
    Matter of the Estate of Willard W. Dickinson, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      October, 1907.)
    Wills—Interpretation and construction—Designations and descriptions OP PERSONS, ETC.-CORPORATIONS.
    Where a testator gives legacies to religious societies by names which are not their correct corporate names but which plainly describe the respective institutions the testator had in mind, and no other institution of similar name or character claims either of them, the legacies will be sustained in favor of the societies intended.
    And where a legacy is given in like manner to a Public Library of Phelps, N. Y., and two libraries exist which might have been in the mind of the testator, the character of the libraries, the situation and circumstances of the testator and his means of knowledge of the two libraries taken in connection with the names by which they were known will be considered in determining to which he intended to give the legacy.
    Proceeding for the judicial settlement of the accounts of an executor.
    Otto F. Struse, for Nassau Trust Company, executor; Edward H. Leggett, for Phelps Union and Classical School; A. C. Olp, representing the Attorney-General; Wood & Goldsmith, for Mary Swift Stearns, a residuary legatee; H. L. Thompson, for Methodist Episcopal Church of Phelps, N. Y.; George S. Ingraham, for First M. E. Church, Brooklyn; Douglass & Minton, for Lettie Stearns Bushnell, a legatee; Fisher & Voltz, for Industrial School Association.
   Church, S.

The deceased in his will made four bequests to four separate institutions, and it is contended that these bequests are invalid for various reasons which will now he considered.

There was a bequest to the Methodist Episcopal Church of Phelps, N. Y., of $5,000 and also to the South Second Street Methodist Episcopal Church of Brooklyn, of $3,000. It is shown that there is no institution whose corporate name corresponds to these designations; but, on the other hand, it is also shown that in each case there is a church plainly answering the description of the respective institutions which the testator had in mind. No other institution of similar name or character claims either of the legacies; and, as the latter do not conflict in any way with the provisions of statute touching bequests to charitable institutions, they should be sustained.

The testator made a further bequest of $5,000 to the “ Public Library of Phelps, N. Y.” It appears that there is no institution incorporated under that title; but that there is a public library of the school district of the village of Phelps, which is commonly referred to as the library ” or the public library that the existence of this library was known to the testator and that, in his boyhood days, he attended the district school and undoubtedly had the use of the library. It is further shown that -another library was incorporated several years ago in Phelps, known as “ The Crown Library Association.” This library for a time was apparently in active existence, circulating books. For a number of years prior to the death of the testator, however, it had not done any business as a library. No proceedings had been taken to dissolve its charter or to dispose of its property, but its books were not circulated, being packed away in storage and for all practical library purposes, it was virtually defunct. It is not disclosed that the decedent ever knew of the existence of this “ Crown Library.” That association does not claim this bequest; on the contrary, it appears and waives any claim to the same. The residuary legatees, however, claim that, as the school library was a mere incident of the school, it could not have been the institution that was in the mind of the testator; that the Drown Library was the only one in the village of Phelps, that comes within the provisions of the will, and that, if the court adopts this construction, as the Crown Library was incorporated under an amendatory act of the act of 1848, the bequest must fail for the reason that the will was not made within sixty days of the death of the testator. They urge that the knowledge of the invalidity of the gift prompted the Crown Library to waive any claim to it. It is further claimed on their behalf that, if it cannot be definitely determined that the Crown Library is the institution which was in the testator’s mind, then the language of the will is so ambiguous that it is impossible to tell which of the two libraries was to be benefited and, therefore, the bequest-should be declared void for uncertainty.

Hence the main question for determination is as to which institution the testator had in mind in referring to the “ Public Library of Phelps.” In its consideration, we must recognize the principle that it is the duty of the court to. carry out the intention of the deceased and that the bequest will not be declared void on the ground of uncertainty unless the conditions are such as to make it impossible to ascertain, with any degree of reasonable certainty, what was his intention. It appears from the evidence that, although the testator was born in Phelps and always maintained an active interest in the place of his birth, he had' not lived there for many years. It is but natural, in consequence, that in making a bequest for “ Public Library ” he-should have had in view the library which was in existence when he lived in the town rather than some institution which was incorporated in later years, about which he knew nothing. Again, it is shown that the library attached to the school has not borne any definite or particular name, but has been referred to as the library,” or the school library ” or the public library.” And it is but natural, too, that the testator should believe that the-words public library,” even if not the corporate name of the institution, would be sufficiently descriptive to indicate to any person the library which he had in mind. On the other hand, the title of the “ Crown library Association ” is such that,, while the exact title as contained in the certificate of incorporation might not have been used, yet similar words would have been used which would have left no one in doubt as to the testator’s meaning. While the phrasing of the bequest is not so definite as might be desired, yet it seems to be plain that the library of the school was the one which the testator intended to benefit.

The will also contained a bequest to the Eastern District Industrial School Association of the sum of $3,000. This institution is conceded by the various parties to have been incorporated under one of the amendatory acts of the statute of 1848, and in consequence the bequest is invalid.

Let decree be entered settling the accounts as herein indicated.  