In re Connor — 9 N.Y. St. Rep. 288

Majority

p. 288

In the Matter of Denton F. Connor.

(Supreme Court, General Term, First Department,

Filed May 13, 1887.)

Headnote

Devises, to cobpobations—Chap. 641, Laws 1881; chap. 819, Laws 1848.

There was no intention on the part of the legislature by the act of 1881, to interfere with section 6, chapter 319, Laws 1848. The provisions of the act of 1881 do not repeal section 6, they simply amend section 2 of the act of 1848. The reference to the act of 1860 in the act of 1881 was simply a declaration that the act of 1860 applied to corporations’ formed under the act of 1848, and that the act of 1881, increasing the corporations power to take and hold, should not be deemed in any way to have repealed the act of 1860.

Appeal from a decree of the surrogate of the county of New York.

Denton F. Connor, on the 18th of January, 1886, made a will, and died on the 23d of January following: On the 23d ■of July, 1886, the said will was admitted to probate _ by the surrogate of the county of New York. By the said will,

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the said Denton F. Connor bequeathed to his executor all his estate, real and personal, in trust to take possession of all said real estate, and sell and dispose of the same, and out of the proceeds to pay all just debts and funeral expenses, and to pay all the rest, residue and remainder thereof to the Home for Incurables, a corporation created in the year 1866, under chapter 319 of the Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies.” Some question having arisen as to the validity of this bequest, a con.struction of the will by the surrogate was asked for, and it was adjudicated by him that under said will the real estate of the testator was converted into personalty, and the gift to the Home for Incurables was void, the will not having been made two months before the testator’s death, required by section 6, of chapter 319 of Laws of 1848, and that the next of kin of the testator were entitled to the personal property left by him, after paying all debts and expenses, and the real estate left by him, or the proceeds thereof, •should go and belong to the person or persons who would have been entitled to such property if the conversion thereof had not been directed by said will. From this adjudication this appeal is taken by the Home for Incurables.

James S. Steams, for the Home for Incurables, App’lts; W. H. Hamilton, guardian ad litem for certain infants, next of kin, and O. W. Pleasants, for certain other next of kin, resp’ts.

That by the will the real estate was to be deemed converted into personal estate at the death of the testator, does not seem to admit of argument. The direction is explicit to the executors to convert into personal property, and the bequest to the Home for Incurables is of personal property, and as such the Home for Incurables must take it, and as such can only claim it. The conversion took place at the death of the testator, irrespective of any action on the part of the executors.

As has been said, the corporation, the House for Incurables, was incorporated under chapter 319 of the Laws of 1848. In 1878, by chapter 37, the Home for Incurables was authorized to take and hold real estate to the amount of $250,000. By chapter 641 of the Laws of 1881 it is provided that “All corporations already formed, or which hereafter may be formed, under and in pursuance of chapter 319 of the Laws of 1848, and the several acts amendatory thereof * * * shall, in law, be capable of taking, receiving, purchasing and holding real estate, for the purpose -of their corporation, to an amount not exceeding the sum

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of $200,000 dollars in value, and personal estate, for like-purposes, to an amount not exceeding the sum of $200,000 in value; but the clear annual income of such real and personal estate shall not exceed the sum of $50,000, subject, however, to the restrictions upon devises and bequests contained in an act, entitled ‘An act relating to wills, passed April 13, I860.’ ”

It is claimed upon the part of the appellants that this law of 1881 repealed all restrictions upon devises to charitable corporations theretofore existing, except those contained in the act of 1860; and, in the discussion of this question it seems to have been assumed by the counsel for both parties that this law of 1881 in some manner superseded or was amendatory of section 6 of chapter 319 of the Laws of 1848. An examination of that chapter and of the Law of 1881 will show that the Law of 1881 was not intended to be an amendment, of and that it had no relation to section 6 of chapter 319 of the Laws of 1848. The section reads as follows:

“ Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person' whomsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000; provided, no person leaving a wife or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no sudi 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.”

It is to be observed that the limitations in this section as to the corporation receiving and holding property depend upon the manner in which the title is to be acquired. The provision is that the corporation shall not by virtue of any devise or bequest contained in any will be capable of taking any property where the clear annual income of the devise or bequest shall exceed the sum of $10,000. There is no limitation here upon the corporation taking property to any extent by gift. The only limitation is upon receiving or taking property by devise or bequest, and has no relation to the power of the corporation to take and receive, purchase and hold real estate for the purposes of its incorporation received otherwise than by devise or bequest. Therefore, if there was nothing else in the act of 1848, it would not appear that the provisions of the act of 1881 have any relation whatever to those of the act of 1848. But when, we come to see the provisions of section 2 of the latter act,.

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it is very apparent that the act of 1881 has relation to the provisions of section 2 of the act of 1848, and to no other part of that act. Section 2 provides that “upon filing the certificate provided in section 1, the persons who shall sign and acknowledge such certificate, and their associates and successors shall thereupon, by virtue of this act, be a body politic and corporate by the name stated in such certificate, and by that name they and their successors shall and may have succession, and shall be persons in law capable of suing and being sued * * and they and their successors by their corporate name ” (and here follows language exactly similar to that contained in the act of 1881, with the exception of the amounts being different) “shall in law be capable of taking, receiving, purchasing and holding real estate for the purposes of their corporation and for any other purposes” (the words “and for any other purposes” being left out of the act of 1881) “ to an amount not exceeding the sum of $50,000,” ($200,000 being in the act of 1881) “ in value, but the clear annual income of such real and personal estate shall not exceed the sum of $10,000” ($50,000 being the amount named in the act of 1881). It is quite apparent, therefore, that the act of 1881 in no manner attempted to interfere with or amend section-6 of the act of 1848. It was simply an enlargement of the powers of the corporation as limited by section 2 of the act of 1848, and nothing more. As has already been stated, section 6 related to the power of the corporation to take by devise. Section 2 related to the power of the corporation to hold property, no matter how acquired, and the laws of 1881 related precisely to the same subject.

It is now necessary to consider whether the addition of the words in the act of 1881, “subject however to the restrictions upon devises and bequests contained in the act entitled an act relating to wills, passed April 13, 1860,” has made any change in the law as it existed at the time of the passage of the act of 1881. It has been held that by the passage of the act relating to wills, passed April 13, 1860, the legislature increased the limit of charitable bequests from one-quarter to one-half, where the testator left a husband, wife, child or parent, but that the restriction contained in the last part of section 6, that no devise to a charitable corporation shall be valid in any will which shall not have been made and executed at least two months before the death of the testator, was not affected by the act of 1860. In construing legislative enactments, the intention of the legislature must govern, and repeals by implication are not to be favored. It is not necessary to cite authorities to sustain this proposition. And unless the provisions of the act of 1881 are inconsistent with the pro

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visions of section 6 of the act of 1848, as there is a plain intention on the part of the legislature to repeal the provisions of the act of 1848, such provisions still exist and are binding. The main argument upon the part of the appellant seems to have been based upon the fact that there was a declared intention upon the part of the legislature by the act of 1881 to alter, charge, amend or repeal section 6 of the act of 1848; and the whole strength of his argument depends upon the existence of this fact. It has been seen by a comparison of the act of 1881 and the act of 1848 that there was no intention on the part of the legislature by the act of 1881 to interfere with that part of section 6 which it is argued was affected by the provisions of the act of 1881. The provisions of the act of 1881 no more repeal section 6 of the act of 1848 than does section 2 of that act; and as the provisions of the act of 1881 have been shown to be simply an amendment of section 2 of the act of 1848, there is no greater inconsistency between the existence of these sections as amended than existed when they were originally enacted. There would seem therefore to have been no intention upon the part of the legislature by the act of 1881 to interfere with the provisions of section 6 of the act of 1848.

It is true that the act of 1860 enlarged some of the provisions of section 6 of the act of 1848, but the balance of the section remained in full force and effect, including the two months’ limitation. Lefevre v. Lefevre, 59 N. Y., 434 ; Stephenson v. Short, 92 id., 433.

The reference to the act of 1860 in the act of 1881, was simply a declaration that the act of 1860 applied to corporations formed under the act of 1848, and that the act of 1881 increasing the corporations power to take and hold should not be deemed in any way to have repealed the act of 1860, limiting in certain cases the amount of devises or bequests and it does not seem to have been inserted for any other purposes.

As the act of 1881 does not repeal the provisions of the said section 6 by direct enactment, it is difficult to see how a repeal by implication is to be sustained, when such repeal runs counter to the whole policy of the law in reference to devises to corporations and said section 6 is in no way inconsistent with any of the provisions of the act of 1881 does not seem necessary to discuss this question further, as the whole foundation of the argument of the repeal by implication seems to rest upon the assumption that the law of 1881 showed an intent on the part of the legislature to change the provisions of section 6 in some respects at least, whereas it has been shown that it had no application whatever to that section, but was intended to amend section 2.

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Adopting this view full effect is given to all the legislative enactments, and an intent to legislate upon a subject which is not at all germain to the matters legislated upon by the act of 1881, is not extorted from a very simple provision amending section 2 of the act of 1848.

The decree of the learned surrogate must therefore be affirmed, with costs.

Daniels and Brady, JJ., concur.