
    (82 Hun, 494.)
    PEOPLE’S TRUST CO. v. SMITH et al.
    (Supreme Court, General Term, First Department.
    December 14, 1894.)
    Charities—Validity op Bequest.
    Laws 1809, c. 413, created respondent, a charitable corporation, authorizing it to take property by devise “or otherwise,” and providing that it should be entitled to all the provisions and privileges of law relating to charitable institutions. Laws 1848, c. 319, § 6, provides that a devise or bequest to a charitable corporation shall be void unless the will was executed two months before testator’s death. Held, that the word “devise” includes “bequest,” and that respondent could not take personalty under a will made within the time specified. 30 N. Y. Supp. 342, reversed.
    Appeal from special term, New York county.
    Action by the People’s Trust Company, as executor of Eliza Smith, against John J. Smith and others, to construe a clause in the will of Eliza Smith, deceased. From a judgment construing the will (30 N. Y. Supp. 342), defendants John J. Smith, William E. Smith, John E. Mason, and Frederick Mason appeal.
    Modified.
    September 26, 1891, Eliza Smith, a resident of the city of New York, duly executed her last will and testament, of which the following is a copy: “I, Eliza Smith, hereby make the following as my last will and testament: First. I bequeath to my nephew Frederick Mason three hundred dollars ($300), to my nephew John E. Mason a like sum of three hundred dollars, and to my brother John J. Smith the sum of two thousand five hundred dollars ($2,500). Second. I bequeath the remainder of my estate to my executor, in trust to pay the income to my brother William Elliott Smith during his life, and upon his death to pay it to my brother John J. Smith during bis life. Third. Upon the death of my two brothers, I direct my estate to be divided equally between the Association for the Relief of Respectable Aged Indigent Females and the Presbyterian Home for Aged Women. Fourth. I appoint the People’s Trust Company of Brooklyn as executor of this will, and hereby give it power of sale over any real estate I may own, to be exercised in its discretion.” October 29, 1891, the testatrix died, and on the 9th of January, 1892, her will was duly admitted to probate, and letters testamentary were issued thereon to the plaintiff. The testatrix left 838,271.64 in personal property, but left no real estate. She left, her surviving, John J. Smith and William E. Smith, her brothers, and John E. Mason and Frederick Mason, her nephews, the children of a deceased sister, her only next of kin; and, as they asserted the third clause to be void because the testatrix died within two months after the execution of her will, the executor brought this action to have that question determined.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    John M. Shedd, for appellants Smiths.
    J. Warren Greene, for appellants Masons.
    A. R. Dyett, for respondent Presbyterian Home for Aged Women.
    W. F. Dunning, for respondent Association for the Relief of Respectable Aged Indigent Females.
    Geo. W. Wingate, for respondent executor.
   FOLLETT, J.

The question raised by the pleadings in this action is whether the remainder bequeathed by the third clause to the Association for the Relief of Respectable Aged Indigent Females and to the Presbyterian Home for Aged Women is void under the sixth section of chapter 319, of the Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies,” which provides:

“Sec. 6. Any corporation formed under'this act shall be capable of taking, holding and receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, * * * and no such devise shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.”
“An Association for the Relief of Respectable Aged Indigent Females in the City of New York” was incorporated by chapter 69 of the Laws of 1815, which provided that it “shall by that name and style be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of said corporation: provided, that such estate shall never exceed in value one hundred thousand dollars nor be applied to any other purposes than those for which this incorporation is founded.” By the seventh section of this act it was provided that the corporation should continue until the last Thursday in November, 1830. By chapter 308, Laws 1830; chapter 257, Laws 1849; chapter 328, Laws 1868; and chapter 88, Laws 1889,— the act is continued in force until March, 1940. By chapter 382, Laws 1860; chapter 116, Laws 1878; and chapter 224, Laws 1885,— the corporation is “authorized to take, receive and hold any purchase, gift, devise or bequest, from any person or persons, estate, real, personal or mixed, to an amount not exceeding ten hundred thousand dollars.”

It was conceded on the trial of this action that the property then held by the corporation did not exceed $700,000. There is no provision in any of the acts relating to this corporation which makes the sixth section of chapter 319 of the Laws of 1848, above quoted, applicable to it; and on the trial the claim asserted in the pleadings—that the bequest of one-half, of the remainder to this corporation was invalid1—was abandoned, and an appeal has not been taken from that part of the judgment adjudging that the bequest of one-half of the remainder to this corporation is valid. The only question presented on this appeal is whether one-half of the remainder bequeathed to the Presbyterian Home for Aged Women is valid, because the will was not executed two months before the death of the testatrix. The Presbyterian Home for Aged Women was incorporated by chapter 413 of the Laws of 1809. The fourth section of this chapter provides:

“Sec. 4. The said corporation are hereby authorized to take and hold by gift, purchase, devise or otherwise, subject to all provisions of existing laws in relation to devises by last will and testament * * * and shall be entitled to all the provisions and privileges of law of charitable institutions.”

In case a corporation is authorized by statute to take property by devise or bequest, “subject to all of the provisions of law relating to devises and bequests by last will and testament,” or “subject to the provisions of law relating to bequests and devises to religious societies,” the limitation imposed by section 6 of chapter 319 of the Laws of 1848 applies, and a devise or bequest to the corporation is invalid unless the will is executed two months before the death of the testator. Kerr v. Dougherty, 79 N. Y. 327; Stephenson v. Short, 92 N. Y. 433. In the case at bar it is conceded that the provision in the statute under w'hich the Presbyterian Home for Aged Women was incorporated—“subject to all provisions of existing laws in relation to devises by last will and testament”—brings devises to that corporation within section 6 of chapter 319 of the Laws of 1848, and that if the testatrix had devised real estate to the corporation, and had died within two months after the execution of the will, it would have been invalid. The bequest was upheld at special term upon the theory that, the word “bequest” not being used in the act, it was not the intention of the legislature to make bequests to this corporation subject to section 6 of chapter 319 of the Laws of 1848. By section 4 of chapter 413 of the Laws of 1869 the corporation is authorized to take property by “devise or otherwise.” The words “or otherwise” were construed at special term, and we think correctly, as authorizing the corporation to take property by bequest. Under that construction the corporation was authorized by the section to acquire property by devise or bequest; and it is declared in the same action that it “shall be entitled to all the provisions and privileges of law relating to charitable institutions.” Considering the purpose of the act, the object for which this corporation was incorporated, and reading the whole section together, it seems to us that it was the intention of the legislature not to give this corporation greater privileges than those generally given by the statutes to charitable institutions, but that it should have the same power to take by will as is conferred by the statutes on like corporations. It seems to us that it was clearly the intention of the legislature to subject this corporation to all of the provisions of existing laws relating to devises and bequests. It is a rule that a statute shall be reasonably construed, and we can see no reason why the legislature should have intended to have made this corporation subject to the statute of 1848 in respect to devises, and not in respect to legacies. The statutory provisions that wills disposing of property in favor of religious and charitable institutions must be executed two months before the testator’s death is for the protection of heirs and next of kin from improvident dispositions by testators of their estates when weak and in apprehension of death; and such must have been the intention of the legislature in imposing a limitation as to devises to this corporation, and we can see no reason why the legislature should have intended not to have imposed limitation upon bequests. The word “devise” has frequently been construed to embrace bequests, when used in statutes or wills. By chapter 244 of the Laws of 1849 the American Female Guardian Society was authorized to receive property by “gift or devise,” and it was held (Lefevre v. Lefevre, 59 N. Y. 444) that the word “devise” embraced “bequest.” The word “bequest,” when used in wills, has frequently been held sufficient to pass real estate, and the word “devise” to embrace personalty. Jackson v. Housel, 17 Johns. 281; Ladd v. Harvey, 21N. H. 514; 2 Redf. Wills (3d Ed.) 315 et seq. The judgment should be modified by declaring the bequest to the Presbyterian Home for Aged Women invalid, and, as modified, affirmed, with costs in favor of the executor and the appellants, payable out of the estate. All concur.  