First Department, June, 1921.

[Vol. 197 concluding words of the clause, the lineal descendants "to be entitled to the portion to which their parent would have been entitled if living."

The use of the words "in equal portions," when applied to the issue of a deceased beneficiary, has been held sufficient to show an intent that the issue should take per stirpes and not per capita. (Matter of Union Trust Co., 170 App. Div. 176, 178; affd., 219 N. Y. 537.) [While the Court of Appeals has been very tenacious of the rule declared in Soper v. Brown (136 N. Y. 244, 250), that "under a gift to 'issue' where the word is used without any terms in the context to qualify its meaning, the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of deceased children, take in equal shares per capita and not per stirpes, as primary objects of the disposition," the courts have been astute to discover some faint glimpse of a contrary intention in order to escape applying the rule. (See cases cited in Petry v. Petry, 186 App. Div. 738, and in addition Matter of Durant, 231 N. Y. 41.) In passing we might observe that although the Court of Appeals was not impressed by the unanimous request of this court that they should reverse the rule declared in Soper · v. Brown (supra) and adopt instead the Massachusetts rule (Dexter v. Inches, 147 Mass. 324; Jackson v. Jackson, 153 id. 374; Coates v. Burton, 191 id. 180; Silsbee v. Silsbee, 211 id. 105), and refused to consider the request (Petry v. Langan, 227 N. Y. 621), the Legislature has adopted the latter rule, by adding to the Decedent Estate Law section 47a which provides: "If a person dying after this section takes effect shall devise or bequeath any present or future interest in real or personal property to the 'issue' of himself or another, such issue shall, if in equal degree of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intent is expressed in the will." (Laws of 1921, chap. 379, in effect April 30, 1921.) Hereafter courts will be relieved of the necessity of searching for "faint glimpses" and "slight traces" in order to give effect to what they believe to be the intention of the testator.

In the case under consideration the words "lineal descendants" are synonymous with "issue." (Schmidt v. Jewett, 195 N. Y. 486.) Reading the 5th clause of the will as a whole

App. Div. 266]

First Department, June, 1921.

it is my opinion that it sufficiently shows that this testatrix intended that the income should be distributed to the descendants of her deceased son per stirpes and not per capita.

The findings as conclusions of law will be reversed, and the judgment modified in accordance with this opinion, and as modified affirmed, with costs to all parties appearing and filing briefs in this case, payable out of the fund in the same manner as the costs are directed to be paid by the judgment. Submit order containing new conclusions of law.

CLARKE, P. J., LAUGHLIN and MERRELL, JJ., concur; SMITH, J., dissents.

SMITH, J. (dissenting):

66

Recognizing the rule that the presumption in this State favors a per capita distribution, and that the presumption yields to a very faint glimpse of a different intention (Matter of Farmers' Loan & Trust Company, 213 N. Y. 173, 174), I am unable to find from the record any glimpse of a different intention. The distribution of the surplus dividend is directed to be given to the lineal descendants of such deceased son in equal shares." Immediately thereafter, in the next paragraph, the will provides for a distribution of the corpus of the trust fund after the death of Mary E. Yates. This distribution is directed" equally between my said sons the lineal descendants of any deceased son to be entitled to the portion to which their parent would have been entitled if living." There appears to be no reason why the direction for the per stirpital division which governs the distribution of the corpus of the fund should not have been included in the provision for the distribution of the surplus income, if the testator had so desired. In fact, the contrary intention would seem to be indicated by the omission. We have no knowledge of the reason why a different direction has been given for the distribution of the surplus income and of the principal. Nor with that reason are we concerned, unless there be something in the will to indicate an intention for the distribution of the surplus income among the lineal descendants of the deceased son otherwise than an equal distribution thereof as directed. While the courts of this State recognize the rule of per capita

Second Department, June, 1921.

[Vol. 197 distribution where the contrary intent is not in some way indicated, effect must be given to that rule, and the rule should not be disregarded in this case unless we can find some intent to apply a different rule to the distribution of this surplus income from that which is, as I view it, both presumed and directed by the will.

I vote for affirmance.

Judgment modified as directed in opinion and as so modified affirmed, with costs to all parties appearing and filing briefs payable out of the fund. Settle order on notice.

EDWARD J. BAIRD, Respondent, v. GRACE CHURCH OF MILLBROOK, Sued Herein under the Fictitious Name of "THE RECTOR, CHURCHWARDENS AND VESTRYMEN OF GRACE CHURCH, MILLBROOK, IN THE TOWN OF WASHINGTON, COUNTY OF DUTCHESS AND STATE OF NEW YORK, A RELIGIOUS CORPORATION," Appellant.

Second Department, June 17, 1921.

Religious corporations - Protestant Episcopal church - action for breach of contract engaging plaintiff as rector - complaint states facts sufficient to constitute cause of action motion by defendant for judgment on pleadings - denials and new matter in answer not available where reply admitting new matter not interposed. Complaint in an action against a Protestant Episcopal church for breach of contract by which the plaintiff was engaged to act as rector examined, and held, that a motion by the defendant for judgment on the pleadings upon the ground that the complaint does not state facts sufficient to constitute a cause of action should be denied, though the complaint contains many averments which are not facts, making it subject to criticism under sections 545 and 546 of the Code of Civil Procedure. On a motion by a defendant for judgment on the pleadings consisting of the complaint and an answer containing denials and separate defenses, the denials do not aid the defendant, and the allegations of new matter in the separate defenses cannot be considered where no reply is interposed admitting them, since under section 522 of the Code of Civil Procedure, they are deemed controverted by the plaintiff by traverse or avoidance as the case requires.

App. Div. 272]

Second Department, June, 1921.

APPEAL by the defendant, Grace Church of Millbrook, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 5th day of April, 1921, denying defendant's motion for judgment on the pleadings dismissing the complaint.

George Zabriskie, for the appellant.

Harold K. Hines, for the respondent.

KELLY, J.:

The defendant moved for judgment upon the pleadings upon the claim that the complaint did not state a cause of action. The denials contained in the answer do not help the defendant, and there is no reply to the new matter in the separate defenses pleaded, which must, therefore, be deemed controverted by the plaintiff by traverse or avoidance as the case requires. (Code Civ. Proc. § 522.) While the complaint contains many averments which are not facts, making it subject to criticism, this is not such a motion under sections 545 and 546 of the Code of Civil Procedure.

We, however, find allegations that plaintiff is a qualified ordained minister in the Protestant Episcopal church; that on May 7, 1918, at a meeting of the vestry, a resolution was adopted by a majority vote, calling the plaintiff to be the rector of Grace Church; that plaintiff was notified by the clerk in writing of such action of the vestry, which it is alleged represented the people of the parish; that the plaintiff accepted the call in writing to the clerk; that the defendant agreed to pay plaintiff a salary of $1,800 per year with the use of the rectory; that the pastoral relation arising from an election of a minister as rector is for life, unless otherwise specified; and that plaintiff's election and engagement as rector has never been dissolved in the manner provided by the canons of the church; that at the time of his election and of the agreement pleaded, the plaintiff had a canonical residence in the diocese of Central New York; that in accordance with the laws of the church he had obtained a certificate of transfer from the bishop of that diocese which APP. DIV.- VOL. CXCVII. 18

Second Department, June, 1921.

[Vol. 197 he duly presented to the bishop of New York, who agreed to accept the transfer and acknowledge the plaintiff as rector of Grace Church when he received the notice of plaintiff's election from the church wardens, which, it is stated, they were required to transmit to the bishop by the canons; that due demand has been made on the defendants but that they have neglected and refused to send the required notice; that by reason of this refusal the bishop is prevented from recognizing plaintiff as rector and that plaintiff is thus unable to enter upon performance of his duties, to his loss and damage. He alleges that he has been at all times ready, able and willing to perform his obligations under the contract which he alleges was made by defendants and accepted by him.

Section 42 of the Religious Corporations Law provides: "The vestry may, subject to the canons of the Protestant Episcopal Church in the United States, and of the diocese in which the parish or church is situated, by a majority vote, elect a rector to fill a vacancy occurring in the rectorship of the parish, and may fix the salary or compensation of the rector." The canons and customs of a religious denomination must be proved as matters of fact (Youngs v. Ransom, 31 Barb. 49), and no doubt will be material upon the trial. In the absence of a reply, such excerpts from the canons set out in the answer are not admitted as already pointed out. We express no opinion upon the merits of the action. We think the learned justice at Special Term rightly denied defendant's motion for judgment.

The order is, therefore, affirmed, with ten dollars costs and disbursements.

BLACKMAR, P. J., RICH, JAYCOX and MANNING, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.