
    In the Matter of the Will of Jane Arden, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed December 13, 1888.)
    
    1¡ Corporations—Certificate of—When sufficient under Laws 1813,, CHAPTER 60.
    Where the substantial requirements of Laws of 1813, chapter 60, which provides for the incorporation of religious societies are complied with, as the holding of the meeting, the election of trustees, and the execution of the certificate, an error in the recording, etc., of the certificate would not prevent the corporation from taking effect as such. . Following Trustees v. Bly, 73 N. 'Y., 335
    3. Same—Practice m surrogate’s court—When question of incorporation CANNOT BE RAISED.
    The question whether a corporation which is named as a legatee in a. will has a lawful existence or not, cannot be decided by the surrogate’s-court on the proceedings for the probate of the will.
    3. Will—Construction of.
    The sixth clause of the testatrix’ will was, “ I give, devise and bequeath to the Ladies Home Society” * * * “ $500,” and 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 New York.” Held, that the Ladies’ Home Society being incapable of taking a legacy, the $500 became part of the residue and went to the First Baptist Mariners church.
    
      Dixon, Williams & Ashley, for devisees.
   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 remains 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, chap. 60). The case cited by contestant is controlling on the point that, where 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., 325.

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 the matter of the petition of the N. Y. Elevated R. R. 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 proceedings.

“ 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 became de facto a corporation, and the 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 rights to the corporate powers and franchises which it has assumed.” Buffalo City Railway Co. v. N. Y. C. and H. R. R. R. Co., 22 Alb. L. 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 et al. v. N. Y. and Rosendale Lime and Cement Co. et al., 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 Mariner’s 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 follows:

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 Mariner’s 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 et al. v. Dougherty et al. (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 residue; 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, 3 Edw. Ch., 79, 82; King et al. v. Strong et al., 9 Paige, 94.

In my opinion the void legacy in question falls into and becomes a part of the residuum.  