Mitchell v. Presb. Church

3 Dem. Sur. 603

• Court: New York Surrogate's Court
• Decided: March 15, 1885
• Status: Published

Opinion

The Surrogate.

It is now well settled that an incorporated school, society or body, is incompetent to take a legacy. There must be an incorporation, to enable the courts to enforce the payment, and the execution of the trust by a proper application of the money. True, the will does not declare the purpose for which the bequest was made, but it was, undoubtedly, for a religious or charitable one. The executor took the money, but he was not appointed the trustee to apply it to any use, nor was he, in terms, authorized to make a selection of the beneficiary to which it should be paid, and he made no such selection. If he ever had the power to do that, it did not devolve on the administrator with the will annexed. That seems to be conceded. The court is here virtually asked to do it, but the ey pres power is not now exercised by any court of this State. It cannot designate “ some Sunday School ” with the option of selecting, among others, “ the Rye Presbyterian; ” nor any charitable institution. The testator should have done that. He failed to point out any person or corporate body as legatee who can maintain an action for the recovery of the legacy. The amount of it will, therefore, fall into the residuum, and pass to the legal representative of the deceased executor, Thomas M. Mitchell, who is named in the will as residuary legatee.

Decreed accordingly.