
    In the Matter of the Petition of The Congregational Church & Society of Cutchogue.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    Executors and administrators—Payment of legacy,— Proof of corporate EXISTENCE OF LEGATEE.
    In a proceeding to compel payment of a legacy, the administrator’s ■answer denied the incorporation of petitioner and on the hearing before the surrogate claimed that the form of incorporation was defective on the ground that the statute requires the certificate to he made immediately after the meeting of the members of the congregation for the purpose of incorporating, whereas on its face it bore date a month later. Held, that such defect would not render it void and even if a case of forfeiture appeared, it could not be taken advantage of in such a proceeding.
    Appeal from judgment of the supreme court, general term, second department, confirming decree of surrogate directing payment by administrator to the petitioners of a legacy and property devised to them.
    
      Jesse L. Case, for app’lt; Timothy M. Griffing, for resp’t.
    
      
       Affirming 37 St. Rep., 179.
    
   O’Brien, J.

The Independent Congregational Church and Society of Cutchogue by one of its trustees petitioned the surrogate to compel the payment of a legacy to which it claimed to be entitled. One Henry Landon died in the year 1864, leaving a will dated in 1857, and a codicil thereto dated December 10, 1861. This codicil after revoking a gift to another church which was. made by the original will concludes with this provision: “ In case there shall be a new religious society in Cutchogue organized as an independent Congregational church or society at the time of my decease, or within one year thereafter, I give, devise and bequeath to the trustees thereof and their successors, by whatever name they may be incorporated, the said tract of land at Wading river, and also the said shares of capital stock of the Tradesmen's and Manhattan Banks, standing in my name after the decease of said Deborah Corey. The income thereof to be applied to the support of the gospel in the said last mentioned society.” The petitioner produced a certificate in due form under the act of April 5, 1813, providing for the incorporation of religious societies, bearing date October 29, 1862, and recorded in the county clerk’s office of Suffolk county, April 19, 1864. It was admitted that public, religious services were maintained by the society thus incorporated down to the year 1877. Since that time services were held only occasionally and sometimes no services at all were kept up ' for a period of four or five years, and it is claimed no services have-been held since 1887. Mrs. Corey upon whose life the legacy to-the corporation depended, died in the year 1886. The surrogate made a decree directing that Greorge W. Dayton, administrator with the will annexed, transfer to the petitioner the shares of bank stock described in the codicil with their accumulations. He made no findings of fact or law and it does not appear from the record that he was asked to make any. There is no question made as to the validity of the will, the codicil or the bequest. The only point made against the relief asked in the petition is that the petitioner has not proved its corporate existence in the proceedings before the surrogate. Our attention is called to what are -claimed to be defects in the form of the certificate of incorporation. This criticism is to the effect that the statute requires the certificate to be made immediately after the meeting of the members of the congregation for the purpose of incorporating, whereas on its face it bears a date a month later. It is also-claimed that the corporation has ceased to exist by reason of nonuser or failure to keep up religious services or a church organization. We think that the alleged defect in the certificate, if it can be called a defect at all, did not render it void. Even if a cause of forfeiture appears, that cannot be taken advantage of or enforced in a proceeding like this. That question can be raised only by the sovereign power to which the, corporation owes its life in some proceeding for that purpose by or in behalf of the sovereignty itself.

The judgment should be affirmed, with costs.

All concur.  