
    In the Matter of the Construction of the Last Will and Testament of Sophia Zimmerman, Deceased.
    
      (Surrogate’s Court, Erie County,
    
    
      Filed January, 1898.)
    Legacy — Bequest for Masses — Validity.
    A bequest to the priest of a certain church for masses to be said for the repose of the soul of testator and others named in the bequest is not void for indefiniteness of the beneficiary; nor is it a bequest to the church; nor does it create a trust; but it is a conditional legacy to the person who was exercising the functions of priest in the designated church at the time the will took effect, to which he, as an individual, will become entitled on showing that he said the masses.
    Proceedings upon probate of will.
    H. B. Van Peyma, for executor; Tabor & Wilkie, for John Zimmerman, contestant.
   Marcus, S.

There is no dispute as to the testamentary capacity of the testatrix, or the due execution of the will.

The husband of the testatrix has put in issue, under section 2624 of the Code of Civil Procedure, first, the validity of the. bequest “ to the priest of St. Mary’s Church of Lancaster, New York, of the sum of $600, for which masses shall be said for flie repose of my soul, and that of my husband, and all my relatives and benefactors,” claiming, first, that such bequest is. void for uncertainty as to the trustee and beneficiary; second',, ihat if valid, it is a bequest in fact to St. Mary’s Church, and in 1 hat event the will gives the corporation named therein moro than one-half of her estate, and as to the excess the same is void, and the husband takes; and third, that in the first event, the husband takes instead of the residuary legatee — the St. Mary’s Church of Lancaster-named in the sixth clause of the will — since the. same is,in. contravention of chapter- 360 of the Laws of I860, which- provides that no person having a husband, wife, parent or child shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more -than one-half of his or her estate, after the payment of his or her debts. The third clause of the will gives and bequeaths to the St. Mary’s Church of Lancaster the sum of $200 to be used towards the payment of the indebtedness of that church. The fourth clause gives', and bequeaths to the Seminary and College of our Lady of Angels at Suspension Bridge, New York, the sum of $200 to be used for the support and education of poor and needy students for the priesthood. The fifth clause gives and bequeaths to the husband of the testatrix the sum of $300.

It is conceded that the total amount of the personal estate does not exceed more than $1,700.

The first objection, that the bequest is' void for uncertainty as to trustee and beneficiary, is without force, by reason of chapter 701 of the Laws of 1893, which' provides that, “No gift, grant, devise or bequest to religious, educational, charitable or benevolent uses, which shall, in other respects, be valid under the law's of this State, shall be or be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bo-quest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall' vest in such trustee. If no person be named as trustee théiv the' title to such lands or property shall vest in the Supreme-'Court.”

. It is contended that the attempt :dn--the part of the testatrix to have her executrix pay- the priest df the church $600, for the purpose of saying; masses is, in fact, a bequest to the church; that such bequest' for masses do'es not' invest him, as an individual, with any interest in the fund, but that he w-ould take it, if at all, as a priest of tlie church, for the purpose of having masses said, which is a religious purpose, and therefore within chapter 360 of the Laws of 1860, which forbids the disposition •of more than one-half of an estate, as before mentioned.

The point seriously urged is that the bequest of the testatrix to the priest must be deemed to have been given to the priest for the benefit of the church with which, the legatee was associated and officiating.

The legacy is given to the person who, when the will took •effect, should be exercising the pastoral functions in the designated church, and though not described by name, is, nevertheless, capable of full and complete identification.

“ The beneficiary under the trust is the minister officiating at the church named, for the time being. Although the particular individual is not named, he is so described that he is capable of being identified and distinguished from every other human being. There is nothing uncertain or indefinite in the description.” Holmes v. Mead, 52 N. Y. 343.

I cannot conclude that a bequest to a priest individually in any way connects the church with the legatee. The same, bequeathed legally, and by the universal practice of the chui’ch, belongs to the priest, and neither the church or any superior to the priest therein can call him to an account thereof.

In the case of Van Derveer v. Kane, 25 Abb. N. C. 105, a situation is found analogous to the case at bar. The testatrix bequeathed $5,500 to her executors to he by them paid as therein directed. Five hundred dollars each to the pastors.of certain Roman Catholic churches, and $250 each to the pastors -of certain Roman Catholic churches, which amounts' were to be paid for masses to be said in said churches. The bequest was uttaeked by her father as being in contravention of chapter 360 of the Laws of 1860. Bartlett, J., writing the opinion, said: " I do not regard the bequest to the pastors of the various Roman Catholic churches specified in the eleventh article as bequests to the corporations at all. They are simply legacies to the several persons who, when the will took effect, should be exercising the pastoral functions in the several designated churches.” See Cottman v. Grace, 112 N. Y. 299-308.

Neither is a bequest to the Roman Catholic bishop of Long Island a bequest to a corporation within the meaning of the act of 1860.”

The will leaves little doubt as to whom the testatrix intended should have the $600 mentioned in the second clarrse of her will. In that clause she mentions the priest of St. Mary’s Church, while in the third clause she makes a bequest directly to St. Mary’s Church. '

It may be asked why she did not omit the word “ priest ” in the second clause if she intended the church to receive the money ? The fact that the law designates the Rev. Mr. Schef-íles a trustee of this church by reason of his being the priest named in the articles of incorporation cannot-require him to account as trustee to- the church for everything he may receive iñ the exercise of his ministerial functions. I am satisfied that no trust is created in this will, but a conditional legacy.

After masses shall have been said in accordance with the con'ditions annexed to said legacy by the Rev. Mr. Scheffles, he will, on showing a future performance of the condition to say masses as mentioned, be entitled to the legacy in his favor.

Concluding, therefore, that the bequest to- the priest is a bequest to him, and not to the church, it follows that not more than one-half of the estate is bequeathed to corporations, and is, therefore, valid.

The paper propounded may go to- probate.

Probate granted.  