
    John Brusnahan, Resp’t, v. Manhattan College, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889.)
    
    1. Will—Devise to corporations—Laws 1853, chap. 184, § 10—Va-lidity of DEVISE.
    A corporation incorporated under chapter 184, Laws of 1853, can take a devise upon a will executed less than two months before the death of the testator.
    2. Same—Revised Statutes—When first edition referred to.
    Where, in the Laws of New York, a reference is made to the Revised Statutes, under otherwise expressed, the first edition is referred to.
    Appeal from order overruling demurrer to the complaint.
    
      C. E. Miller, for app’lt; John Townsend, for resp’t.
   Van Brunt, P. J.

One Joseph M. Linehan made his will on the 9th day of May, 1886, and died on the first day of July, 1886, unmarried, and without issue. By his will, after making various bequests, he gave to Manhattan College §5,000.

The Manhattan College was incorporated in April, 1863, by charter from the regents of the university of New York, under and by virtue of chapter 184 of the Laws of 1853, and the Revised Statutes.

It is claimed that the devise to Manhattan College was void upon the ground that the will was not executed at least two months before the death of the testator.

By section 10 of chapter 184 of the Laws of 1853, it was provided that every institution incorporated under this act shall have and possess all the powers and privileges, and be subject to the provisions, liabilities and restrictions of the 18th chapter of part 1 of the Revised statutes, so far as the same are applicable, and have not been repealed.

It is because of this provision that it is claimed that the devise to Manhattan College was void, in that the sixth section of chapter 319 of the Laws of 1848, rendered unlawful' devises under a will made and executed at least two months before the death of the testator.

At the time of the passage of the act of 1853, there was a compilation of statute law known as the fourth edition of the Revised Statutes, published by private publishers. This edition had state official recognition by certificate of the secretary of state, and had the legislative permission to its publication, so far as it refers to the Revised Statutes, and by like authority may be read in evidence. And in the eighteenth chapter of part one of- this edition of the Revised Statutes is found incorporated the provisions of the act of 1848, referred to. This provision is not found in the Revised Statutes themselves. There is an eighteenth chapter of part one of the Revised Statutes, to which the descriptive words of the act under consideration would apply. Its subject-matter relates to powers, privileges and liabilities' of corporations, as well as other matters relating to corporations; but it does not contain, as already said, the prohibition by means of which it is sóught to invalidate the bequest to the appellant.

Under these circumstances it is impossible for us to say that the legislature did not intend to refer to the eighteenth chapter of part one of the Revised Statutes; and there is nothing to indicate that they intended to refer to the fourth edition which contained these prohibitive words.

In the case of the People ex rel. Furman v. Clute, 50 N. Y., 451, it was held that in an act which enacted that a certain section of part one of the Revised Statutes, fourth edition, should be amended, reference was undoubtedly intended to be made to the edition of the Revised Statutes published as above amended. But in that case, the court held that if the words “fourth edition” had not appeared, they could not have said that the legislature did not intend to refer to the Revised Statutes themselves.

Applying the rule of construction which seems to be laid 'down in the case cited, we see no reason for holding that the fourth edition of the Revised Statutes was intended by the legislature when it was not mentioned....

We think, therefore, that the restriction did not exist, prohibiting the appellant, the Manhattan College, from taking the legacy in question.

The judgment appealed from must be reversed, and the demurrer sustained with costs.

Brady and Bartlett, JJ., concur.  