
    Cole v. Frost et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Charities—Validity oe Bequest—Construction or Statute—General Law. '
    The charter of a hospital, granted in 1881, provided that “the said corporation is authorized to take, by purchase, devise, bequest, or otherwise, and may hold, transfer, and convey, for the purposes of said hospital, any real or personal property, so far forth as the same is in accordance with the general laws of this state. ” Laws N. Y. 1818, o. 319, entitled “An act for the incorporation of benevolent, charitable, scientific, and missionary societies, ” provided (section 6) that “any corporation formed under this act” shall he capable of taking real or personal property, inter alla, by devise or bequest, but “no such devise or bequest shall he valid in any will which shall not have been made and executed at least two months before the death of the testator. ” Held, that as the act of 1818 does not apply to corporations previously formed, nor purport to affect corporations organized under other acts passed since 1848, it is not “a general law of the state, ” within the meaning of the above charter, and the hospital is not prevented from taking property under a will executed less than two months from the death of the testator.
    2. Wills—Residuary Bequest—Former Disposition.
    A will, after making certain specific bequests, directed that the entire residue of the estate he distributed among the heirs and next of kin of the testatrix “ as they may be entitled, according to the laws of the state of New York. ” By a codicil, testatrix directed that J., one of the next of kin, should have no share in the distribution, that her share should go to a certain hospital, and'that all the “rest, residue, and remainder” of her estate should go to F., one of the executors. Held, that F. took nothing by this clause.
    Appeal from special term” Kings county.
    This action was brought by William Cole to obtain a construction of the will of Clarissa F. Prince, deceased, of whicli plaintiff and defendant Charles B. Frost are the executors. The other defendants are the heirs and next of kin of the deceased, except the defendant the Methodist Episcopal Hospital, in the city of Brooklyn, which claims a legacy. The will disposed of the entire property of the testatrix, and directed its distribution, after the payment of certain specific legacies, among her “heirs and next of kin as they may be entitled according to the laws of the state of Hew York. ” The codicil, executed four days after the will, directed that Julia C. Farrier, one of the next of kin of the testatrix, should not have any share in such distribution; should receive no part of the estate of the testatrix; and that the share which would otherwise go to her be paid to the defendant the Methodist Episcopal Hospital, in the city of Brooklyn, which was designated in the codicil as the “Seney Hospital.” Ho advantage, however, is sought to be taken of the misnomer; the intent of the testatrix being admitted. The testatrix died within five days after executing the codicil. The codicil, then, by its third paragraph, directs that all the “rest, residue, and remainder” of the estate of the testatrix go to the defendant Frost, ullnder this provision Frost claimed all the estate of the testatrix, after the payment of the legacies, or at least the amounts necessary to provide an income of $500 per annum each for Harriet A. Doty and Haney C. Simmons, when divested of the charge thereon, and the legacy to the Methodist Episcopal Hospital, on the ground that it was void. The court, upon the trial at special term, decided (1) that the whole estate of the testatrix was lawfully disposed of by the said will; (2) that the said will was not, nor was any part thereof, revoked by the said codicil or otherwise, except as to the share or portion of Julia C. Barrier as one of the heirs and next of kin of the testatrix; (3) that the third paragraph of the codicil is inoperative and of no effect; (4) that the legacy to the Methodist Episcopal Hospital is void; (5) that the amount thereof be distributed among the heirs of the testatrix, excepting Julia G. Farrier; (6) that the defendant Erost is not entitled to any part of said estate; (7) that the amount directed to be invested to provide an income for Nancy G. Simmons, who died before the will was admitted to probate, be distributed among the heirs of the testatrix, excepting Julia 0. Farrier; (8)"that the amount directed tp be invested to provide an income for Harriet A. Doty, on her death, be similarly distributed. Defendants Charles E. Frost, Thomas E. Simmons, (one of the heirs at law,) and the Methodist Episcopal Hospital appeal.
    The act of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific, and missionary societies,” (Laws 1848, c. 319,) contains the following provision: .“Sec. 6. 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 whatsoever, 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 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. ”
    Argued before Pratt and Dyksian, JJ.
    
      P. V. R. Stanton, for appellant Frost. G. G. & F. Reynolds, for appellant Methodist Episcopal Hospital. James Troy, for plaintiff, respondent. William Hughes, for respondents Tabor et al.
    
   Pratt, J.

The questions in this case are fully discussed in the opinion rendered at special term, in which we concur, with a single exception, to-wit, that part that holds that the legacy to the Seney Hospital is illegal and void. The hospital charter, which was granted in 1881, contains these words: “The said corporation are authorized to take by purchase, devise, bequest, or otherwise, and may hold, transfer, and convey for the purposes of said hospital, any real and personal property, so far forth as the same is in accordance with the general laws of this state;” and the question, therefore, is whether the restriction contained in section 6, c. 319, Laws 1848, is applicable to this case, or, in other words, whether the said statute of -1848 is a general law of the state. The plaintiff claims that it is a general law, because it applies to the whole state, and to every inhabitant thereof; also to every benevolent, charitable, and missionary society. It does apply to the whole state, but it does not apply to corporations created previously to the passing of that statute; neither does it affect corporations organized under other acts passed since 1848, except so far as the restriction lias been made applicable in the respective charters. It must now be regarded as settled law that all corporations not subjected in terms to the restrictions of that act may take under wills as if no such act existed. I cannot find that the precise language used in this will has been finally adjudicated in reference to the application of the restriction contained in the act of 1848. In the case of Stephenson v. Short, 92 N. Y. 433, it was held that a charter containing the words, “subject to the provisions of law relating to bequests and devises to religious societies, ” was within the restriction, but it will be observed that this is a widely different expression from the one contained in defendant’s charter, “subject to the general laws of the state, ” etc. The act of 1848 is a “provision of law relating to bequests and devises,” but it does not follow that it is a general law, and it is only to general law, and not to all provisions of law, that the defendant is subjected. The case of Kerr v. Dougherty, 79 N. Y. 352, was similar in principle; the words of the charter being “to take subject to existing laws,” and, as amended, “to take and hold by gift, grant, or devise, or otherwise, subject to all provisions of law relating to devises and bequests by last will and testament. ” This case was held to come under the restriction. The legislature never intended the restriction in the law of 1848 to be a general law; if it had, language would have been used to effectuate such a purpose. The restriction was only t<*such corporations as were organized under that act. Had the language been that no religious or benevolent corporation in this state shall hereafter take, etc., under a will made within two months prior to-d'eath of the testator, the intent would have been plain. An instance of such intent to make a general law is manifested in the act of 1860, (chapter 360,) and it is to such general laws that the language of defendant’s charter has reference. The prohibition in the defendant’s charter (as the plaintiff terms it) has no special reference to wills, but has regard to the general powers and restrictions concerning the taking, holding, and management of property by all corporations. There are many general laws of the state relating to corporations, and the management of their affairs and property, and many laws relating to wills, and it was to these laws that defendant’s charter was made subject, and only these. The act of 1848 being specific, and relating onjy to-corporations organized under it, the restriction does not apply to defendant’s charter. The act of 1848 should not be strained to cover cases that do not fairly fall under its terms. When the legislature intends to make a special charter subject to the two months-1 imitation contained in the act of 1848, it is fair to presume that it will use appropriate language to accomplish that result, When it fails to do so, it is not within the province of the courts to extend such limitation over it. It seems to us that in no sense is the law of 1848 a general law, except that it furnishes a general scheme for the promotion of benevolent and religious corporations, and upon all such as are formed under it the restriction applies, and to none others. The case of Hollis v. Seminary, 95 N. Y. 166, in its reasoning seems to point to this result, and we think it decisive of this point. The judgment of the special term must therefore be modified, so far as it declares the bequest to the Seney Hospital of no effect, by holding that the same is valid, and after such modification the judgment affirmed, with costs to be paid out of the estate.  