
    In the Matter of the Will of Kate E. Hernberg, Deceased.
    Surrogate’s Court, New York County,
    April 6, 1943.
    
      Prentice & Tcnvnsend for Evelyn C. G-elly, petitioner.
    
      John M. Dickinson for Rector, etc., of the Church of the Incarnation in the City and County of New York, respondent.
    
      Nathaniel L. Goldstein, Attorney-General (Corning G. McKennce of counsel), for the State of New York, respondent.
   Delehanty, S.

When deceased drew her will on May 33,1940, she was a member of a religious corporation known as “ The Rector, Church Wardens and Vestrymen of the Church of the Incarnation in the City and County of New York.” She executed her will in the parish house of that church. At the time her will was made the church maintained a fund known as “ Rector’s Discretionary Fund ” into which were put gifts and legacies to be used by the rector of the church in his discretion.

It is against the background of these facts that the court must construe the residuary clause of her will which says: “ Sixth: All the rest residue and remainder of my estate, both real and personal, wherever situated I do bequeath and devise to the Rector’s Fund-of the Church of the Incarnation to be disbursed at the sole discretion of the Rector.”

The court holds that the residuary gift is to be construed as a gift to the religious corporation known as “ The Rector, Church Wardens and Vestrymen of the Church of the Incarnation in the City and County of New York ” and that such corporation is to pay the legacy into its fund known as “ Rector’s Discretionary Fund ” for ultimate disposition by the rector or other supervising officer of the church in accordance with its practice.

Submit, on notice, decree construing the will and settling the account accordingly.  