
    
      In re Arden’s Will.
    
      (Surrogate’s Court, New York County.
    
    December 13, 1888.)
    1. Corporations—Eoreeiture—Collateral Proceedings.
    The fact that an incorporated church has forfeited its charter and lost its legal existence can be taken advantage of only by direct proceeding against it for the purpose of declaring the forfeiture, and cannot be set up in the contest of a will in which the church is a legatee.
    2. Religious Societies—Incorporation—Certificate—Recordation.
    Where Laws N. Y. 1813, c. 60, (2 Rev. St. 7th Ed. p. 1654,) providing for the incorporation of religious bodies, is complied with, except that the certificate is recorded in the recorder’s instead of the county clerk’s office, the error does not vitiate the proceedings.
    3. Wills—Construction—Residuary Clause—Lapse of Legacy.
    Under a residuary clause giving generally “all the rest, residue, and remainder” of testator’s estate, a void legacy will fall into the residuum.
    The will of Eliza Jane Arden was presented for probate by Thomas G. Stewart, and contested by Charles F. Arden and Thomas 0. Arden, heirs at law of the testatrix.
    
      S. E., ff. H., & II. Cowdrey, for contestants. Dixon, Williams & Ashley, for the Ladies’ Home Society and the First Baptist Mariners’ Church of New York City, legatees. Morgan & Ives, for proponent.
   Ransom, S.

That the paper propounded was duly executed as the last will and testament of decedent, and that she was mentally capable and under no restraint, nor subject to undue influence, is fully established. There remain but two questions to be determined. The Ladies’ Home Society is admittedly incapable of taking its legacy of $500; and it is claimed in behalf of the contestants that, as to this legacy, the decedent died intestate; whereas, the residuary legatee claims that it falls into and becomes a part of the residuum. The capacity of the First Baptist Mariners’ Church to take as residuary legatee is disputed, it being claimed by contestants that it is incompetent to take on four grounds: (1) That the church is not incorporated; (2) that it holds property equal to the amount it is authorized by law to hold; (3) that it is incapable of taking a'devise of real estate, or the proceeds of real estate; (4) that it is dissolved as a corporation, and has no legal existence.

The certificate of incorporation was recorded in the register’s office March 25, 1847, instead of in the office of the county clerk, as required by the statute. Laws 1813, c. 60. The case cited by contestant is controlling on the point that, wljere the substantial requirements of the statute are complied with, as the holding of the meeting, the election of trustees, and the execution of the certificate, an error in recording, etc., would not prevent the corporation from taking effect as such. Trustees v. Bly, 73 N. Y. 323.

The other point to be considered is whether this court has jurisdiction to determine that this corporation has become dissolved and has no legal existence. In Re Railroad Co., 70 N. Y. 327, at page 338, it was held that a cause of forfeiture cannot be taken advantage of or enforced against a corporation, collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose against the corporation, and the government creating the corporation can alone institute the proceeding. “Where twenty-four persons subscribed articles of incorporation, while the statute required twenty-five, and filed the same pursuant to the statute, and exercised the powers and franchises which would have belonged to them if duly incorporated, they become, de facto, a corporation, and a defendant, in an action brought by the corporation, cannot question the validity of its incorporation. That can be done only in an action by the people, brought for the purpose of testing its right to the corporate powers and franchises which it has assumed. ” Railway Co. v. Railroad Co., 22 Alb. Law J. 134. “A forfeiture of the franchises of a corporation, unless there be special provision by statute, can only be enforced by the sovereign power to which the corporation owes its life, in some proceeding instituted in behalf of the sovereignty.” Denike v. Cement Co., 80 N. Y. 599.

It is'unnecessary to cite further authorities. Whether this legatee is or is not a corporation lawfully existing cannot be decided in this proceeding or in this court. It appears satisfactorily that it was duly organized and incorporated, and has never been judicially dissolved. I decide, therefore, that the First Baptist Mariners’ Church is competent to take the residuary estate.

I next come to the legacy of $500 to the Ladies’ Home Society. The language of the sixth clause is as follow's: “I give, devise, and bequeath to the Ladies’ Home Society of the Baptist churches of the city of Hew York, $500;” and of the eighth clause: “All the rest, residue, and remainder of my estate, real and personal, I give, devise, and bequeath to the First Baptist Mariners’ Church of the city of Hew York.” And by the ninth clause the executors are directed to sell and dispose of all the real estate for the purpose of distribution. In Kerr v. Dougherty, 79 N. Y. 327, although the court of appeals held the lapsed legacies did not fall into the residue, the reasons given were based on language in the will directly contrary to that of the one in question here. In that case there was not a general bequest of the resi•dúe. The testator’s wife was not a residuary legatee of all the fund, but only partially so, as the devise to her was confined to a fund after a certain amount had been deducted, thus creating the bequest of a residue of a residue. In the case at bar there is a bequest of the residue generally; nor is the residuary legatee confined to a fund that will be ascertainable after certain amounts have been deducted therefrom, thus making the bequest that of a residue of a residue. See, also, King v. Woodhull, 8 Edw. Ch. 79-82; King v. Strong, 9 Paige, 94. In my opinion, the void legacy in question falls into and becomes a part of the residuum.  