
    Robert H. Pearson, Respondent, v. John J. Collins, Jr., as Executor, etc., of David Pearson, Deceased, and Others, Defendants, Impleaded with St. Mary’s Hospital of the City of Brooklyn, Appellant.
    Second Department,
    June 15, 1906.
    Will — Laws of 1848, chapter 319, section 6, not repealed — bequest to benevolent corporation made less than two months before testator’s death. '
    The provisions of section 6 of chapter 319 of the Laws of 1848, invalidating devises and bequests to corporations formed under said act unless made at least two months before the death of the testator, is not repealed, and has in fact been specifically continued in force by chapter 638 of the Laws of 1903. Hence, when a will making a gift to such a corporation was executed less than two months before the-testator’s death, the gift is invalid.
    Appeal . by the. defendant, St. Mary’s Hospital of the City of Brooklyn, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December^ 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the complaint.
    
      John R. Kuhn, for the appellant.
    
      Omar Powell [Daniel L. Cady with him on the brief], for the respondent.
   Woodward, J. :

While the pleading in this action is evidently based upon the theory that it is an action in equity, the facts stated, for the purposes of a demurrer, appear to-bring the case within the provisions of section 2653a of the Code of Civil Procedure, so that it hardly appears necessary' to determine the character of the action, and as all of the parties who are necessary to the determination of the question at issue are before the court, and there are none to he prejudiced by the judgment, the. only question necessary to determine is whether the provisions of section 6 of chapter 319 of the Laws of 1848 are still in force. The complaint alleges that the corporations, ' - whose rights under the will of David Pearson are challenged, were organized under the provisions of the act cited, and this is admitted by the demurrer, and if section 6 of said act is still in force, the testator having died within three days .of the making and publishing of Iiis will, there can be no doubt that the plaintiff has stated a good cause of action, and is entitled to the relief which he demands.

Section 6' of chapter 3.19 of the Laws of 1848 provided.: “ Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any i devise or bequest contained in any last will or testament' of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars, provided 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 or 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.” .

Clearly if this provision of law was in force at -the time of testator’s. death he had no power to give and the corporations had no power to take, for the will was made within three days of his ' death, or, to be definite, the will was made and published on thé 9th day of June, 1905, the testator dying on the 13th of June, 1905. In Lefevre v. Lefevre (59 N. Y. 434, 449) it was held that- chapter 360 of the' Laws of I860 did not operate toi repeal, ,-either by implication or by express terms, that part of the proviso ■ of section 6 of the act-of 1848 which forbids the taking of a devise in -a will madp not moré than two'months before death, and this view was held, by the court in Kerr v. Dougherty (79 id. 327, 336), and we , do not find that this construction of the effect of subsequent statutes has ever been questioned.

But Assuming the section to have been repealed, the Legislature in 1903, befoi'e the making of this will, and before the death of the; testator, enacted that section 6 of chapter 319 of'the Laws of 1848 should be amended so as to provide exactly the same limitation in reference to the two months before the testator’s death whicbq ■ existed in the Original. (See Laws of 1903, chap. 623.) The Legislature not only assumed the original act to be still in force-in so far as section'6 was concerned,"but it re-enacted the language of the section in so far as the clause in question is concerned, and it had the right to revive that section if it-was so disposed, even if the section had been previously repealed. As the law stood at the time of testator’s death, he could not devise or bequeath property to corporations created under the provisions of chapter 319 of the Laws of 1848, unless he made and executed his will at least two months before his death, and it is not disputed that the will here under consideration was made only a few days before testator’s death. It was evidently the intention of the Legislature to protect persons who were near to death from the importunings-of this class of corporations, and the policy of the State having been declared so lately as 1903, this ■ court will hardly assume that the legislative department was in error in assuming that section 6 of the act of 1848 stood unrepealed, and especially in view of the decisions which have been cited.

We are of opinion that the complaint states a good cause of action, and that the interlocutory judgment overruling defendant’s demurrer should be affirmed, with costs. " •

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.  