In re the Probate of the last Will & Testament of Kavanagh

Majority

p. 406

In the Matter of the Probate of the last Will and Testament of Benjamin A. Kavanagh, Deceased.^[1]

(Court of Appeals,

Filed January 27, 1891.)

Headnote

Will — Charitable bequests — Laws 1866, chapter 201 — Laws 1848, chapter 319, § 6.

A testator , by his will, made within two months before his death, after making several bequests, gave one-third of the residue to the St. Francis Hospital, then in charge of the Little Sisters of the Poor. JBeld, that the reference to the Revised Statutes in chapter 201, Laws of 1866, under which the Sisters of the Poor are incorporated, was to the edition of the Revised Statutes then in use; that in that edition § 6 of chapter 319, Laws 1848, was embodied in title 7, chapter 18 of the Revised Statutes, and by the reference thereto was made applicable to such corporation, and that under it the devise was invalid.

Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate rejecting a portion of the will of testator. '

George Bliss, for appellant; Daniel P. Hays, for resp’t

Benjamin A. Kavanagh died in the city of New York on the 29th day of September, 1887, having in the previous month made a will, the sixteenth clause of which is as follows:

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il I give, devise and bequeath the remaining one-third of such residue and remainder unto St. Francis Hospital of the city of Hew York, situated in Fifth street, in said city, and now under the charge of the Sisters of the Poor of St. Francis, and in case such hospital be not incorporated, then I make such bequest to the Society or Order of Huns having such hospital under their charge and care, for the use of such hospital.”

The hospital was not incorporated, but it was in charge of the Sisters of the Poor of - St. Francis, and they were incorporated by chapter 201 of the Laws of 1866 the seventh section of which is as follows:. “ The said corporation shall possess the general powers and be subject to the general restrictions prescribed in the third title of the eighteenth chapter of the Revised Statutes, and also subject to the provisions of title 7, part 1, of chapter 18 of the Revised Statutes, in relation to devises or bequests by will.”

The respondents claim that this corporation can take nothing under the will, because it was. executed less than two months previous to the death of the testator, and so the surrogate and the general term have held.

It is not questioned that these decisions are correct if § 6 of chap. 319 of the Laws of 1848, is applicable to this corporation.

The Law of 1848 is a general law for the incorporation' of “ benevolent, charitable, scientific and missionary societies,” and § 6 provided that any corporation formed under the act shall be capable of taking property by devise or bequest, but 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. ” That provision, therefore, as contained in that act is applicable only to corporations formed under that act, and there is no general law making it applicable or making a similar provision applicable to all corporations.

This corporation was specially created by the act of 1866, and it is claimed that the provisions of § 6 of the act of 1848 are made applicable to it by the language of § 7 of the act of 1866 which makes it “ subject to the provisions of title seven, part first, of chapter eighteen of the Revised Statutes, in relation to devises or bequests by will.” On an examination of the Revised Statutes proper, it is found that chapter 18 contains only four titles, and they have no provision whatever in relation to devises or bequests by will, and' there is nothing in the Revised Statutes whatever which condemns this gift to this corporation. But there have been several editions of the Revised Statutes published by individuals and all of these editions have been in general use. They have been cited in the courts by lawyers and judges as the Revised Statutes, and they have been recognized as such by the legislature in appropriations made for their purchase for its library and the use of its committees. They are commonly called by that name, and the early and official edition has, to a very large extent, been superseded by these later unofficial editions. The fifth edition of the Revised Statutes was published in 1859, and chapter 18 of that edition contains 27 titles, and title 7 embodies chapter 319 of the Laws of 1848,

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with the amendments thereto, and, of course, includes § 6 of that, act. On the hearing before the surrogate that section was read! from the Revised Statutes and his attention was thus called to it.

We may take judicial notice that that edition of the Revised Statutes was in common use in 1866, when the special act creating this corporation was passed. Unless the legislature in §' 7 of' that act referred to this edition of the Revised Statutes, by the language it used, then the language has no meaning whatever. We think it is plain that the reference in the act of 1866 was to the Revised Statutes then in use, and that § 6 of the act of 1848, embodied in title 7 of chap. 18 of the Revised Statutes, was made applicable to this corporation. Having thus ascertained the legislative intention, we must give it effect, and for our -conclusion the case of People v. Cluie, 50 R Y., 451, is sufficient authority.

The judgment should be affirmed, but without costs.

All concur.