In re Trustees of Congregational Church & Society

13 N.Y.S. 140, 37 N.Y. St. Rep. 179, 59 Hun 618, 1891 N.Y. Misc. LEXIS 999

• Court: New York Supreme Court
• Decided: February 11, 1891
• Status: Published

Opinion

Barnard, P. J.

The petitioners ask that Dayton, the administrator of Henry Landon, deceased, pay to them, the Congregational Church & Society of Cutchogue, a legacy and property devised to them by the will of decedent.The petition shows all the necessary facts, and the proofs before the surrogate sustain in every respect the petition. The will and codicil of deceased give such societies property, and the administrator admits that he had it. Much more than a year had expired since he began his duties under his appointment, and the legacy or property had not been paid. The administrator put in an answer and denied the fact of the incorporation of the church and society, but this fact was fully established before the surrogate. The answer does not deny the validity of the claim absolutely, or upon information and belief. It does not set forth facts to show that the claim is doubtful. This the answer must do in order to oust the surrogate of jurisdiction to order payment. If it be desired to deprive the surrogate of jurisdiction, facts must be set up in the answer so as to render it doubtful as to the petitioners’ claim. In re Macaulay, 94 N. Y. 574; Hurlburt v. Durant, 88 N. Y. 121; Moorhouse v. Hutchinson, 4 Dem. Sur. 362. This answer sets up no fact whatsoever in opposition to the petition. Facts should be set up affirmatively, or such a denial made as the case requires should be interposed. Upon the material facts set fortli in the petition, the proof is abundant. In fact the witnesses Wick-ham and Ackerly produced and examined in behalf of the administrators left no reasonable room for doubt as to the fact of the organization and continued existence of the church society. The decision and decree of the surrogate should in all things be confirmed, with costs to the petitioners. All concur.