Hyperlawhypertext legal database In re Foley's Estate 58 N.Y.S. 201

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In re Foley's Estate

58 N.Y.S. 201 Court N.Y. Sur. Ct. English

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p. 201
(27 Misc. Rep. 77.)
In re FOLEY’S ESTATE.
(Surrogate’s Court, Otsego County.
April, 1899.)

Headnote

1. Wills—Validity of Devise—Religious Societies.
The right of a church incorporated under Laws 1813, c. 60, to take by last will and testament, is not affected by provisions of Laws 1848, c. 319, § 6.
2. Same.
A church incorporated under Laws 1813, c. 60, is not affected by the general corporation law, religious corporation law, or the membership corporation law, with reference to its right to take property by will.
3. Misnomer—Evidence.
Misnomer of a corporation devisee will not invalidate the devise, if the true object of the testator’s bounty can be ascertained, and such name may be established by paroi or other competent evidence.
Last will and testament of Mary Foley, deceased, contested.
Will sustained.
James W. Tucker, for proponent.
A. R. G-ibbs, for contestant. ■

The paper writing here offered for probate, as the last will and testament of Mary Foley, deceased, was duly executed, published, and declared by her as and for her last will and testament in conformity with the laws of the state of New York, and is entitled to be admitted to probate.

p. 202
The only question to be passed upon is the one raised by the contestant’s answer, which is that, this will having been executed within 60 days before the death of the testatrix, the gift and devise to the Roman Catholic Church of Gooperstown, N. Y., is void. This residuary clause reads as follows:
“Fifteen. All the rest, residue, and remainder of my property, of every name and ‘nature, I give, devise, and bequeath unto St. Mary Roman Catholic Church of Gooperstown, N. Y., the same to be applied towards the liquidation of the indebtedness of said church.”

This church was incorporated under chapter 60 of the Laws of 1813. Its right to take by last will and testament is not affected by the provisions of section 6, c. 319, Laws 1848; nor is it affected by the general corporation law,"or religious corporation law, or the membership corporation law. The question raised is not an open one. Hollis v. Drew Theological Seminary, 95 N. Y. 166 ; In re Lampson’s Will, 22 Misc. Rep. 198 , 49 N. Y. Supp. 576 , affirmed in 33 App. Div. 49 , 53 N. Y. Supp. 531 .

The gift and devise here is to “St. Mary Roman Catholic Church of Gooperstown, 3ST. Y.” That is the name by which this church is generally and commonly known. The true name of the corporation is “Church of the Lady of the Lake, Gooperstown, N. Y.” The proof shows that the intended object of the testatrix’s bounty was this corporation. It is well settled that a misnomer of a legatee or devisee, whether that legatee be an individual or a corporation, will not invalidate the gift or devise, if the true object of the testator’s bounty can be ascertained either from the will itself or by evidence aliunde. It was proper in this case to establish the true name of the corporation by paroi or other competent evidence. Lefevre v. Lefevre, 59 N. Y. 434 . A decree admitting this paper writing to probate, and adjudging the residuary clause valid, may be entered.

Decreed accordingly.

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