#### Matter of the Estate of Mary Foley, Deceased.

(Surrogate’s Court, Otsego County,

April, 1899.)

1. Religious corporations — Devise within sixty days of death of devisor.

The objection that a . will, devising property to a church, was executed within sixty days of the death of the testatrix is not available where it appears, that the church was incorporated under chapter *7860 of. the Laws of 1813, as its right to take by will is not affected by section 6 of chapter 319 of the Laws of 1848, nor by the General Corporation Law, or by the Religious Corporation Law, or by the Membership Corporations Law.

S. Same — Evidence aliunde to show the true object of a devise. .

A devise to “ St. Mary Roman Catholic Church of Cooperstown, N. Y.” may be shown by parol, or other competent evidence, to have been Intended for the “ Church of the Lady of the Lake, Cooperstown, N. Y.,” such being its true name..

Proceedings in. the Surrogate’s Court of Otsego county for the probate of a paper writing purporting to be the last will and testament of Mary Foley, deceased.

James W. Tucker, for proponent.

A. R. Gibbs, for contestant.

Arnold, S.

The paper writing here offered for probate as the last will and testament of Mary Foley, deceased, was duly executed, published and declared by her as and for her last will and testament in conformity with the laws of the state of Few York, and is entitled to he admitted to probate.

The only question to he passed upon is the one-raised by the contestant’s answer, which is,. that this will having been executed within.sixty days before the death of the, testatrix, that the gift and devise to the Roman Catholic Church of Cooperstown, FT. *Y'.,*•is .void. This residuary clause reads as follows:

“ Fifteen. All the rest, residue and remainder of my property of. every name and nature I give, devise and bequeath unto St. Mary Roman Catholic Church of Cooperstown, FT. Y., the same, to be applied toward the.liquidation of the indebtedness of said church.”

This church was incorporated under chapter 60 of the Laws of 1813. Its right to take by last will and testament is not affected by the provisions of section 6' of chapter 319 of the Laws of 1.848. FTor is it affected by the General Corporation Law, or Religious Corporation Law, or the Membership Corporations Law. . The question raised is not an open one. Hollis v. Drew Theological Seminary, 95 N. Y. 166; Matter of Lampson, 22 Misc. Rep. 198; .affirmed in 33 App. Div. 49.

*79The gift and devise here is to “ St. Mary Ponían Catholic Church of Cooperstown, X. Y.” That is the name by which, this church is generally and commonly known. The true name of the corporation is “ Church of the Lady of the Lake, Cooperstown, X. Y.”

The proof shows that the intended object of the testatrix’s bounty was this corporation. It is well settled that a misnomer of a legatee or devisee, whether that legatee be an individual or a corporation, will not invalidate the gift or devise, if. the true object of the testator’s bounty can be ascertainéd either from the will itself or by evidence *aliunde.*

It was proper in this case to establish the true name of the corporation by parol or other competent evidence. Lefevre. v. Lefevre, 59 N. Y. 434. A decree admitting this paper writing to probate and adjudging the residuary clause valid may be entered.

Decreed accordingly.