Mapes v. American Home Missionary Society

40 N.Y. Sup. Ct. 360

• Court: New York Supreme Court
• Decided: September 15, 1884
• Status: Published

Opinion

Barnard, P. J.:

By the terms of the will of Gilbert E. Waterbury, deceased, the property given by the tenth clause of the will vested at the death of the testator. The words “ at the decease of my said wife ” have long been held to indicate a vested remainder with the time of payment or possession postponed until the future event happens. (Livingston v. Greene, 52 N. Y., 118.) Unless, therefore, the property given by this clause passed to some one person or corporation, it went to the next of kin of deceased. One-third of the residue is given by this clause to the American Home Missionary Society. This was an association of persons for charitable and religious purposes, but was not incorporated at the death of the testator. It had its domicile in New York, and the testator was at the time of his death domiciled in the State of Connecticut. As an unincorporated association the Home Missionary Society could not take by our laws. (White v. Howard, 46 N. Y., 144; Marx v. McGlynn, 88 id., 357.) By the statute of Connecticut this bequest is good. By our laws h is not; and which controls in respect to this bequest ? The general rule is that while the execution of the will and the capacity of the testator and the construction of the instrument is governed by the law of the domicile of the testator, yet the law of the domicile of the legatee governs the validity of the bequest. (Chamberlain v. Chamberlain, 43 N. Y., 424.) That case, however, does not seem to determine the question here. A testator in New York gives personal property to a corporation entitled to take in Pennsylvania, and the bequests were held good. It was stated in the opinion that a bequest bad at the place of domibile of testator would be bad everywhere. The bequest was not bad in New York in that case, nor is the bequest bad here»in the place of testator’s domicile. The question seems to turn, therefore, solely upon the power of the legatee to take. The treasurer cannot take, because the fund is to be applied to the charitable uses of the society under its directions. An unincorporated association cannot be a trustee. (Owens v. Missionary Society, 14 N. Y., 380.) A voluntary association for charitable purposes cannot under the law of this State take a legacy given to it. (Sherwood v. American Bible Society, 1 Keyes, 561; White v. Howard, supra.) Subsequent incorporation does not give effect to a legacy to an association unincorporated at the testator’s death. (White v. Howard, 46 N. Y., 144.) The gift was therefore inefficient, and the title passed to the next of kin at testator’s death and to the representatives of such of them as have since died. It follows that the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Part of judgment appealed from affirmed, with costs.