Lefevre v. Lefevre — 59 N.Y. 434

Majority

p. 434

Pamelia A. Lefevre, Executrix, etc., Respondent, v. Isaac Lefevre et al., Appellants, The American Female Guardian Society, Respondent.

Headnote

A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision, if either from the will itself or evidence, aliunde, the object of the testator’s bounty-can be ascertained.

To identify a particular corporation as the one intended, where a name other than the corporate name is used, the identity may be proved by parol evidence

The will of L. contained a bequest to the “ Home of the Friendless, in Hew York.” There was no institution of that name. The bequest was claimed by defendant, the “American Female Guardian Society,” incorporated by special act of the legislature, whose object and purpose ,was " declared by its charter to be to “ establish and maintain houses of industry and homes for the relief of friendless or unprotected children.” In other places therein these were termed home or homes for the friendless. Over its principal building was placed the name, “ Home for the Friendless;” the corporation was so styled in its circulars, and also thus, or 1 ‘ Home of the Friendless,” indifferently by its officers and friends and by the testator. Held, that said defendant was the beneficiary intended and would, if the bequest had been valid, have been entitled to its benefit.

But held (Allen, J., dissenting), that as, by the act incorporating defendant (§4, chap 244, Laws of 1849), the power was given to it “ to receive, by gift or devise, in the same manner and subject to the same restrictions as provided in the general laws for the incorporation of religious and benevolent associations,” the provisions of the general act for the incorporation of benevolent and other societies (chap. 319, Laws of 1848) restricting their capacity to take applied to defendant; that the provi

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sion of said act (§6) declaring no devise or bequest to corporations formed under the act should be valid, unless, the will was made and executed two months before the testator’s death, was a restriction upon their general capacity to take; and it appearing that the will of L. was made less than two months prior to his death, the bequest was void.

(Submitted November 12, 1874;

decided January 19, 1875.)

Also held (Allen, J., dissenting), that the said provision of the act of 1848 was not repealed by the act of 1860 “relating to wills.” (Chap. 360, Laws of 1860.)

Even if it should be held that it was so repealed, the repealing act being general applies only to corporations deriving their powers from a general act, and did not repeal or modify tbe charter of said defendant. (Allen, J., dissenting.)

Lefevre v. Lefevre (2 N. Y. S. C. [T. & C.], 330) reversed.

The will of L. gave to his wife one-third of his estate. It was not stated to be in lieu of dower or other claim. The residuary bequest was declared void. Held, that the testator died intestate as to that portion of his estate not validly disposed of by the will, which was to be distributed under the statute of distributions (2 R. S., 96, § 75); that the acceptance by the wife of the provision for her was not a waiver of her right to share in the distribution; but that she was entitled to her proportion as prescribed by the statute.

Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment entered upon the decision of the court at Special Term. (Reported below, 2 H. Y. S. O. [T. & O.], 330.)

This was an action to obtain a construction of the will of William C. Lefevre, late of Carthage, Jefferson county.

The testator made his will on the 1st day of March 1872, and died on the third day thereafter leaving a wife but no children surviving him. His estate was valued at $47,000 all of which was personal except about $2,000 in value of real property. He owed at the time of his death about $1,000.

By his will he gave one-third of his estate both real and personal, after the payment of his debts, to his wife the plaintiff herein. He gave one other third to the “ Home of the Friendless in Hew York,” and legacies to various religious societies and individuals, to the aggregate amount of $8,250, and the remainder of his estate he left “ to the care of his wife to be disposed of as she shall see fit in charitable pur

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poses,” and appointed her executrix. A legacy of $1,000 to “ the Baptist Church,” was held void by the Supreme Court for the reason that the legatee was not sufficiently designated or identified and the clause placing in the care of the wife the residue of the estate was held invalid, as attempting to create a trust not authorized by law. There is no appeal from these clauses of the judgment. It was adjudged by the Supreme Court that so much of the residue of the estate as was attempted to be placed at the disposal of the wife for charitable uses was undisposed of by the will and should be distributed as in a case of intestacy. The defendants the heirs at law and next of kin of the testator appeal from this part of the judgment “in so far as such distribution would include the plaintiff as testator’s widow.” The defendant “ The American Female Guardian Society,” claimed, and was by the Supreme Court adjudged entitled to the benefit of the gift to the Home of the Friendless in Hew York, and from this portion of the judgment the other defendants appealed. The court below awarded costs to the defendants who had appeared and answered, to be paid out of such moneys as should remain after the payment of the debts of the testator and the valid legacies, and from this direction so far as it awarded costs to the said society, defendant, the same parties appealed.

The defendant the “American Female Guardian Society,” was incorporated by special act of the legislature in 1849 (chap. 244, Laws of 1849) as the successor of an association known as the “ American Female, Moral Reform, and Guardian Society.” Its object and purpose was declared to be, among other things, to “ establish and maintain houses of industry, and homes for the relief of friendless or unprotected children.” By the charter the board of managers had power to appoint matrons and assistants for conducting the internal concerns of their “house or houses of industry and home for the friendless,” and the children instructed in the schools connected with the “ homes ” aforesaid are declared entitled to share in the common school fund of the city.

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The corporation established and maintains eleven industrial schools in different parts of the city of New York in addition to its other benevolent and meritorious work in feeding, clothing and caring for hundreds of destitute and unprotected women and children. Prior to the year 1857, a building had been erected in East Thirteenth street by the corporation, for the purpose of the organization, in which two of its schools have been maintained, which has been known and called “ Home for the Friendless,” and this name is cut in a marble slab over the door of the building. Other buildings of the corporation are in close proximity to and connected with this principal building in which much of its financial and other business affairs are conducted. In 1857 the original charter of the corporation was amended by the legislature (chap. 249, Laws of 1857), and girls and boys within certain ages found in the streets of the city, destitute and suffering, or abandoned and exposed to neglect, were directed to be committed by magistrates to the care of this corporation, and the policeman charged with the execution of the warrant of the magistrate is required to convey the child named in the commitment to the “ Home for the Friendless,” in Thirteenth street, and the building is in other parts of the act spoken of as the “ Home.” From an early period in the history of the corporation it has acquired and had the name of the “ Home of the Friendless,” or “ Home for the Friendless ” indifferently, and has been so called and known in ordinary parlance, and by its patrons and friends, as well as by its officers and official representatives. The evidence, which was given under objection and exception by the contestants, clearly established this fact, and that there was no other corporation or association in the city of New York bearing the name, although there are several having names somewhat similar. There was no other claimant for the fund in controversy. The circulars of the corporation, giving accounts of its general purposes, objects, and practical operations, have for a caption “ Home for the Friendless, 32 East 30th street,” and the managers refer in detail to the work accom

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plished by the “ Home for the Friendless,” and the letter envelopes used are stamped as well with the full corporate name, as the name “ Home for the Friendless.” It was also in evidence that the testator, a few months before his death, visited the institution and was much interested in it, and frequently referred to his visit and spoke of the manner in which the educational work of the charity was conducted, and always called and spoke of it as the “ Home of the Friendless,” and there was proof that he had it in his mind and called it by the same name on the day of the preparation and execution of his will. The evidence, given by the corporation claimant was uncontradicted, and there was no attempt to controvert it.

H. E. Smith for the appellants.

J. Mullen, Jr., for the respondents.

The bequest to the defendant The American Female Guardian Society, although not made to the society in its corporate name, is valid. (Dayton on Sur. [3d ed.], 415; Banks v. Phelan, 4 Barb., 80 ; Parsons v. Parsons, 1 Ves. Jr., 266; Hornbeck v. Am. Bible Soc., 2 Sandf. Ch., 133 ; Sutton v. Cole, 3 Pick., 232 , 237; Couden v. Clerke, Hob., 32; 10 Coke, 57; Owen, 35; Godb., 17; Foster v. Watter, Cro. Eliz., 106; N. Y. Inst. of Blind v. How, 10 N. Y., 84 ; 1 Jar. on Wills, 330; A. & A. on Corp., 60, §§ 99, 185; Dr. Ayers' Case, 11 Coke, 20 b; Levy v. Levy, 40 Barb., 621 ; Tinker v. Seamen's Aid Soc., 7 Metc., 188 ; 4 J. Ch., 607 ; 4 Paige, 271.) Parol evidence is admissible to identify the legatee named in the will or to apply the description given. (Smith v. Smith, 4 Paige, 272; Thomas v. Stevens, 4 J. Ch., 607 ; Beaumont v. Fell, 2 P. Wms., 140; N. Y. Inst. of Blind v. How, 10 N. Y., 84 ; Sutton v. Cole, 3 Pick., 232 , 237; Banks' Exrs. v. Phelan, 4 Barb., 80 ; Mann v. Mann, 1 J. Ch., 231 , 233 ; Harris v. Bish. of Lincoln, 2 P. Wms., 132; Hampshire v. Pierce, 2 Ves., 216; Urich v. Litchfield, 2 Atk., 372.; Walpole v. Cholmondelly, 7 T. R., 138; Bruce v. Denison, 6 Ves., 397;

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2 Phil, on Ev., 247, 531; Simpson v. Margitson, 11 Q. B., 25; Doe v. Roe, 1 Wend., 542 ; 1 Ves. Jr., 258, 260, 415; 7 T. R, 148; Tole v. Hardy, 6 Cow:, 333; Schuyler v. Russ, 2 Cai., 201 ; R. C. O. Asylum v. Emmons, 3 Bradf., 149 ; Hornbecks Exr., etc., v. Am. B. Soc., 2 Sandf. Ch., 133 ; 2 Phil. on Ev. [4th Am. ed.], chap. 8, § 4, C. & H. Notes, 709, 711; Shore v. Wilson, 9 C. & F., 355; Boorman v. Johnson, 12 Wend., 573 ; Williams v. Crary, 4 id., 443; Hiscocks v. Hiscocks, 5 M. & W., 367; 1 Greenl. on Ev., § 289; Atty. Genl. v. Chapman, 4 DeG., M. & G., 628; Miller v. Gable, 2 Den., 492 ; Fish v. Hubbard, 21 Wend., 651 ; Wigram on Ex. Evs., 58, note b; 1 Roper on Leg., chap. 2, § 18, p. 134; Careless v. Careless, 19 Ves., 601; 1 Jar. on Wills [4th Am. ed.], 330, 360-370; Levy v. Levy, 40 Barb., 620 ; Brewister v. McCull, 15 Conn., 274 ; Minot v. Boston Asylum, etc., 7 Metc., 416 ; Wilson v. Squire, 1 Y. & C., 654.) Declarations of the testator were properly admitted in evidence to identify the legatee and to ascertain the testator’s intent. (Ryerss v. Wheeler, 22 Wend., 153 ; Beach v. Earl of Jersey, 1 B. & A., 550; 3 B. & C., 870; Herbert v. Reid, 16 Ves., 481; Doe v. Roe, 1 Wend., 542 ; Hiscock v. Hiscock, 5 M. & W., 368 ; 1 Greenl. on Ev., §§ 289, 291; 2 C. & H. Notes on Phill. on Ev. [2d ed.], 1363; Vernon v. Henry, 3 Watts, 391 ; Smith v. Fenner, 1 Gal., 170-172; Robinson v. Whitley, 9 Ves., 577; Doe, Allen v. Allen, 12 Ad. & Ell., 451; Doe v. Needs, 2 M. & W., 129 ; Hiscocks v. Hiscocks, 5 id., 368; Reynolds v. Whelan, 16 L. J., 434.) The restriction of section 6, chapter 319, Laws of 1848, as to wills made within two months before decease, does not apply to the Guardian Society. (Pierce v. Delamater, 1 N. Y., 17 ; Potter’s Dwar., 113, note; 154, and note.) The widow is entitled to her share of the residue, not validly disposed of, the same as if there was no will. (3 R. S. [5th ed.], 183, §82; Hoes v.Van Hoesen, 1 Barb. Ch., 379 , 396; 4 Ves., 725, 732; Nickerson v. Bowley, 8 Metc., 424 , 432 ; Hart v. Marks, 4 Bradf., 161 ; 2 Wms. Exrs., 1343; Pickering v. Stamford, 3 Ves., 332-338; Waring v. Ward, 5 id., 676;

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Garthshore v. Chalis, 10 id., 18; Leake v. Robinson, 2 Meriv., 394; 1 Jar. on Wills [4th Am. ed.], 400; 2 Roper Hus. and Wife [2d ed.], 23; Dayt. Sur. [3d ed.], 560; Doughty v. Stillwell, 1 Bradf., 300 , 310; Vernon v. Vernon, 53 N. Y., 362 , 363; Havens v. Sackett, 15 id., 365 ; 2 Story’s Eq., § 1075.)

A stronger case could not well be made for relief against the consequences of a misnomer of an intended beneficiary under a will. Of the intention of the testator to make the claimant the object of his bounty and to contribute of his substance to the charities administered by it, there can be no doubt upon the evidence.

A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator, if, either from the will itself or evidence dehors the will, the object of the testator’s bounty can be ascertained.' Ho principle is better, settled than that parol evidence is admissible to remove latent ambiguities, and when there is no person or corporation in existence precisely answering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. 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. (St. Luke's Home v. Association for Indigent Females, 52 N. Y., 191 ; Holmes v. Mead, id., 332 ; Gardner v. Heyer, 2 Paige, 11; 1 Jar. on Wills, 330; 1 Redf. on Wills, 691, §42, pl. 40; id., 695, pl. 49.) The cases involving these general principles have been so frequent,

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and the discussion in the courts as well as in elementary works so elaborate, that it would be a waste of time to go over the ground or refer to the repeated decisions in detail. Many of the leading cases are referred to by Judge Doolittle in his opinion at Special Term in this case. This case is among the most familiar instances of the application of the rules permitting extrinsic evidence to identify the person or corporation intended by a testator. The evidence was to show that the name used in the will was the popular and usual name by which the claimant was designated and known, that the testator knew and called it by that name, and that there was no other corporation answering the description. This was clearly competent and the evidence was conclusive.

It is claimed and forcibly urged in an able brief by the counsel for the appellants, that this case is not within the rule permitting parol evidence in explanation of latent ambiguities, and that the testator was wholly mistaken in the name of the intended legatee, and that it is not a case of latent ambiguities opening a way for evidence to show who was intended by the testator, or establish the right of a claimant under the will. When the name of an intended beneficiary is wholly omitted and the will is a blank, the omission cannot be supplied by the courts upon any evidence of the intention of the testator. A will cannot be made for a deceased testator by the judgment of a court of law or equity. (Runt v. Sort, 3 Bro. Oh., 311.) So, too, when the name of a beneficiary is inserted, and from the circumstances and relations of the testator, and the whole terms of the will the court might conjecture that an individual not in any respect within the description, but whose name if he was intended by the testator is wholly mistaken, was in truth in the mind of the testator, and intended to be named as the beneficiary, the mistake cannot be corrected, especially when there are those in existence bearing in whole or in part the name, and coming to some extent within the description of the will. (Mostyn v. Mostyn, 5 H. of L. Cas., 155 ; Miller v. Travers, 8 Bing., 244; Delmare v. Robello, 1 Vesey, 412.) The

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will before us is perfect, and the name of the intended beneficiary appears in it, and the only question is as to the application of the name to the claimant; that is, whether the respondent comes within the description or can be identified by the name. As said by the court in Minot v. Curtis ( 7 Mass., 441 ), there is no reason “ why corporations may not be known by several names as well as individuals,” and if so and named in a grant or devise by any one of its recognized names, it cannot be said that the name is wholly mistaken. The ambiguity arises only from the fact that the corporation has and bears two or more names. The corporate or charter name may be entirely mistaken or wholly unknown to the testator, but if he designates it by some other name by which it is known and can be identified, the will must have effect according to the intent of the testator. A mistake in the name is not fatal so long as the testator sufficiently indicates the institution or individual intended. (Ang. & Ames on Corp., § 99.) Lord Brougham, in Mostyn v. Mostyn (supra), approved of the rule deducible from the cases referred to by him, that effect must be given to a will when there was any thing either of legitimate extrinsic evidence or of material evidence tp show that the name must have been put wrongly and also to show who must have been intended. He cites Dent v. Pepys (Madd. & G., 350), in which a devise of the residue of an estate to the “ children of William ” was given to the “ children of Mary,” with the simple remark that whether the conclusion of the vice-chancellor was quite legitimate, it was not necessary to speculate upon.

The opinion of Tindal, O. J., in Miller v. Travers (supra), is greatly relied upon by the counsel for the appellants. The case itself bears but little analogy to that before us, but the reasoning of the chief justice bears strongly in favor of our conclusions in this case. In that case there was a devise of all the testator’s freehold and real estates in the county of Limerick and city of Limerick. The testator had a small estate in the city of Limerick, but no estates in the county of that name, but had estates in

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the county of Claire and in the draft of the will the name of the latter county was inserted, but the scrivener in engrossing the will, by mistake erased “ Claire” and inserted “Limerick,” and the court held that the mistake could not be corrected. But Chief Justice Tindal states the general proposition as it is now recognized and adopted, and says that “ it may be admitted that in all cases in which a difficulty arises in applying the words of a will to the thing which is the subject-matter of the devise or to the person of the devisee,” the difficulty or ambiguity which is introduced by the admission of extrinsic evidence, may be rebutted and removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be devised, or who was the person really intended to take under the will, and this appears to us to be the extent of the maxim “Ambiguitas verborum latens verifications swpfileturP (See, also, 1 Redf. on Wills, 575, chap. 10, § 40, pl. 2.) An ambiguity was proved by evidence that there was and is no corporation in the city of Hew York bearing the charter name used in the will or any unincorporated association under that name, but that there is an institution incorporated under another name but using and being known by the name ,used by the testator, and this opens the way for extrinsic evidence to remove the ambiguity thus raised. The evidence is simply to remove a difficulty arising from an inaccurate or mistaken description. It is not to introduce new words into the will, but merely to give a construction to the words .used in the will, that is, to prove facts which “ stand well with the words ” of the will. (Per Lord Coke, Altham's Case, 8 Coke, 148.) A legacy was given to one in a name which she had for many years assumed, and the court directed an inquiry who was the person meant. (Neathway v. Ham, Tamlyn, 316; 1 Greenl. Ev., § 301, and notes.) We think this a clear case of an imperfect rather than a wholly mistaken description of the corporation intended, and that the evidence was competent to clear up the ambiguity and show what institution was meant, and that the evidence sustains the judgment in that respect.

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It is also objected by the appellants that the corporation claiming had not capacity to take, and that the bequest was void. By its charter (Laws of 1849, chap. 244, § 4), it had power to purchase and hold real estate sufficient for the actual occupation and necessary uses of the society, “ and receive by gift or devise in the same manner and subject to the same restrictions as provided in the general laws for the incorporation of religious and benevolent associations, and to hold and convey such real estate.”

The intent was to confer upon this corporation the same capacity to take by devise or bequest as was, by the general law for the incorporation of “ benevolent, charitable, scientific and missionary societies ” (Laws of 1848, chap. 319), conferred upon corporations constituted under that act, with an added limitation to its capacity to take and hold real property. Corporations, under the general law, had power to take and hold property, real or personal, by devise or bequest, subject to the restriction that the clear annual income of such devise or bequest should not exceed the sum of $10,000. The respondent corporation was incapacitated from taking or holding real estate, the annual income of which should exceed $10,000. It was also subject to the restrictions of the general law, limiting its capacity to take real or personal property, by a single devise or bequest, to that which would yield an income not exceeding $10,000. There is no claim that the limits imposed by these provisions upon the ability of the corporation to take will be exceeded if it should receive and have the benefit of the provision intended for it under the will in question. It is, however, urged,,by the appellants that the bequest is void, by reason of the incapacity of the testator, under the last paragraph of the same section (§ 6) of the general law. It was provided by the last clause of that section that no person leaving a wife or child or parent should devise or bequeath to “ such institution or corporation ” more than one-fourth of his or her estate, and that no such devise or bequest should be valid in any will not made and executed at least two months before the death of the testator. The

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difficulty of the position taken by the appellants is, that the section deals with and provides for two distinct and independent matters. In the one part it limits the capacity of corporations to take by devise or bequest, and in the other it limits and regulates the powers and capacities of individuals in the disposition of their estates by will. Each is independent and has an operation and effect irrespective of the other. The charter of the Female Guardian Society incorporates only the limitations and restrictions of the first clause — that which defines and limits the power of the corporation to take by devise or bequest. The limitation upon the capacity of testators is not by reference or in any way incorporated in the charter, and therefore a repeal or change of the law, as then enacted, cannot be taken into account in passing upon the validity of a dévise or bequest, tested solely by tire legal capacity of the testator.

In 1860, the legislature enacted a general law, entitled “An act relating to wills ” (Laws of 1860, chap. 360), which super-cedes and operates as a repeal of the last clause of section 6 of the general law for the incorporation of benevolent and religious societies. (Laws of 1848, chap. 319, supra.) It enacts that no person leaving a husband, wife, child or parent, shall devise or bequeath to any benevolent, charitable, literary, religious or missionary society, association or corporation, more than one-half part of his or her estate, and that such devise shall be valid to the extent of one-half and no more, and repeals all laws inconsistent with it. That was the law in force at the time of the making of the will before us, and by it the power of disposal by the testator of his property by will was regulated and limited, and the will does not, in the disposition made of the estate, violate the act or exceed the limits prescribed. Less than $20,000 is given, in all, to societies and corporations coming within the description of the statute.

The provision of the act of 1848, as to the timé which must elapse between the making of a will and the death of a testator, in order to give validity to a devise or bequest to a religious or charitable corporation, is not continued by

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the act of 1860, but is omitted, and as the latter act legislates upon the same subject, and covers all the ground occupied by the former law, the omission of this clause is evidence of an intent of the legislature to repeal it, and it must be regarded as repealed. The act of 1860 is a revision and a re-enactment of the provision of the law of 1848 referred to, with such alterations and changes as were deemed expedient. Both laws are general in their character, and the intent is apparent that the latter statute should prescribe the only rule that should govern in the cases provided - for, and, in such case, the former law necessarily yields to the latter, and is superseded by it. (Bartlett v. King, 12 Mass., 537 ; Nichols v. Squire, 5 Pick., 168 ; Daviess v. Fairbairn, 3 How. [U. S.], 636.) The law of 1860 expressly enacts, that a gift by will to the extent of one-half of the estate of the testator, to corporations of the character alluded to, shall be valid, without regard to the time of the making of the will, a provision clearly incompatible with the two-months limitation of the law of 1848, as inconsistent as are the provisions of the two acts in regard to the share and portion of an estate that may be given by will to religious or charitable corporations. (Pi erce v. Delamater, 1 Comst., 17; Potter’s Dwarris on Stat., 154.)

The gift to the corporation respondent is not invalidated because the will was made within two months of the death of the testator.

The testator died intestate as to that part of his estate which was not effectually disposed of by the will. He gave specific amounts and portions of his estates to the persons and corporations named, and the gift of the residue, together with one of the pecuniary legacies, failed to take effect, that of the residue because of its illegality, and the other by reason of indefiniteness in designating the legatee. Intestacy exists as to every thing not disposed of by will, or which turns out not to be disposed of, whether by reason of the invalidity of an attempted disposition or other accident. Had there been a valid disposition of the residue,

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that which became undisposed of by disappointment of the intentions of the will would have fallen into the residue, but as there was no such disposal of the residue, it is undisposed of, and is to be distributed under the statute of distributions. (2 Williams on Ex., 1313, et seq.; 2 R. S., 96, § 75.)

The gift to the wife by the will is not in lieu of dower, or of any other claims upon the estate, and the acceptance by her of the provision for her was not a waiver of her right to share in any part of the estate that should turn out not to be disposed of. She was not put to her election. The statute is decisive as to her right to share in the distribution of that portion of the estate which cannot go according to the terms of the will. (2 E. S., supra.) It enacts that when the deceased left a will, the surplus remaining after the payment of debts and legacies, if not bequeathed, shall be distributed to the widow, children or next of kin, in the manner prescribed, and under subdivision 2 of section 75 {supra), the widow is entitled to one moiety of the surplus not well disposed of by the will. The courts cannot set aside or disregard the statute of distributions, but effect must be given it according to its terms. (Vernon v. Vernon, 53 N. Y., 351 , 362; Pickering v. Stamford, 3 Vesey, 332; S. C., id., 492 ; Hoes v. Van Hoesen, 1 Barb. Ch., 379 .)

The costs of the action were in the discretion of the Supreme Court, and we see no reason to question the propriety of the disposal made in respect to them.

The judgment must be affirmed.

We are forced to differ from some of the conclusions of our learned brother, Allen, J.

We are of the opinion that every society formed under the general act (chap. 319, Laws of 1848), is affected by the proviso in its sixth section. The enactment, and the proviso to it, are to be taken and construed together, and the meaning thus got is the true interpretation. (1 Kent, 463, n. b.)

Thus considered, the section: First, gives the capacity to take any property, by devise or bequest, in any last will, of any

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person / as general as it can be; secondly, it limits the generality of the phrase, “ any property,” by providing that the devise or bequest shall not exceed in clear annual income the sum of $10,000; thirdly, it limits the generality of the phrase, “ any last will,” by saying that it must be that of a person not leaving a wife, child or parent; or if he does leave such, that then the last will must devise or bequeath but one-fourth part of the estate after the payment of debts ; fourthly, it limits the generality of the phrase, “ any person,” by saying that it must be one who has made his will more than two months before his death. Here are three limitations and restrictions, upon the general capacity to take conferred by the section. One is as valid and as operative as the others-; for the right of the corporation to take,’ is the creature of municipal law, just as the right of the person to give, is its creature. And in ancient times no man who had wife or child, could dispose by will of more than half his personal property. The legislature, which has the power to say whether a corporation may take at all by devise or bequest, may say how much, from what person, under what circumstances of testamentary disposition. One restriction limits the quantity that may be taken ; one the quantity that can be given ; one the persons who may give. Yet they all affect the beneficiary, and limit its power of acquiring by devise or bequest. The charter of the respondent, The American Female Guardian Society, speaks in the plural, of restrictions. It refers to and embodies all of these, and is the same as if this section were written into it. Hence it is affected by that proviso.

Hor are we of opinion that the act of 1860 (chap. 360), relieves the respondent:

First. The charter of the respondent is a special act, confined in its operation to that one corporation. It being special, the special grant of franchise and power, it is not inconsistent with, nor repugnant to the act of 1860, which is general and applicable to corporations which get their franchises and powers from a general act. For the first, the legislature has definitely and specially fixed its powers and the

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limits thereof. For the last, it has given them the right to the powers which are held out in general to all who choose to associate under a general law, and those powers are enlarged as the general law enlarges, for as they find the law of their life and its exertion in the general act, when it is changed that law is changed. Hence the charter of the respondent is not repealed nor modified by the act of 1860, either by implication or by the express clause of repeal in the second section. "

Second. And we think that the act of 1860 does not repeal, either by implication or by express terms, that part of the proviso of section 6 which forbids the taking of a devise, in a will made not more than two months before death. The act of 1860 may be read with that section as though a part of it, without any want of harmony with the inhibition of making a will within two months of death. The act of 1860 makes a change in these particulars in the act of 1848. 1st. It provides for the case of a husband surviving, as well as a wife, child or parent. 2d. It provides that a devise or bequest shall not be in trust for, as well as directly to, a society. 3d. It permits and makes valid a devise or bequest of one-half of the estate after payment of debts, instead of one-fourth. It is not inconsistent with, nor repugnant to these provisions, that still there shall be no valid devise or bequest, of more than one-half in such case, unless the will be made more than two months before death. Will it be claimed that the act of 1860 has repealed the limitation upon the capacity of these . corporations to take property, the clear annual income of which is more than $10,000 ? And if that limit may stand ’as not inconsistent nor repugnant, why may not the limit as to the time within which the will shall be made?

The legislature has often given a construction to the act of 1860 -since its passage, by referring in acts to the sixth section of 1848, and recognizing it as continuing in operation. (See Laws of 1862, chap. 146, p. 313, § 3 ; of 1866, chap. 201, p. 392, § 7 [to be read in light of People v. Clute, 50 N. Y., 451 , 455-457] ; 1867, chap. 122, p. 197, § 3.)

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We think that the respondent cannot take the bequest given to it in the will.

In the other conclusions reached by our learned Brother,we concur.

All concur, except Allen, J., dissenting, for reversal of judgment below as to the bequest to the American Female Guardian Society; and judgment modified in other respects to meet such reversal; in accordance with the opinion of Allen, J., as to the rights of other parties.

Judgment accordingly.