
    
      In re Kavanagh’s Will.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Charities—Validity of Bequest—Construction of Statute.
    Laws R. Y. 1866, c. 201,—an act to incorporate the “Sisters of the Poor of St. Francis, ’’—subjects the corporation (section 7) to the provisions of Rev. St. R. Y. pt. 1, c. 18, tit. 7, relating to devises and bequests. Said chapter 18, when passed, had only four titles, but Laws N. Y. 1848, c. 319, which made void (section 6) devises and bequests to charitable institutions made within two months of the testator’s death, was published in 1859, in a compilation of the general statutes known and cited as the Revised Statutes, as chapter 18, tit. 7, thereof. Held, that the corporation was subject to the restrictions of the act of 1848.
    Appeal from surrogate’s court, Hew York county.
    
      This is. an appeal by the Sisters of the Poor of St. Francis, a charitable corporation, from a decree in the matter of the -probate of the will of Benjamin A. Kavanagh, deceased. The decree declares void a legacy to said corporation.
    Argued before Van Bbunt, P. J., and Beady and Daniels, JJ.
    
      George Bliss, for appellant. George W. Carr and Daniel P. Hays, for respondents.
   Daniels, J.

The testator made and executed his will on the 18th of August, 1887, and died on the 29th of the following month. He left him surviving his mother, Margaret Kavanagh, of Liscarroll, Cork, Ireland. By the fifteenth paragraph of his will, after directing the payment of various legacies to his relatives, including his mother, and to other parties, he gave, devised, and bequeathed two-thirds of all the rest, residue, and remainder of his property to the Little Sisters of the Poor in the city of Hew York, directing them to divide it equally between the houses in Seventieth and One Hundred and Sixth streets in said city. These sisters were incorporatedDunder and by virtue of chapter 201 of the Laws of 1866. By section 7 of this act the corporation was made subject to the provisions of title 7, pt. 1, c. 18, Rev. St., in relation to devises and bequests by will; but as the Revised Statutes were enacted by the legislature they contained no title 7, c. 18, pt. 1. Chapter 18 of part 1, as it was enacted, included no more than four titles. But .after the enactment of the Revised Statutes compilations were made of the statutes, and published as the Revised Statutes of the state. The second and.third of these were under the sanction of the revisers themselves, and published, with the additions and changes made in the general laws by the legislature, in January, 1836, and 1846. After that, compilations of the General Statutes, including so much of the Revised Statutes as remained unchanged, were also published as the Revised Statutes of the state. As these additions have in this manner been published, they have been mentioned, cited, and referred to as the Revised Statutes of the state. In these compilations additional titles have been made of general laws enacted by the legislature of the state, and in this manner chapter 319 of the Laws of 1848, and the acts amending it, providing for the incorporation of benevolent, charitable, scientific, and missionary societies, were added as title 7, c. 18, pt. 1, of the Revised Statutes. In this manner this act, with its amendments, was incorporated in the compilation of 1859, which preceded the enactment of the statute incorporating the appellant. From the language employed in section 7 of the act incorporating, the appellant the intention of the legislature is clearly evinced to refer to the preceding law relating to devises or bequests by will. This act of 1848, with its amendments, was such a law, and as it was contained at the time of the enactment of chapter 201 of the Laws of 1866, in the compilations published as the fifth edition of the Revised Statutes of the state, and was denominated title 7, c. 18, of the first part of those statutes, it is to be presumed that this was the act in this manner referred to, and to which the appellants were intended to be brought into subjection. This statute, in this manner incorporated and published in this compilation called the “Revised Statutes, ” has by its sixth section declared that “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 and 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. ” There was no other provision of the law so far answering the description contained in section 7, c. 201, Laws 1866, as to be brought within the language or reference contained in this section of the act. And as the compilation-then existing and used was called and referred to as the “Revised Statutes,” and the Laws of 1848, with its amendments, was contained therein as title 7, c. 18, pt. 1, the inference is irresistible that this section 6 is what the legislature intended that the appellant should be subjected to by the reference contained in section 7 of the act of 1866; and that 'rendered this bequest contained in the fifteenth paragraph of the testator’s will invalid, as the will was executed less than two months before the time of his decease. The surrogate was right in the construction of the law adopted by him, and which resulted in .the decree excluding this fifteenth paragraph from the will, and holding it to be inoperative and unlawful. The decree should be affirmed, but, under the circumstances, it should be without costs. All concur.  