Opinion
January 26, 1966
Harry E. Lorenzo and John I. O'Day for petitioner.
Bernhard J. Huber for estate.
John H. Dittman for Kensington Evangelical Lutheran Church of Buffalo.
This is a proceeding brought by a brother of the above-named decedent, who died a resident of this county on the 4th day of November, 1964, leaving a last will and testament dated July 27, 1957, which was admitted to probate on November 12, 1964, requesting this court to construe paragraph FOURTH of said last will. "FOURTH: All the rest, residue and remainder of my estate, both real and personal and wheresoever situate, I give, devise and bequeath to TABER EVANGELICAL LUTHERAN CHURCH, a religious corporation organized under the laws of the State of New York, having its present place of worship at 265 Leroy Avenue, Buffalo, New York."
By an order of the Erie County Supreme Court granted March 18, 1963 the Tabor Evangelical Lutheran Church, mentioned as residuary beneficiary in paragraph FOURTH, was consolidated with the Kensington Evangelical Lutheran Church of Buffalo. The petitioner contends that because of this consolidation the charity mentioned in paragraph FOURTH no longer exists, so that the residual estate should pass by intestacy and hence partially to the petitioner.
This court took extensive testimony concerning the actual merger of these two churches, together with various transactions and negotiations leading thereto. In effect, the merger came about as a result of Tabor Evangelical Lutheran Church having lost its minister and a general decline of the number of parishioners.
All assets, including certain real property, plus liabilities, were transferred as a result of the merger to Kensington Evangelical Lutheran Church of Buffalo. Nearly all of the members of "Tabor's" Council were absorbed into and became members of the Kensington Council.
Testimony was given by a secretary of the attorney who handled the merger between the churches to the effect that sometime after it became final the decedent personally called their office to inquire about changing his will. After consulting with the attorney the secretary advised the decedent, in a subsequent telephone conversation, that the merger had been completed and that Tabor Evangelical Lutheran Church was now known as Kensington Evangelical Lutheran Church of Buffalo. The decedent stated to this witness that he wanted the property to go to the Kensington Evangelical Lutheran Church of Buffalo and that he did not feel it was necessary to change his will.
Although legally Tabor "no longer has any existence", for all intents and purposes it is now operated as Kensington Evangelical Lutheran Church. This court is satisfied that its aims and purposes are similar to that of Tabor and hence the gift set up in paragraph FOURTH should be given to Kensington Evangelical Lutheran Church of Buffalo.