of those certain other parcels or tracts of land and premises situ.ite, lying and being in the said Township of Stamford, known as the " IVll l-'arm," containing by admeasurement 400 acres, be the same more or less, being composed of Lots Number 190, 194, 22 r and 222, and butted and bounded as follows, that is to say : Commencing on the Niagara River, at the water's edge on the limit bcitween Lot Number 175 and said Lot Num- ber 190, thence west 50 chains, more or less, to the allowance for road in the rear of said lots ; tliencc south 41 chains, more or less, to Lot 219; thence east 40 chains, more or less, to the limit l)etween Lots Number 220 and 221 ; thence south 54 chains, more or less, to the River W'elland ; thence along the River W'elland down stream 42 chains, more or less, to the south-west angle of Lot Number 223 ; thence north 51 chains, more or less, to Lot Number 193 ; thence west 30 chains, more or less, to the south-east angle of said Lot Number 194; thence north 41 chains, more or less, to the Niagara River; and thence northerly down tiie stream, along the water's edge, to the place ( • f of beginning, including the allowances for roads: And the northern part of Lots Numbers 220 and 219 in the said Township of Stamford, butted and bounded as follows, that is to say : Commencing at the northernmost limit of said Lot Number 220, at the distance of 50 links from the north-east angle thereof; thence west 29 chains and 68 links more or less, to the land of the Widow Glasgow ; thence outh five chains and nine links ; thence east 29 ch.iins and 68 links ; and thence north five chains and nine links, more or less, to the place of beginning. Each of them, the said the Honorable Thomas Clark and Samuel Street being entitled to an undivided moiety of all the said lands. 2. The said the Honorable Thomas Clark being so seized of an undivided moiety of the said lands, departed this life in or about the year of our Lord 1836, having first duly made and published his last Will and Testament in writing bearing date on the twenty-ninth day of January, in the year of our Lord 1831, and executed and attested in such manner as by law was then required for rendering valid devises of real estate, whereby, after certain legacies therein mentioned, he devised and bequeathed the whole of his residuary estate, both real and personal, unto his two sisters, Jean Clark, of Buccleugh Street, in the Town of Dumfries, in Scotland, Spinster, and Helen Howat, of Mabie, near Dumfries aforesaid, in equal proportions, as tenants in common. 3. The said Samuel Street departed this life in or about the year of our Lord 1844, being then .seized in fee simple of the remaining undivided moiety of the said lands, having first duly made and pub- lished his last Will and Testament in writing, bearing date on the thirty-first day of July, in the year of our Lord 1839, and executed and attested in such manner as by law was then required for rendering valid devises of real estate, whereby he devised unto his son, the said Thomas Clark, and his heirs, with other real and personal estate, his said undivided moiety of the said lands, upon trust, to divide the sLme into as many parts and shares, as nearly equal in value and amount as might be. as the said testator. Samuel Street, should leave children him surviving, who should be living at his decease, and who should attain the age of twenty-one years, and one share more. And upon further trust to appoint and .select the several parts or shares which the said Thomas Clark Street, and the said other children of the .said testator, Samuel Street, should take, and to distribute and appoint the •said shares as follows, that is to .say : The .said Thomas Clark Street two shares, and to each of the said other children of the testator, one share each, to have and to hold the said shares unto all the said .several children of the said testator, and their several heirs for ever. 1 f 4 The said Thomas Clark Street accepted the trusts of the said Will of the said testator. Samuel Street, and entered into possession of the said undivided moiety of the said lands as trustee under the said Will. c The said Jean Clark departed this life in the month of May in the year of our Lord .854, having first duly made and published her last Will and Tesrament in writing, whereby she devised unto Geor• vlnuv ,>( tlic Will ol' tlu' said Samm.-l Street deceased, the said Thomas Clark Street became entitled to two undi vided sixth parts, to his own use and benefit ; and the said Cynthia. Jiiha Ann. Klizabeth and Caroline, became e(|iiitably ent itled each to one undivitied sixth part of th.: moiety of the saiil lands~ which the saul Sanu.el Str.et was entitled at the time of his death, but no division ot the same has ever taken plac(^ and under and bv virtue of the conveyance m the eiyluh paragraph mentioned, the said Thomas I .ark .Street became •■ntitled to the whol,. of the remaining moiety of tlU! said lands to his own use and IwMiefit. 1 2. .Aft.T the .leath ,.•• the said Samuel Street, tiie saino) tl^.rn^iie_of the sud_detend:,nts. Josiah Hurr I'lumb "uul 1,/abe th Street, th.. s.ud^H.-n.lanr Josiah Burr Himd^ : -mHrngs t otht^T iliirp dulcm^^ -'■<' :ili-"±s:ClarrT^etlh^;^ -ijlicj^ajdK^^ in th,; sai.l landiT^d^^ilTdliH^^^^.;;^^ ^Vitlistmulmg h,T_o2vert^ hel.l .md ei^.ved b^'h.T the said" IjHxabeth. for her M.parate use .m.l ben.-fit. .>r to s.k ^ uses as sh. ^I'-i^ii'.'. ""'""'''''""''i'lg Ik-T c.)v.Tturi.. bv a nd tes tament app.)int 'v any cleed or by her last will '^■ 1 h.- sai.l idixabeth I'hnnb .l,.,,art,-.I this life on ,.r about the ^^'•"t.-.h .iay„l l)ec,.ml,..r, A.M. , ,S6S, leaving her survivin-^ \ur l'nsb.in. . the .l..t..n.I,uu |..s,,,h Iturr I'luinb. ,m.l l..avin, also her sur- viving her ..hil.l,-..n an.l hm. ,a law. ,1,.. .l.l..n.lants'Th.,mas Str.... l-m-. •n..l..nck Plumb, I .nn.„n rh,,i-l,.s I'lumb. f.li.abeth .Str.-et H"ml'. Marv ( „.|-,n,.l.. |-ln,nl., ,uul .\n„a Isabel Hurr I'lumb the last four of whom are infants under the age of 2 i years, and leavin;j her last wil l and testa ment in writing, duly executed and attest ed in >uch manner as by law is re()uired for renderin g valid devises of real estate, in the words and figures follow i ng, that is to say :— In the n ame of C^o d. A men. I, Elizabeth Plumb, o f N^iagiira, do make this my last w ill. 1 give, devise ant! be(}ueath all the property, real and jjersonal: ^f or to which I shall die p ossessed or entitled to my brother. I'homa s * dark Street, his heirs and assigns, u pon the following trusts : To pay the income ari sing fr(^m my said estate to my dear hus - band during his natur al life for the b enefit of our childre n : to sell and dispose of and inves t such part or p arts of my saiti estate as my said husband shall from tim e to ti me by any writing unde r his hand direct, and to app i) -ny portion of the said estate as my said husband shall direct in writing ; to make such disposition ofm) saiirTJstatc remaining at the time of my luisb md's death as he shall h\ his last will dircit ; to transfer and assign to my said dear liusl)an(i ahsoiutelN for his own use and benefit, freed and discharged from all trusts what- ever, the whole of my said estate whenever my said hus ban d shall req uire liini liy (U-vd to 111. ike sutli assignment. I appoint my said clear luishand and my s.tid brother my cxecu tors. (signed). K hzabeth Plumb. Signet!, sealed, publishetl and declared in the p resence of us, w ho at her reques t and in the presence of each other, have subscribed ou r n ames as witnesses hereto, the fourteenth day of November. A.D. 1S68 . (sig ned). William M cMurray. (signed), Henry I'affard. 14. ilie said Thomas Clark Street dei)artt:ti this life on or about the sixtli da\ ot .S(-pteiiil)er, in tlie \ear ot our Lonl 1S72, ii,i\ing first duly made and published his last Will ami Testanunt in writing, bearing date on the second day of September, in the year of our Lord 1S72. and executed and attested in such manner as by law is reijuired for render- ing valiti devises of real estate. . whereb)' amongst other things he devised his own biMieficial interest in the said lands unto his mother .Abigail H. Street, for and during tlie term of her natural life, ami from and after the decease of the said Abigail H. .Street, unto your com- plainant and his heirs, subject to a jjrovision, that in case the said .Abigail II. .Street should die before your complainant should attain •!' the a^t; of ?3 years, tlien that your complainant should not take pos- session of, or have charge of, the saitl lands until he should attain the age of iT, years, and that in the meantime the executors and trustees named in the said Will of the said testator, should occupy and manage the same. 14 (ir). T he said Will of the said Thomas Clark Street contained no devise of or affecting any real estates which were vest ed in the said test'Jtoras trustee, and the legal estate in all the real e states vested in him in fee at the time of his death as trustee, includintr the undivided share s 111 the lands in the first paragr a ph of this Bill mentioned, of the defend ants Cynthia buller, Juli a Ann Macklem, and of the six children and heirs at law of the said Elizabeth Plumb, in the thirteenth para- graph named, descended to the def endants C y nthia Fu ller. Juliii n Macklem. Caroline Becher, Thomas Street Plumb, Freder ick Plumb. Duncan Charles Plumb. Kli abeth Street Plumb. Mary Ger- trude Plumb, and .Anna Isab el Burr Plumb, is heirs at law of the said Thomas Clark .Street, dec ea sed. 15. L'pon the death of the said testator, Thomas Clark Street, his said moth 'r took and possessed his interest in the said lands until the time of her death, which took place on the twelfth day of .Septem- i)er, in the year of our Lord 1S72, and thereafter and until your com- plainant attained the said age of 23 years, Richard Miller and the defentlant, Thomas Brock !*"uller, the executors and trustees named in the saiil Will of the said Thomas Clark Street, took and possessetl hi s interest in the said lanvls in iccordance with the provisions thereof. 16. N'our complainant attained the age of 23 years upon thi- twenty-sixth day of June, in the year of our LonI 1876, and thereupon tiUereil into ami has continuously remained and now is in possession of liis undivided shart; of the saitl lands. 17. Your complainant submits that he 's entitled, untler the circumstances hereinbefore set forth, as owner in fee, to 7 e«]iial undivided tenth parts of the said lands; the defendant, Cynthia Fuller. is equitably entitled, as owner in fee, to 1 e(|ual undiviile-J tenth part of the said lands, subject to the estate therein, to which the said defendant, Thomas Brock '.•'uller, is entitled, as being her husband ; the defenil- ,uit. Julia Ann .MacklcMn, is e(| uitably entitled to 1 etjual undivided tenth part of said lands, and the defendants. Josiah Burr Plumb, 'Thomas .Street Plumb, l-rederick I'luinb, Duncan Charles j'lumb, i*^liz;ibelii 8 Street Plumb, Mary Gertrude Plumb, and Anna Isabel burr Plunili some or one of them is or are eq uitably entitled to the remaining i equal undivided tenth part of said lands. iS. The defendant. Caroline Becher, is the wife of th e dL:fend - ant, Henry Corry Rowley Becher. YoiIK COMPLAINANT T H K k I, I'O K K l'RA\ S : 1. That the s(\(Mal shares and interest of your com- plainant and of tiic defendants may be ascertained and declared by this Honoral)le Court, am! that the said lands may be partitioned amonj^st your com])lainant and the said defendants, according' to their respective shares and interests. 2. I'hat your complainant ma\ l)c paid his costs of this suit. 3. That for the purjjoses aforesaid, all proper directions may be given and .iccounts taken. 4. That y