Will of Johannes Enders


Schoharie County NYGenWeb Site

Submitted by Fred Swart

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]

  1. 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
  2. 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
  3. described parcel of land & land of John Enders & North by lands of
    Jacob H. Houck, containing 8 acres.
  4. 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
  5. 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
  6. 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
  7. "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
  8. "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".
  9. (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 &

  10. 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
  11. 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.
  12. 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
  13. 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,
  14. 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

  15. 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:

  16. 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
  17. 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
  18. 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
  19. 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.
  20. 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.

  21.                                                                       Jacob E. Mann, residing at Schoharie N.Y.
    Lavinia Mann do. do.


  22. 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.
  23. 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,

  24. 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

  25. 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.

    ---------------------------- 

  26. 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
  27. 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

  28. 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
  29. 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
  30. 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 &

  31. 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.

  32. 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
  33. 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

  34. 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
  35. 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
  36. 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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