Lutheran Reformed Church v. Mook

The Surrogate.—The question presented in this case is whether the bequest to the Evangelical Lutheran Reformed Church is valid. Unless it had capacity to take this bequest at the time of the death of the testator, it- must fail. The subsequent incorporation of the society could not divest vested rights. (White v. Howard, 46 N. Y., 144.)

It seems to be well settled that a voluntary unincorporated association is incapable of taking a legacy under *515the laws of this state. This question has very recently been decided in the case of the First Presbyterian Society v. Bowen, executor, and not yet reported. In the opinion, Talcott, Presiding Justice, says : “ The bequest of $1,000 to the. Presbyterian Cemetery must fail, as there was no corporation by that name ; as a voluntary unincorporated association it is incapable of taking; ” and cites Dowing v. Marshall (23 N. Y., 382), Owens v. Missionary Society (14 Id., 380), Sherwood v. American Bible Society (1 Keyes, 561), McKean v. Kearney (57 How., 350), Betts v. Betts (4 Abb. New Cas., 403), Leonard v. Leonard (58 How. 384), White v. Howard, (46 N. Y., 144). In the case of Betts v. Betts (supra), Judge Van Vorst, in a lengthy opinion, examines the various cases bearing upon this question, and comes to the conclusion that a voluntary unincorporated society cannot take, either by devise or bequest. The same question is again decided by the same judge in McKean v. Kearney (57 How. Pr., 349).

It was claimed, upon argument, that although an unincorporated religious society could not hold property acquired by devise or bequest, yet in the cáse at bar the contestants could not be heard to say or claim that the society was not regularly incorporated, because the testator had dealt with such society as a corporation, and had deeded the land on which its church building was erected to the society, and received therefor, as the consideration, $100. I cannot see that there is anything in this which creates an estoppel, as is claimed by the counsel for the church.

; In this view of the .case, the motion to confirm the *516auditor’s report, so far as it relates to the legacy in question, is denied, and the bequest is declared to be void.

Ordered accordingly. .