as to the lapsing of the legacies was of any force or effect, or was within the power of the surrogate, even if proper service of the citation had been made upon the religious corporations now appearing. The citation only purported to require the parties to appear to attend a settlement of the accounts of the executor. Section 2743 provides that

and any part of the the decree must

"Where an account is judicially settled estate remains, and is ready to be distributed direct the payment and distribution thereof to the persons so entitled, according to their respective rights."

[1] It is therefore doubtful whether the surrogate had the power to decree that the legacies in question had lapsed, when there were no funds available or ready to be applied in payment of the legacies. If one of the claiming religious corporations herein had become cognizant of the citation, and had sent a representative to look at the executor's account on file, before the return day of the citation, he might、 well have concluded that there was no necessity for appearing upon the accounting, as there would not be sufficient funds at that time, after the allowances of commissions and counsel fees, to pay any part of the legacies mentioned in the nineteenth and twentieth clauses. As it turned out, only the sum of $1,344 was available to be applied upon the legacy contained in the eighteenth clause, and nothing was available at that time for payment upon the legacies mentioned in the nineteenth and twentieth clauses. If the question as to the lapsing of the legacies was not properly before the court at that time, the decree was of no binding force, except as to the matters embraced in the accounting up to and including the date of the decree. Matter of Peck, 131 App. Div. 81, 115 N. Y. Supp. 239.

[2] But I am satisfied that in any event no jurisdiction was obtained as to the corporations now appearing and making claim for the legacies contained in the nineteenth and twentieth clauses of the will. The citation was issued to "Church Extension Society of Presbyterian Church, unknown," and "Church Extension Society of Congregational Church, New York City, N. Y." There was no personal service upon any association or corporation, in accordance with the citation directed to "Church Extension Society of Presbyterian Church," nor was there any appearance in accordance with such citation upon the acounting. No personal service appears to have been made to comply with the citation directed to "Church Extension Society of Congregational Church," and there was no appearance in accordance therewith, except an admission of service signed, "The Congregational Church Extension Society of New York and Brooklyn, by G. W. Hebbard, Treas." That society also appeared by an attorney upon the accounting. It seems to have been an unincorporated society, not entitled to take a legacy at that time. It was only a local society of limited scope, operating within the cities that were then New York and Brooklyn, and not identified in any way with the corporation claiming the legacy in this proceeding. It seems clear that, in the absence of proper personal service or proper appearance, the publication of the citation upon the former accounting, directed

(184 N.Y.S.)

to "Church Extension Society of Presbyterian Church, unknown," and "Church Extension Society of Congregational Church, New York City, N. Y.," was insufficient to obtain jurisdiction of the religious corporations appearing in the present accounting.

Section 2742 of the Code provides that

"A judicial settlement of the account of an executor or administrator, either by the decree of the Surrogate's Court, or upon an appeal therefrom, is conclusive evidence, against all the parties who were duly cited or appeared, and all persons deriving title from any of them at any time," as to the facts set forth in such section, "and no others."

In Hood v. Hood, 85 N. Y. 578, the court said:

"An executor, who desires to protect himself by an accounting, should consequently see that proof of the service of the citation is preserved."

In that case the court held that a decree upon an accounting was not binding upon infants, in the absence of any evidence of service upon them, or upon their mother, in whose custody they were.

[3, 4] It appears from the evidence herein that at the time that the testator made his will there were no corporations or unincorporated societies answering to the names in the nineteenth and twentieth clauses of the will. Parol evidence was therefore competent to ascertain who were intended by the testator. Lefevre v. Lefevre, 59 N. Y. 434. For that purpose testimony was given by the pastor of the church attended by the testator. Although the testator's statements were made a long time ago, the pastor detailed them very clearly and very convincingly. The testator expressed a desire to make a bequest to the "Church Extension Society of the Methodist Episcopal Church," although there was, at that' time, no corporation of that name, but there was a corporation having the name of "Board of Church Extension of the Methodist Episcopal Church." It is undisputed that that corporation is entitled to the legacy mentioned in the eighteenth clause of the will, a part of which legacy has been paid to such corporation pursuant to the decree made in 1901. Testator spoke of the work of the Church Extension Society-of his sympathy with it in the building of new churches. He spoke of being about to make his will, and that he wished to give bequests to the Church Extension Societies of the Methodist Episcopal, of the Presbyterian, and of the Congregational churches, grouping them together. He spoke of the interest that he felt in the work of building churches, and that he had become interested in it through hearing an apostle named Chaplain McCabe, who was the secretary of the Church Erection. Society.

It appears from the act incorporating the Church Extension Society of the Methodist Episcopal Church (the name of which was later changed by legislative act to the "Board of Church Extension of the Methodist Episcopal Church") that its purpose is to aid, wherever necessary, in the securing of suitable houses of public worship, and such other church property, as may promote the general design of the Methodist Episcopal Church. It appears that after its incorpora

184 N.Y.S.-5

tion the work of the Board of the Church Erection Fund of the Presbyterian Church was frequently referred to as "church extension," and that the primary object of that corporation was the promotion and building of new churches in the denomination where needed, especially in unsettled communities. It also appears that the aims, purposes, and activities of the American Congregational Union (the name of which corporation has since been changed to the Congregational Church Building Society), while not expressed in the same language, are identically the same as the aims, purposes, and activities of the Board of Church Extension of the Methodist Episcopal Church and the Board of the Church Erection Fund of the Presbyterian Church. It also appears that there were no other corporations or unincorporated associations created for the same purposes or doing the same work in the respective denominations at the time when the testator made his will. As the court said in Lefevre v. Lefevre, supra: "A corporation may be designated by its corporate name, by the name by which it is usually or popularly called and known, by a name by which it was known and called by the testator, or by any name or description by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, may, in all cases be proved by parol."

See, also, Walter v. Walter, 60 Misc. Rep. 383, 113 N. Y. Supp. 465, affirmed 133 App. Div. 893, 118 N. Y. Supp. 268, affirmed 197 N. Y. 606, 91 N. E. 1122.

The Board of the Church Erection Fund of the General Assembly of the Presbyterian Church in the United States of America is entitled to the legacy mentioned in the nineteenth clause of the will of the testator, and the Congregational Church Building Society is entitled to the legacy mentioned in the twentieth clause of the will of the

testator.

Decree may be entered accordingly.

(184 N.Y.S.)

In re KELSEY'S ESTATE.

(Surrogate's Court, New York County. June 14, 1920.)

Wills 865 (4)—Lapsed bequest in trust for remaindermen distributable among next of kin as residue undisposed of.

Where the residuary clause expressly excluded trust funds, the principal of such funds on the lapse of contingent remainders on the death of the remainderman without issue during the life of the life tenant should be distributed to representatives of those who were testator's next of kin at time of his death, under the statute of distributions as it then existed; the testator having died intestate as to the principal of such trust.

In the matter of the estate of Charles Kelsey. Proceeding to construe will. Decree rendered.

See, also, 184 N. Y. Supp. 68.

Murray, Prentice & Howland, of New York City (Robert H. Strahan, of New York City, of counsel), for substituted trustee.

Wellman, Smyth & Scofield, of New York City (Frederic C. Scofield and Ralph W. Thomas, both of New York City, of counsel), for executor John B. Kerr.

Edward J. McGuire, of New York City, for Nellie Kelsey.

Geller, Rolston & Blanc, of New York City, for executors of Anna K. Barbey.

Isham Henderson, of New York City, for Kie K. Jenkins.

FOLEY, S. I am constrained to follow, upon the construction of the clause involved here, the same interpretation given similar clauses by the Surrogate's Court in 1893 and the Supreme Court in 1914 (opinion of Delehanty, J.). The remainders limited on the life of Anna K. Barbey are contingent and not vested. Matter of Baer, 147 N. Y. 348, 41 N. E. 702; Matter of Crane, 164 N. Y. 71, 58 N. E. 47; Metropolitan Trust Co. v. Krans, 186 App. Div. 368, 174 N. Y. Supp. 541. The intent of the testator in this regard is clearly shown by the language used in creating the remainders.

As the testator's children, Charles and Helen, died without issue in the lifetime of the life beneficiary, nothing passed to their representatives under the terms of this trust. The clause in the tenth paragraph of the will expressly excludes the funds required to set up the above trust. Therefore the lapsed remainder does not pass under a residuary clause. Kerr v. Dougherty, 79 N. Y. 327; Stephenson v. Ontario Orphan Asylum, 27 Hun, 383. It follows that the testator died intestate as to the principal of this trust, which should be distributed to the representatives of those who were next of kin at the time of testator's death (Clark v. Cammann, 160 N. Y. 315, 54 N. E. 709), under the statute of distributions as it then existed.

The intention of the testator to exclude his son Oscar is not frustrated by this construction, because Oscar died intestate, unmarried and without issue. Tax costs and settle decree on notice, construing the will accordingly.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

In re KELSEY'S ESTATE.

(Surrogate's Court, New York County. September 3, 1920.)

Wills 782 (10)—Surviving wife, receiving provision in lieu of dower, entitled to share in lapsed bequest in trust.

Where, on the lapse of a contingent remainder, because of remainderman's death without issue before death of life tenant, so that the principal of trust fund became distributable to those who were testator s next of kin at time of his death, testator's wife, for whom he had made provision in will "in lieu of dower," with right to share in the residue of estate, held entitled to her one-third share of the fund.

In the matter of the estate of Charles Kelsey. On settlement of decree of distribution, objected to by Nellie Kelsey. Objection overruled, and decree signed.

See, also, 184 N. Y. Supp. 67.

FOLEY, S. My decision in this matter (184 N. Y. S. 67) held that the remainders limited on the life of Anna K. Barbey were contingent, and that the testator died intestate as to the principal of the fund directed to be held in trust for her life. This fund is to be paid to those answering the description of distributees at the time of the death of testator.

The matter now comes before the surrogate on the settlement of the decree. Objection is raised by Nellie Kelsey to any provision in the decree providing for payment of one-third of the above-mentioned sum to the estate of the widow of testator. In support of this objection Matter of Silsby, 229 N. Y. 396,1 Matter of Benson, 96 N. Y. 499, 48 Am. Rep. 646, Chamberlain v. Chamberlain, 43 N. Y. 424, and Matter of Hodgman, 140 N. Y. 421, 35 N. E. 660, are cited. These cases are distinguishable from the present case. In Matter of Silsby, supra, it was held that the widow, having consented to accept the provisions of the will in lieu of dower and other interests in the testator's estate, was not entitled to share in the property not effectually disposed of by the will. In Matter of Benson the widow was similarly barred because she had accepted the provisions of the will which provided that they be "accepted and received by her in lieu and bar of her dower and of all claims she may have upon or against the" testator's estate. In Chamberlain v. Chamberlain the widow was barred from sharing because she accepted the provisions of the will under the condition imposed by the testator. The condition was that "if she accepts the provisions here made for her she shall not be entitled to receive any other share or interest in my estate." Similarly in Lee v. Tower, 124 N. Y. 370, 26 N. E. 943, the widow, having accepted the provisions of the will which were declared therein "to be in lieu, substitution, and satisfaction of her dower, thirds and all other interest in my estate real and personal and mixed," was barred from sharing.

In the present case, however, the will of testator gives one-fifth part of the entire net proceeds to his wife "in lieu of dower." The

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1128 N. E. 212.