In re Young Men's Christian Ass'n of Waterford

LANDON, J. We think the petition should have been dismissed. Section 2722, Code Civ. Proc., provides that: “The decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner; (1) When an executor or administrator [855] files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality, absolutely, or on information and belief.” The executors deny the incorporation of the petitioner, and allege its nonincorporation, and therefore deny the validity of the petitioner’s claim. An unincorporated society or association cannot take an immediate gift under a will, as legatee or devisee. White v. Howard, 46 N. Y. 144; Williams v. Williams, 8 N. Y. 524; Marx v. McGlynn, 88 N. Y. 375. The validity of claim was disputed, and the surrogate should have dismissed the proceeding. In re Callahan’s Estate, 152 N. Y. 320, 46 N. E. 486; Fiester v. Shepard, 92 N. Y. 255; In re Hammond, 92 Hun, 478, 36 N. Y. Supp. 1074. As the surrogate could not try the validity of the claim, he could not receive the articles of association in evidence. The claimant insists that the facts set forth in the answer do not sufficiently show that it was doubtful whether the petitioner’s claim was valid or legal. We think otherwise. The single fact in question is whether the petitioner was a corporation. The allegations of the answer distinctly present that issue. The order appealed from is reversed, with $10 costs and disbursements, and an order must be entered dismissing the petition. All concur.