In re The Young Men's Christian Ass'n

We-think that the petition should have been dismissed. Section 2722, Code of Civil Procedure, provides that “the decree must dis*327miss the petition without prejudice to an action or an accounting in behalf of the petitioner: 1. Where an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely, or on information and belief.”

The executors deny the incorporation of the petitioner and allege its non-incorporation, and, therefore, deny the validity of the petitioner’s claim.

An unincorporated society or association cannot take an immediate gift under a will as legatee or devisee. ( White v. Howard, 46 N. Y. 144; Williams v. Williams, 8 id. 524; Marx v. McGlynn, 88 id. 375.) The validity of the claim was disputed, and the surrogate should have dismissed the proceeding. (Matter of Callahan, 152 N. Y. 320 ; Fiester v. Shepard, 92 id. 255; Matter of Hammond, 92 Hun, 478.) As the surrogate could not try the validity of the claim, he could not receive the articles of association in evidence.

The claimant insists that the facts set forth in the answer do not • sufficiently show that it was doubtful whether the petitioner’s claim was valid or legal. We think otherwise. The single fact in question is whether the petitioner was a corporation. The allegations of the answer distinctly present that issue.

The order appealed from is reversed, with ten dollars costs and disbursements, and an order must be entered dismissing the petition.

All concurred.

Order reversed, with ten dollars costs and disbursements, and an order must be entered dismissing the petition.