
    John P. Bowman, as Executor of Mary W. Jewett, Deceased, Plaintiff, v. The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America et al., Defendants.
    (Supreme Court, Monroe Special Term,
    February, 1904.)
    Bequest for Indian and Domestic Missions — Indefiniteness as to the legatee.
    Where the will of a communicant of the Protestant Episcopal Church, beyond bequeathing $2,000 “to be equally divided between the Indian Missions and Domestic Missions of the United States of America ”, contained nothing to show that any society or corporation was to take and apply the bequest, and there was no extrinsic evidence suggesting that the testatrix had in mind any society or corporation connected with her church which should take the bequest, and there was no proof of the existence of any corporation having a name such as that used in the will or of any corporation having the corporate name of “ Indian Missions of the United States ” or “ Domestic Missions of the United States ” or “ Indian Missions ” or “ Domestic Missions ”, the court held the bequest void for indefiniteness as to the legatee and also decided that the “ Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America” was not entitled to the bequest although conducting missionary work in the United States generally as well as among the Indians and although the testatrix was a member of a local woman’s auxiliary branch of the society and took a missionary magazine published by the society.
    Action for the construction of a will.
    T. Nigham, for plaintiff.
    Davies, Stone & Auerbach (Julien T. Davies, Eugene O. Denton and Clark Allen, of counsel), for defendant missionary society.
    Wellington, Jones & Millard, for defendants Tapley.
    Delbert A. Adams, for defendant Clark.
    Ernest B. Millard, special guardian.
   Nash, J.

The only clause of the will of the testatrix which at this time needs to be considered is the following:

" Seventh. I give, devise and bequeath the sum of two thousand dollars, to be equally divided between the Indian Missions and Domestic Missions of the United States of America, in memoriam of the late Mary A. Archer.”

At the time of her death the testatrix was a resident of Clarkson, N. Y., where she had lived all her life; she was a communicant of the Protestant Episcopal Ohurch in Brock-port, near her home, and a constant attendant at that church up to the time of her last illness. She took a strong interest in the work of that church and its charities.

It appears that the defendant claiming the legacy is the Domestic and Foreign Missionary Society of the Protestant Episcopal Ohurch in the United States of America, a corporation incorporated by the Laws of 1846, chapter 331, which was subsequently amended by the Laws of 1867, chapter 374, and by the Laws of 1880, chapter 226, and again by Laws of 1892, chapter 687; that none of said amendments refer to Laws of 1848, chapter 319; that the object of said defendant missionary society is to conduct general missionary operations in all lands; that its principal office is located in the city of New York.

It conducts its missionary work in the western States and territories, among the Indians, colored people and white people, and disburses large sums of money in the prosecution of such work.

There is no corporation having the corporate name of “ Indian Missions and Domestic Missions in the United States,” and no corporation having the corporate name of “Indian Missions of the United States,” or “Domestic Missions of the United States,” or “Indian Missions,” or “Domestic Missions.”

The defendant missionary society publishes a monthly magazine called “ The Spirit of Missions,” to which the decedent had been a subscriber for many years prior to her death.

There is a society known as the “ Woman’s Auxiliary of the Board of Missions of the Protestant Episcopal Church in the "United States of America,” which has branches in various parts of this country, and there was such a branch 1 of such woman’s auxiliary in Brockport, Monroe county, N. Y., of which the decedent was a member, officer and active worker, and was at times instrumental in preparing and forwarding boxes of clothing to workers allied to the defendant missionary society, and whose appeals had reached her through her church or through the woman’s auxiliary.

There is nothing in the will other than the language of the seventh item, the bequest itself, to indicate that the defendant missionary society or that any society or corporation should take the bequest and apply it to the purposes named.

The rule applicable for the purpose of ascertaining the intent of the testator where the language of "the will is ambiguous is comprehensively stated by Allen, T., in Lefevre v. Lefevre, 59 N. Y. 434,.as follows: “A misnomer or misdescription of a legatee or devisee, whether a natural person or corporation, will not invalidate the provision or defeat the intention of the testator, if, either from-the will itself or evidence dehors the will, the object of the testator’s bounty can be ascertained. No principle is better settled than that parol evidence is admissible to remove latent ambiguities, and, when there is no person or .corporation in1 existence precisely answering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. A corporation may be designated by its corporate name, by the name by which it is usually or popularly called or known, by a name by which it was known and called by the testator, or by any name or description by which it can. be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to diRti-ngnisb it from all others and bring it within the terms of the will, may, in all cases, be proved by parol.”

There is here in the will of the testatrix no attempt whatever to name a corporation if one was intended to take and «disburse the charity. No attempt to name any society, persons or corporation which should take the bequest and divide it between the “ Indian Missions ” and Domestic Missions.” No other clause of the will from which to infer that the defendant missionary society was intended as the trustee or custodian of the fund. The sum is bequeathed to be «equally divided between the “ Indian Missions ” and Domestic Missions of the United States,” whether by the church of which the testatrix was a communicant, whether by the branch of the woman’s auxiliary, of which she was a member and officer, or by the other societies and guilds with which ■she was connected, is in no manner indicated.

In each of the cases cited in support of the defendant’s ■contention there was something to indicate the society or corporation as the intended legatee.

In the case of Gilmer v. Stone, 120 U. S. 586, the testator left a will by which, after bequeathing his library to the Presbyterian Church of Irish Grove, $500 for the erection of a Presbyterian church in Greenview, Illinois, and $50 to be paid on the minister’s salary of the Presbyterian Church of Irish Grove for the year 1884, and some ■other bequests, he bequeathed and devised the remainder of his estate to be equally divided between the Board of Foreign and the Board of Home. Missions.

The Presbyterian Church in the United States of America has a corporate Board of Foreign Missions and a corporate Board of Home Missions, but it was agreed by counsel that ■several other religious bodies in the United States have similar organizations for the same purposes. It appeared from the ■extrinsic evidence that the testator had been for many years a ■member and ruling elder of the Irish Grove Presbyterian Church, one of the leading congregations of the Presbyterian Church in the United States of America, and that collections were annually taken up in that congregation for the various boards of that church, including the Board of Foreign and Home Missions, to which the testator was a contributor.1 Held, that there was a latent ambiguity respecting the object of the residuary gift, which could be removed by extrinsic evidence, and that" the evidence introduced on this point, taken in connection with the other bequests in thé will for the benefit of Presbyterian churches, showed that the testator in making the residuary gift had in his mind the Board of Foreign Missions and Home Missions of the Presbyterian Church of the Hnited States of America.

In the case of Board of Missions v. Scovell, 3 Dem. 516, the bequest was of the residue to he divided into four parts, “ one fourth to the Home for the Friendless in the City of Lockport, also one fourth to go to the Home for the Friendless in the City of ¡Rochester; the other two fourths to be divided equally between Home and Foreign Missions.”

By the will the testatrix also gave $1,000 to the Presbyterian Church at Holley, and her house at that place for a parsonage, subject to the life estate of a niece.

It appeared that the testatrix had been for a long time a member of the Presbyterian Church of Holley, N. Y., which she attended; that there were yearly collections in that church taken for the societies claiming the bequest, the “Board of Home Missions of the Presbyterian Church in the Hnited States of America,” and “ The Board of Foreign Missions of the Presbyterian Church in the Hnited States of America.” That she was in the habit of making contributions to these societies. It also appeared that there was a woman’s auxiliary connected with the church, and that the testatrix was at one time solicited to make her contributions through this society rather than through the regular church channels, but she refused so to do. It also appeared that the will was drawn by the testatrix, and that shortly before her death, the will having been read to her, on being told that she should have designated the Presbyterian board, and that she could not then do it, she said to her executor: “ You know that I am a Presbyterian and have given a thousand dollars to the Presbyterian Church at Holley, and my house for a parsonage after Fidelia is through with it, and I want you to see that it goes to the home and foreign missions of the Presbyterian church.”

In both of these cases there were not only other bequests in the will indicating the society the testatrix had in mind, hut there were also in each case societies connected with the chnrch of the testatrix having as part of the corporate name words used by the testatrix in the will. Nothing of the kind appears in the will under consideration, and the extrinsic evidence does not furnish any suggestion or hint that the executrix had in mind any society or corporation connected with her church which should take the legacy.

It is, therefore, held that the bequest is void for indefiniteness.

As to the other bequests in the will the rules of law plainly indicate to whom they are payable or the contingency in which a question would arise may never happen.

Judgment accordingly.  