Porter v. Carolin — 19 N.Y. St. Rep. 707

Majority

p. 707

Margaret Porter v. Michael Carolin, Ex’r., etc.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Corporations—Formed under Laws of 1848, chap. 319, § 6—Cannot TAKE DEVISE UNDER A WILL NOT EXECUTED TWO MONTHS, OR MORE, PREVIOUS TO THE DEATH OP THE TESTATOR.

It is provided by Laws of 1848, chapter 319, § 6, entitled “ An act for the incorporation of benevolent, charitable, scientific and missionary

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societies,” that any corporation formed under that act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or beques-t contained in any last -will of any person whatsoever within stated limits, provided, however, that no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator. Eeld, that corporations formed under the act above quoted were incapable of taking bequests otherwise valid created by a will which was not executed at least two months before the death of the testatrix.

2; Same—Whebe no bestbaint ob limitation is imposed by statute,. THEY ABE UNLIMITED IN CAPACITY TO TAKE BY WILL.

Eeld, that the limita! ion regarding the time within which the will must have been made, did not affect the capacity of a corporation of kindred nature made a legatee under the will, formed under an act which contained no such limitation, and not by law made subject to a similar-limitation.

8. Same—Wills—Tbusts cheated by—When void.

Eeld, that a residuary clause in a will giving the rest, residue and remainder of the estate to the executors, in trust, to expend- the same for masses for the repose of the soul of the testatrix, and.her husband was-invalid.

Case agreed upon and submitted for decision under section 1279 of the Code of Civil Procedure.

Edward D. McCarty, for pit’if; David McClure, for def’t.

This case presents for decision the legal disposition which should be made of certain clauses contained in the will of Ellen Bonner, deceased. She mad© her will on the 2d day of March 1886 and died on the 1st day of April, following. By this will she bequeathed to th© Home of the Aged of the Little Sisters of the Poor of th© city of New York the sum of $500, to the Mission of th© Immaculate Virgin, located at Layfayette Place and Great Jones Street in the city of New York. $2,000, to St. Joseph’s-Home for Aged and Destitute Women, located on West Fifteenth street, the sum of $500.

Each of these legatees was formed and incorporated under chapter 319 of the Laws of 1848, and the actsamendatory thereof. And by section 6 of the act of 1848, even as that has been amended by chapter 360 of the Laws-of 1860, they were'incapable, of taking these bequests because of the fact that the will was not executed at least two months before the death of the testatrix.

Upon this subject no substantial disagreement has been presented by the arguments in the case.

By the sixth paragraph of the will the testatrix bequeathed to the Roman Catholic Orphan Asylums in the city of New York.the sum of $500. This legatee was created and incorporated by chapter 250 of the Laws of 1852, and neither in its creation nor at any time since then has its powers or authority been subordinated to the act of 1848, or either of

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the laws amending that act. The only general law to which it has been, subjected, is. that contained in. title. 3, of chapter 18 of the first part of the Revised Statutes, and that title has no such restriction as this in the act of 1848. And this restriction being inapplicable to it, the legatee is entitled to take this legacy,, notwithstanding this general provision of the act of 1848.

The effect of that, act under circumstances entirely analogous, was considered, in Hollis v. Drew, etc., Seminary, 95 N. Y., 166 , where-it was held that corporations created by the laws of other states were not affected by the restriction or limitation^ for the; reason that they were not- under- the act of 1848.

And as this corporation was not formed under, or subject to that act, this decision is a direct authority in favor of its right to take and receive this legacy. The same rule was applied and followed in Harris v. American, ete., Missionary Society, 33 Hun, 411 . And these decisions are not in conflict with anything contained in Lefevre v. Lefevre, 59 N. Y., 435 . In that case a legatee, whose, legacy was. in controversy was incorporated under chapter 244 of the Laws of 1849, which by its fourth section subordinated the powers of the society to receive property by gift or devise to the restrictions provided in the general law for the incorporation of religious and benevolent associations. And it was on that account only that it was held to be within the act of 1848, and incapable of taking the legacy intended to be given to it. That decision accordingly has no application to this case, but it is governed. by the other authorities. And not being subject to the act of 1848, the legatee is entitled to this sum of $500.

The residuary clause in the will giving the rest, residue and remainder of the estate to the executors in trust to expend the same for masses for the repose of the souls of the testatrix and her husband, is not now presented as a legal direction. Whatever doubt might otherwise exist concerning it, has been removed by the case of Holland v. Alcock, 108 N. Y., 312 ; 14 N. Y. State Rep., 761. It is there held that such a direction cannot be carried into effect, and for that reason it is conceded by the counsel that this clause of the will is not to be maintained. Judgment should, therefore, be directed in the case adjudging the fourth, fifth, seventh and fourteenth paragraphs of the will to be unlawful, and sustaining the legacy given to the Roman Catholic OrEhan, Asylum in the city of Yew York, for the sum of $500 y the sixth clause of the will.

Van Brunt, Ch. J., and Brady, J., concur;