
    Longheed v. Dykeman’s Baptist Church & Society et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    •Charities—Power to Take under Will.
    A will containing a devise of land to a religious society by the words, “At the death of my wife, I give and devise, ” etc., provided that the land devised should be used as a parsonage by the society, and that when the society should cease to use it as such it should revert to the testator’s heirs. Meld, that the devise did not vest till the death of testator’s wife, and that the society, having been incorporated during her life, was competent to take under the devise, although not incorporated at the time of testator’s death.
    Appeal from special term, Putnam county.
    Action by Henrietta A. Longheed, one of the heirs at law of Amos C. Dykeman, deceased, for partition of land devised by him to the Dykeman’s Baptist Church & Society, on the ground that said devise was void, the devisee not having been incorporated until after the death of testator. Prom a judgment for defendant, plaintiff appeals.
    Argued before Pratt and Cullen, JJ.
    
      F. S. Barnum, for appellant. Abram J. Miller, for respondent.
   Cullen, J.

We assume the law to be that, if the remainder given to the ■defendant by.the testator’s will vested at the death of the testator, then the ■devise is void, because at such time the defendant was not incorporated; and that the subsequent incorporation of the defendant, during the life of the life-tenant, would not validate the devise. The law was so held in Owens v. Society, 14 N. Y. 380, and Marx v. McGlynn, 88 N. Y. 368, and the rule is recognized in Shipman v. Rollins, 98 N. Y. 311. The question then arises whether the devise vested at the death of the testator or at that of his wife, the life-tenant. The language of the will is: “At the death of my wife I give and devise, ” etc. The natural reading of this language would postpone the devise till the death of the wife; but it must be conceded that the law so favors the immediate vesting of estates that ordinarily, under a long line of decisions, the word “at” would be construed to refer to the time of enjoyment ■of the estate, not of its vesting. We think that this case is taken out of the •ordinary rule by the limitations imposed on the devise. By the will, it is provided that the land devised shall be used as a parsonage by the society and ■church, and that, when the society ceases to use it as a parsonage, it shall revert to the testator’s heirs at law. The devisee could therefore not alien or dispose of it. The testator never contemplated that the devisee should have any advantage of the devise till the death of his wife. The right of property and right of enjoyment were to go together, and, under the will, there could be no right of property apart from the right of enjoyment. If the society had been incorporated at the time of the testator’s death, and subsequently became extinct, the devise would have failed. It was thus necessary that the devisee should survive till the death of the life-tenant to receive the-devise, and thus the devise was necessarily contingent upon the existence of the devisee at the termination of the life-estate. We think, therefore, that we are justified in holding that the devise was not intended to vest till the-death of the wife, and, if that construction be correct, the incorporation and existence of the defendant at that period will, under Shipman v. Rollins, supra, render it a competent devisee. The judgment appealed from should be affirmed, with costs.  