#### Matter of the Probate of the Last Will and Testament of William D. Robertson, Deceased.

(Surrogate’s Court, Washington County,

April, 1898.)

1. An executor cannot procure, under Code Civil (Procedure, § 2624, a construction by a surrogate of a bequest of. personalty,

A mere executor and proponent of a will has not sufficient interest in the, estate of his testator to entitle him to invoke the Jurisdiction given to a surrogate by section 2624 of "(the Code of Civil Procedure, *451to determine the validity, construction ,or effect of a disposition of personal property contained in the will of a resident of the state (of New York, executed within the stare, when .the disposition is expressly put in issue by a “ party.”

8. Bequests of personalty to foreign religious corporations — Power to take is governed by the law of the domicile of the donee.

Where boards of missions, incorporated in a foreign state, are forbidden by its statutes to take bequests under any will unless the will was made one calendar month before the decease of the testator, they cannot take bequests under a will of personal property, situated in this state, which was made by a resident testator twenty-six days before his death and this, although such bequests would be valid under the laws of this state.

Proceedings upon probate of a will.

C. C. Van Kirk, for proponents.

John B. Conway, for contestants.

Ingalsbe, S.

The testator died July 6, 1897. His will was executed within the state, June 10, 1897, less than one calendar month before his death. At the time of the execution of his will, and at his death he was a resident of the state of New York." He left eight nephews and nieces as his only next of kin and heirs-at-law." The amount of personal property disposed of in. the twentieth and residuary clause of his will is upwards "of $15,000. none of the assets of the decedent were located at the time of his death in the state of Pennsylvania.

The second and twentieth clauses of his will read as follows:

“ Second: I give, will and bequeath to the Boards of Missions of the" Hnited Presbyterian Church of North America, the sum of three thousand ($3,000) dollars, one thousand ($1,000) dollars of which is to be used for" the benefit and use of the Home Mission "Work, one thousand ($1,000) for the benefit and use of the Freedman’s Mission Work, and the other one thousand ($1,000) dollars to be for the benefit and use tof foreign missions, and I direct that a receipt for said amount from the treasurer or other proper officer of said Board of Missions shall be a sufficient receipt or voucher for my executors on their final settlement and conclusive as such.: ■

*"*Twentieth: I give, will and bequeath all the rest, residue and *452remainder of my estate of every name and nature to my grand niece. Stella Small and the Boards of Missions of the United Presbyterian Church.of Rorth America, to.be divided equally between them each to have one-quarter.” ' . '

The-Boards of Missions of the United Presbyterian Church of Rorth America mentioned in these clauses are each duly incorporated under the laws of the state of Pennsylvania and bear the following-names: “ The Board of Home Missions of the United Presbyterian Church of Rorth America,” '“ The Board of Missions' to the Ereedmen.of the G-eneral Assembly of the United Presbyterian Church of Rorth America,” and. “ The Board of Foreign Missions of the United Presbyterian- Church of Rorth America.” The objects and purposes of each'of these boards are religious and charitable, and the legacies in the second and twentieth clauses of the will, to these societies, are for such objects and purposés.

John Me. A- Reid, an executor and one of the petitioners for the probate of the will presents an answer to the petition-and seeks to put in issue' the validity, construction and effect of the disposition-of personal property to the' Boards of Missions, provided for, ■in the second and twentieth clauses of the will. The answer is presented under section 262-1- of the Code, 'which provides' that “ If a party expressly puts in issue before the surrogate, the validity, construction or effect of any disposition of personal property contained in- a will of a resident of the state executed within the state, the surrogate must determine the question.”

Under the reading of this' clause it is claimed that Mr. Reid Can present this issue, for he is a “¡party to the proceeding. But he is one of the proponents. He is not a legatee or next of kin. His primary duty is to see that the will is probated, and not that it is declared invalid either in whole or in part. He has no interest in the .estate except as. an executor of the will.

Section 2624 is a general enactment along/the line of an- earlier statute applying to the Surrogate’s Court of the county of Rew York. This statute, chapter 359, Raws of 1870, reads, “in cáse the validity of any of the dispositions contained in'such will is contested, or their construction or legal effect called in question, by any of the heirs, or next of kin of the deceased," or ' any legatee "or devisee ■ named in the will, the surrogate shall have .the same power and jurisdiction as is now vested in and exercised by, the Supreme Court, to pass upon and determine the true eon-’ stmetion, validity and legal effect thereofi’? . :

*453Commissioner Throop in Ms note to section 2624 .of the Oode, says that it was taken from tMs provision of the law of 1870, and that “ It has been so formed as to confine its application to a strictly domestic will, and to a will of personal property, and as thus amended, the provision has been extended, to all Surrogate’s Courts.” Thus evidently it was not the intention of the codifier to alter or vary the meaning of the act of 1870, except to’ restrict it, in cer- ' tain particulars. Under the provisions of that act there is no question, but that Mr. Reid would be precluded from interposing Ms answer herein raising the question of validity.

It would seem on general principles of interpretation that no person should be entitled to an adjudication under tMs section as to the validity of a will, unless ‘he claims- some interest under it, in the personalty bequeathed, or, that by reason of some invalid disposition of such personalty be is entitled to a share of the same under the statute of distributions. Mr. Reid occupies neither of these positions.* He is not a legatee or one of the next of kin of the decedent. He has no such interest as should enable Mm to invoke the jurisdiction of this court under section 2624.

Mary E. Robertson, a, niece and one of the next of Mn of the decedent and a legatee named in the will also intervenes and interposes an answer to the petition herein, asMng that the: “ disposition 'of {personal property in said will contained to said Boards of Missions be adjudged illegal, invalid and void.”

In support of this contention a Pennsylvama statute enacted in 1855 is cited. TMs law is entitled “ An act relating to' corporations and to estates held for corporate, religious and charitable uses.” We are concerned only with the eleventh and fifteenth sections of tMs act, wMch read as follows:

Section 11. “No estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or 'to any person in trust for religious or charitable uses, except the same be done by deed or will,. attested by two credible, and at the same time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all' dispositions of property contrary hereto, shall be void, and go to the residuary legatee or devisee, next of Mn or heirs, according to- law, provided that any dispositions of property witMn said period, *bond fide,*made for a fair, valuable consideration, shall not be hereby avoided.”

Section 15. “All dispositions of property hereafter made to religious, charitable, literary, or scientific uses, and all incorpora*454tions or associations formed for such, objects shall be taken to have been made and formed under, and in subordination to all the duties and requirements ci-f this act, as) rules of property and laws for their government.”

In the case of Kerr v. Dougherty, 19 N. Y. 327, the decedent’s will was executed, December 8, 1896. • He was a resident of the state of New York, and died December 31, 1896, within one calendar month after its execution. In the tenth clause of his will he bequeathed the sum of $5,000 to the trustees of the General Assembly of the Presbyterian Church of the United' States of America., for religious and- charitable, purposes. The legatee was a corporation organized under the laws of the state of Pennsylvania, for'religious and charitable objects. In that case the Court of Appeals held that the bequest being in contravention of the Pennsylvania statute- of 1855, was void in Pennsylvania, where the legatee was organized and had a domicile, and was consequently void in New York where the ^testator resided. In . the prevailing opinion, the majority of the court fortified its position by reference to an" earlier decision in the same court, Chamberlain v. Chamberlain, 43 N. Y. 424, in which it was held that the validity of the bequests of a will, will depen’d on the law of the legatee’s domicile and of the government to which the fund is to be transmitted for administration. Judge Allen in this earlier case wrote “ Whatever may he the law of Pennsylvania, a testator domiciled in that state cannot establish by bequests of personalty to citizens or corporations of this state, a charity or trust to be administered here inconsistent with the policy or the laws of this state. A gift by will of a citizen of this state, to ,a charity, or upon a trust to be administered in a sister state, which would be lawful in-this state, the domicile of the donor, Would not be sustained, if it was not in accordance with the laws of the state, in which the fund was to be administered.”

In every essential fact the .case at bar is precisely 'similar to that of Kerr v. Dougherty. In no way can théy be distinguished nor can any distinction be drawn between them as . to the facts or principles involved.

The learned counsel for the proponent claims, however, that the decision of the court in Kerr v. Dougherty has been overruled] by later decisions in every principle, that applies to the case 'under consideration.

In support of this contention he cites Hope v. Brewer, 136 N. Y. 138. In this case it is simply held that bequests valid at the *455testator’s residence are valid everywhere, if the legatees have the legal capacity to take and administer the bequests. In Kerr v. Dougherty it is decided that the limitation of the Pennsylvania statute applied to the power to take as well as to the power to give and that the legatee in that case had no power to take. There is no variance in these holdings of the court. The doctrine enunciated in Hope v. Brewer indeed, distinctly affirms that laid down in Kerr v. Dougherty.

The proponent also cites the case of Dammert v. Osborn, 140 N. Y. 30. A careful study, however, of the very able opinion in that case shows conclusively that the decision is not in conflict with that of Kerr v. Dougherty, but rather in entire harmony "with it. In Dammert v. Osborn the testator was domiciled ,and died in Peru, but his property at the time of his death was largely within this state. In his will he provided for "the establishment in New York city of a home for poor children. It was contended that the legacy was void because in contravention of the statutes of New York against perpetuities. Judge O’Brien in his opinion says, “ The law allows and in every proper way encourages such- gifts, and sustains them, when capable of execution. * * * There is no law that forbids gifts to charity here by testators in other countries, or that requires us to reject the gift unless it is made in all respects, in conformity with our local law. .* * * When that statute (as to suspension of alienation) was passed it was not within the legislative purpose to interdict dispositions made ¡ in other countries, to take effect here. There is nothing in the language used that indicates such a purpose. * * * Our-law permits the citizens or subjects of other countries to dispense charity here in such measure as they wish and according to such methods as their own laws prescribes.” Evidently the learned judge had in mind the case of Kerr v. Dougherty in which 'it is expressly held that in Pennsylvania under the statute of 1855, the right to takecthe bequest was absolutely denied. Our statutes allow such bequests while the law of Pennsylvania forbids them. The decision in Dammert v. Osborn, not .only does not conflict with that of Kerr v. Dougherty, but is in full agreement with it.

It is further argued against the acceptance in this court of the decision in Kerr v. Dougherty, that Judge Earl dissented from the .doctrine as promulgated by a majority of the court and that he wrote a very able and logical dissenting opinion. This is correct, but four years later in writing upon the same question, in *456Hollis v. Drew Theological Seminary, 95 N. Y. 166, he held that gifts to charitable, benevolent, scientific or educational institutions are not against public policy ;and that there is no public policy outside of the statutes which condemns testamentary gifts as to such institutions, which was precisely the theory of Kerr v. Dougherty where a statute is held to preclude the bequest. In his opinion in this case, Judge Earl expressly commends and confirms the. decision of the court in Kerr v. Dougherty, in the following lam guage: “ There too, there was under consideration a bequest to a Pennsylvania corporation,, and if that bequest had been void as against the public policy of this state there would have been no occasion to resort to the law of Pennsylvania and to hold, as we did, that the bequest was void because of an act of that state which prohibited such bequests by a will, executed within a month before the death of the testator.”

The decision of a Pennsylvania court of inferior jurisdiction, Hildeburn’s Estate, 16 Co. Ct. Rep. 39, is cited which construes the statute of 1855 differently from the Court of Appeals of New York. This County Court ■ decision holds that Pennsylvania corporations are not by that act precluded from taking bequests valid at the place of the testator’s residence.

Under the well-established rules of *res judicata*this decision of an inferior court in a foreign • jurisdiction can. receive nonconsideration here as against the authority of. our own court of highest appellate jurisdiction.

Moreover the courts of our state have considered the question involved, since this decision was rendered ,in the inferior Pennsylvania court. In Carter v. Board of Education of Presbyterian Church, 68 Hun, 436, the validity of a bequest to the defendant, a Pennsylvania corporation whose purposes were, religious and charitable, was in controversy. The testator died within one calendar month after the execution of his will. The General Term unanimously adjudged the bequest to the board of education void, citing Kerr v. Dougherty ás authority- ■ This was several years after the County Court of Pennsylvania had rendered its decision. The case was carried to the. Court of Appeals and there the phase-of it which is of interest to us was disposed of in the following language in the opinion of Judge Gray, 144 N. Y. 621. *“*Two of the specific bequests to the religious corporations (one of which was the one to the board of education), were declared to be invalid, and their invalidity is not in question here.”

*457Thus as late as 1893 the authority of Kerr v. Dougherty was' distinctly reaffirmed in this state by the Supreme Court/at General Term and in 1895 the doctrine of that case was recognized by/the Court of Appeals.

A decree should be entered herein admitting the will of. the decedent, to probate; dismissing the answer of the executor and petitioner John Me. A. Reid, declaring the second clause of the said will invalid and void, and adjudging the twentieth clause thereof, also invalid and void so far as the same bequests of the personal property of the decedent to the Boards of Missions of the United Presbyterian Church of North America.

Decreed accordingly.