
    William Cole, Executor, etc., Resp’t, v. Charles E. Frost et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Wills—Devise—When besiduaby clause void.
    A testatrix, by her will, after giving certain specific legacies, directed that the balance of her property should be distributed amongst her “heirs and next of kin as, they may be entitled, according to the laws of the state of New York,” By a codicil she directed that one of the next of kin should have no share in the distribution, but her share should go to “ The Seney Hospital,” and that “all the rest, residue and remainder of my estate I give, devise and bequeath to Charles E. Frost * * * and to his heirs, executors, administrators and assigns.” Meld, that the residuary clause operates upon nothing, the entire estate was given away and there was no revocation in favor of Frost.
    2. Same—Construction—Laws 1848, chap. 819, § 6.
    The hospital charter, which was granted in 1881, provided “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 of 1848, chapter 319, for the incorporation of benevolent, scientific and missionary societies-provides (section 6) that any corporation formed under this act shall be-capable of taking real or personal property by devise or bequest, but'" 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 ” The present will was made within the two months’ limitation.. Reid, that the act of 1818 does not affect corporations created under other actsy except so far as the restriction therein contained has been made applicable in their $espective charters; that it is in no sense 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 does the restriction apply, and to none others; that the charter of the hospital is not subject to the two months’ limitation, and it is not prevented thereby from taking: the property devised.
    Appeal from a judgment entered on a decision made at special term.
    This action was brought to obtain a construction of the-will and codicil of Clarissa F. Prince, deceased.
    The following is the opinion of the special term:
    Barnard, J.—By the original will the testatrix intended clearly to dispose of all her property; she gave certain specific legacies, and then provided for investments to pay to-annuitants, and then to pay “ the balance remaining to my heirs and next of kin as they may be entitled according to-the laws of the state of New York,”
    If there had‘been no codicil, the “ remainder,” after the* annuities fell in, would have included the amounts invested to raise the annuities. The codicil was drawn to affect the-interest of one only of these heirs and next of kin.
    “ I hereby except from any distributive share of my estate, Julia C. Farrier, who is to receive no part or portion of my estate, and the share or portion which would have gone to her by my said annexed will, I give and bequeath to the Seney Hospital of the city of Brooklyn.”
    With this clause the whole estate is still disposed of except for another clause in codicil, which is as follows:
    All the rest, residue and remainder of my estate, I give,.' devise and bequeath to Charles E. Frost, of the city of' Brooklyn, and to his heirs, executors, administrators and assigns.
    Beading this will and codicil tgether, it is manifest that - the heirs and next of kin, with the single exception, are to keep their places in the will; no other change is provided.
    The residuary clause in the codical operates upon nothing. The entire estate was given away, and there was no revocation in favor of Mr. Frost. If the will itself was sufficient to convey the entire estate to the heirs, the codicil does not. take away their right to the property under the will except so far as respects the gift to Seney Hospital. If that is void,, the share will go to the next of kin and heirs, and not to Frost, because the general clause in the will remains and will absorb an abortive legacy.
    Is the legacy to the hospital good ?• The will was made within the period of two months before the death of testatrix. The Seney Hospital was not incorporated under the act of 1848, but by chapter 404, Laws 1881. This act contains an authority as to the hospitals taking property that it should be “so far as the same is in accordance with the .general laws of this state and not otherwise.”
    The words of testatrix are not so clear as those in Kerr v. Dougherty (19 N. Y., 821), nor as definite as those in Stephenson v. Short (92 N. Y., 433), but I think are sufficiently specific to subject the bequest to the act, chapter 319, Laws of 1848. That law is general, in that it applies to all bequests, to corporations organized under that act, and the act itself is general, inasmuch as it authorized all sorts of benevolent corporations to be organized under it. It cannot be' supposed that when a corporation was directly created by the legislature and subjected to the general law of the state, an exception in respect to this two months’ clause in the law of 1848 is to be without any meaning. The conclusion therefore is that the heirs at law and next of kin took the entire estate, excluding from among the heirs the one who was disinherited by the codicil.
    Costs to all parties out of the estate.
    
      James Troy, for pl’ff and resp’t; P. V. R. Stanton, for Frost, app’lt; C. G. & F. Reynolds, for The Methodist Episcopal Hospital, app’lt; William Hughes, for Tobin and ors., resp’ts.
   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 of chapter 319 of the Laws of 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 since 1848, except so far as the restriction has-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 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., 321), was similar in principle, the words of the charter being 1 ‘ to take subject to existing laws,” and amended “to take and hold by gift, grant or devise or otherwise subject to all provisions of law relating to devise and bequests by last will and. testament.” This case was held to come under the restriction.

The legislature never intended the restriction in law of 1848 to be general law; if it had, language would have been used to effectuate such a purpose.

• The restriction was only to 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 within two months prior to death 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 those laws that defendant’s charter was made subject, and only those.

The act of 1848 being specific, and relating only to cor- ■ porations 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 month’s limitation 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. Drew Theological Seminary, 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.

• Dykman, J., concurs; Barnard, P. J., not sitting.  