Opinion
April, 1899.
James W. Tucker, for proponent.
A.R. Gibbs, 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.
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 sixty days before the death of the testatrix, that the gift and devise to the Roman Catholic Church of Cooperstown, 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 Cooperstown, N.Y., the same to be applied toward 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 of chapter 319 of the Laws of 1848. Nor is it affected by the General Corporation Law, or Religious Corporation Law, or the Membership Corporations Law. The question raised is not an open one. Hollis v. Drew Theological Seminary, 95 N.Y. 166; Matter of Lampson, 22 Misc. Rep. 198; affirmed in 33 A.D. 49.
The gift and devise here is to "St. Mary Roman Catholic Church of Cooperstown, N.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, Cooperstown, 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 parol 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.