
    Elisha H. Pratt, as Administrator with the Will Annexed of William C. Herring, Deceased, Respondent, v. The Roman Catholic Orphan Asylum in the City of Albany and Others, Appellants.
    
      A bequest to an unincorporated association is void—presumption as to the law of a foreign country — a bequest to the poor of a church is invalid — the Statute of Limitations is a defeme at law—■ it will not be considered in an action to construe a will — surrogate to determine as to the payment of legacies.
    
    A voluntary unincorporated association cannot take a bequest, even for charitable purposes.
    In the absence of proof as to the law of a foreign country, the courts of the State of New York will either indulge iu no presumption at all or will assume that the foreign law is the same as that of the State of New York.
    A bequest to the poor of an incorporated church is invalid because of indefiniteness, even though the church be competent to take.
    The proper place for an administrator to obtain a decree for the payment of legacies, when the question is presented as to whether they are barred by the
    ' Statute of Limitations, is in the" Surrogate’s Court, and unless some special reason exists for its so doing, the Supreme Court will not assume j urisdiction of the matter.
    The duty of an administrator to plead the statute as against a legatee discussed.
    
      
      Semble, that, as the Statute of Limitations is a perfect defense to an action at. law, equity will hot consider the question in an action brought by an executor to obtain á construction upon the will of his testator..
    Appeal by the defendants, The Roman Catholic Orphan Asylum in the city of Albany and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 20th day of March, 1895, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Edward J. McGean, for the appellants.
    
      T. F. Haskell, for the respondent.
   Rumsey, J.:

The action was brought for the construction of the will of William C. Herring, deceased, by which bequests were made for charitable purposes to certain organizations, some incorporated and some unincorporated. Several of the bequests were held good at the Special Term, and as to those no question is raised upon this appeal. Those of the appellants whose bequests were held to be invalid dispute the correctness of the judgment so far as it refuses to recognize as valid the bequests to them respectively; and all of the appellants, attack it because it does not adjudge the payment of their legacies, and determine that the Statute of Limitations has not run against, them.

By the 7th clause of the will the testator bequeathed “to the Poor Schools attached to the St. Patrick’s Church, Soho, England, said schools are now situated in Tudor Place, $3,000.” This bequest, was held by the Special Term to be void because' it did not appear that the legatee was an incorporated association. The answer of the legatee asserted that by the law of England an unincorporated association could take for charitable purposes. ' An effort was made to prove that such was the law, but the effort was entirely unsuccessful. All the proof offered on that point consisted of a letter to. that effect, and a declaration made under the laws of Great Britain and Ireland providing for the taking of proof to be used in the colonies of that nation. This proof was excluded, and rightly. The letter, of course, in no case could have been proof of anything. The declaration offered, while it might possibly .have been admitted as evidence in the courts of any of the colonies of Great Britain, did not comply in any respects with the statutes of this State so as to permit it to be read in evidence. No other proof was offered on the subject. Whenever the question is presented as to what is the law of a foreign country in any given case, it must be established as a fact; and if there is no evidence given upon the question, the court will either make, no presumption at all, or will presume that the foreign law is the same as the law of this State. In this State it is well settled that a voluntary unincorporated association has no legal capacity to receive a bequest, even for a purpose denominated charitable. (Sherwood v. American Bible Society, 1 Keyes, 561; Owens v. The Missionary Society of the M. E. Church, 14 N. Y. 380; Downing v. Marshall, 23 id. 366.) Upon the state of facts appearing in this case, the Special Term was clearly right in holding that the bequest to the poor schools attached to St. Patrick’s ■ Church was not valid. . .

By the 8th clause of his will the testator bequeathed to. the Roman Catholic Aged Poor Society in the city of London, Eng., $1,000. This bequest was held to be void, and was properly so held for the reason given in regard to the previous bequest.

By the 6th clause of his will the testator bequeathed to the poor of St. Peter’s Roman Catholic Church in Barclay street, $1,000. It was made to appear that the Roman Catholic church in . Barclay street was an incorporated religious society, but this bequest was not made to that church, and that church had no 'right to receive it. The benefeciaries under- the bequest, who were also the legatees, were the poor of the church. This bequest, held to be void at the Special Term, was correctly so held, not only because of the reasons stated in the previous part of this opinion, hut for the further reason that, even if there had been a trustee competent to take a bequest to the poor of a particular society or place, it must be held void for indefiniteness. (Fosdick v. Town of Hempstead, 125 N. Y. 581.)

The other bequests in the will were held to be valid, and from that portion of the judgment no appeal is taken.

Besides asking for a construction of the will as to the various legacies, the plaintiff asked in his complaint a general instruction as to whether the legacies were, at the time of bringing the action', valid ■claims against the estate. lie insisted upon the trial that the Statute of Limitations had run in his favor against all legacies, whether otherwise valid or not, and, therefore, the judgment should direct that none of the legacies were to be paid, but that the estate should be distributed among the next of kin. This instruction the ■court below refused to give, holding that the Statute of Limitations could only be used as a defense in case actions were brought by any of the legatees for their legacies. The plaintiff did not appeal from this judgment, and, for that reason, he is not in a position to question the correctness of it, but is bound by it.

The Roman Catholic Orphan Asylum of the city of Albany, however, did except to that portion of the decision, and comes here now insisting that the court should instruct the administrator that the •Statute of Limitations has not run against these legacies, but that they should be paid in accordance with the directions of the will. It is unnecessary, in examining the question as to the correctness of this portion of the judgment, to consider the facts which have been made to appear in the case. It is simply sufficient to say that the Statute of Limitations, if it applies in any case, is a perfectly good defense to any action brought to recover a claim upon a legacy against which it has run, and it may be set up whenever that claim is sought to be made, at any time or in any court. (Matter of Rogers, 153 N. Y. 316, 322.) If it is not pleaded the court, cannot take any cognizance of it, or make any ruling in regard to it. (Code Civ. Proc. § 613.) Whether, in an action brought upon these legacies, it would be the duty of the administrator to plead the Statute of Limitations may be very doubtful. The reasons which have induced the courts to say that it is the duty of the administrator to plead the Statute of Limitations in every action brought against him for the debt of a testator do not apply to an action for a legacy, which can only be brought because of his failure, for some reason, to carry out the intention of the testator as expressed in the will. It is hardly to be supposed that the courts would insist that it was the ■duty of the administrator, with the will annexed, to plead the Statute of Limitations to a legacy which, without fault of the legatee, had never been paid. If the case were one' in which the statute might properly be pleaded, and, when pleaded, would be a defense, then it would be a perfect defense; and it is the rule of law that where one has a perfect defense to a claim which may be made against him in an action at law, he will not he permitted to bring an action in equity •to restrain the prosecution of the legal action, hut must stand upon his legal defense when the action at law shall be brought against him. (Bomeisler v. Forster, 10 App. Div. 43.)

The proper place to obtain a decree for the payment of ■ legacies given by will is the Surrogate’s Court, and in the absence of a special reason why it should do so, this court will not assume to undertake the judicial settlement of the estate and give directions as to the payment of debts or legacies. Ho reason is seen why the ' plaintiff should not proceed in the Surrogate’s'Court to settle the estate, and upon that settlement receive such instructions as to the payment of the legacies as should necessarily be given upon a consideration of all the facts and of the provisions of the will as * construed by this judgment.

The judgment appealed from must be .affirmed, with costs to be paid by the appellants to the respondent. '

Van Brunt, P. J., Patterson, O’Brien and Parker, JJ. concurred.

Judgment affirmed, with costs to be paid by the appellants to the' • respondent.  