
    WESLEY MEMORIAL HOSPITAL v. THOMSON, executor, et al.
    
    If a testator leave a wife or child or descendant of child, and the will be executed less than ninety days before the testator’s death, a devise therein to a charitable use is void.
    Wills, 40 Cyc. p. 1053, n. 85; p. 1054, n. 86; p. 1055, n. 90; p. 1056, n. 91, 92.
    No. 5546.
    July 14, 1927.
    Construction of will. Before Judge E. D. Thomas. Pulton superior court. June 12, 1926. .
    
      Underwood & Haas, for plaintiff in error.
    Candler, Thomson & Eirsch and C. P. Goree, contra.
   Beck, P. J.

The will of J. N. Renfroe, which was executed on the 29th day of August, 1923, contained the following: “I give to the Wesley Memorial Hospital of Atlanta, Ga., the sum of $10,000.00 to be perpetually held and invested by the proper legal board of trustees controlling said hospital, separate and apart from other funds of said institution, and to be known as the Sarah E. Renfroe endowment fund, in memory of my mother, the income of said fund to be used in caring for patients in said hospital who are not able to pay for their care.” The testator died on the 26th day of November, 1923, that is, within less than ninety days after the will was executed; and the question is, whether the bequest contained in the item quoted is void under the provisions. of section 3851 of the Civil Code, relating to charitable devises. The court below held that it was void, and to this judgment the plaintiff in error excepted. We hold that the ruling of the court was a correct application of the provisions of the section, of the Code cited to the facts of this case. When a testator leaves a wife or child, or a descendant of a child, he can not devise more than one third of his estate to charitable uses; and in all cases of that description, whether he attempts to devise as much as one third of his estate to charitable uses, or a less portion of his estate for that purpose, the will containing such devise must be executed at least ninety days before the Heath of the testator, or such devise will be void, and the wife, or child, or descendants of such child, as the case may be, will inherit his estate. Reynolds v. Bristow, 37 Ga. 283, 288. See also Sinnott v. Moore, 113 Ga. 908, 915 (39 S. E. 415); Jones v. Habersham, 107 U. S. 174 (2 Sup. Ct. 336, 27 L. ed. 401). Judgment affirmed.

All the Justices concur. -  