
    Westchester County.
    Hon. OWEN T. COFFIN, Surrogate.
    March, 1885.
    Mitchell v. Presb. Church. In the matter of the judicial settlement of the account of William R. J. Mitchell, as administrator with the will of Peter P. Reid, deceased, annexed.
    
    The ey pres power is not exercised by any court of this State.
    Testator’s will contained the following clause: “And I also reserve fire hundred dollars for an arbor vitce hedge around the plot in burying ground, and for other things necessary about the plot, and what is remaining of the above (500) five hundred to be given to some Sunday school Bye Presbyterian or charitable institution.”—
    
      Held, that the testator intended to make a bequest for a religious or charitable use; but that, he having failed to point out any corporate or natural person who could maintain an action to recover the legacy, the court could not supply the defect; and that the residue of the $500 fell into the residue of the estate.
    The testator, by his will, provided as follows : And I also reserve five hundred dollars for an arbor vitce hedge around the plot in burying ground, and for other things necessary about the plot, and what is remaining of the above (500) five hundred to be given to some Sunday School, Rye Presbyterian or charitable institution.”
    Only twenty-five dollars was expended for the hedge, and in doing other necessary things about the plot, a,nd there remains four hundred and seventy-five dollars, which is claimed by a religious corporation known, as incorporated, as “ The trustees of the Presbyterian church of the town of Rye, in Westchester County.” There is no other Presbyterian church in that town, and the testator, in his lifetime attended that church. He appointed Thomas M. Mitchell executor of his will, who entered upon his duties, but never designated any object as the donee of the residue of said five hundred dollars. He died, and the present accounting party was appointed administrator with the will annexed.
    D. Haight, for administrator.
    
    C. P. Cowles, for Presbyterian church.
    
   The Surrogate.

It is now well settled that an incorporated school, society or body, is incompetent to take a legacy. There must be an incorporation, to enable the courts to enforce the payment, and the execution of the trust by a proper application of the money. True, the will does not declare the purpose for which the bequest was made, but it was, undoubtedly, for a religious or charitable one. The executor took the money, but he was not appointed the trustee to apply it to any use, nor was he, in terms, authorized to make a selection of the beneficiary to which it should be paid, and he made no such selection. If he ever had the power to do that, it did not devolve on the administrator with the will annexed. That seems to be conceded. The court is here virtually asked to do it, but the ey pres power is not now exercised by any court of this State. It cannot designate “ some Sunday School ” with the option of selecting, among others, “ the Rye Presbyterian; ” nor any charitable institution. The testator should have done that. He failed to point out any person or corporate body as legatee who can maintain an action for the recovery of the legacy. The amount of it will, therefore, fall into the residuum, and pass to the legal representative of the deceased executor, Thomas M. Mitchell, who is named in the will as residuary legatee.

Decreed accordingly.  