
    In the Matter of the Judicial Settlement of the Accounts of Charles Stilson, as Executor, etc., of Sophia M. Beers, Deceased. The Board of Home Missions of the Presbyterian Church in the United States of America and Others, Appellants; Rachel Wilcox and Others, Respondents.
    
      Will—gift to missiona/ry societies in excess of one-half the estate — the husband, by an ante-nuptial agreement, may waive the statutory provision — next of Tcin, not entitled to the estate, cannot insist upon the application of chapter 360 of the Laws of 1860.
    Chapter 360 of the Laws of 1860, which provides that no person having a husband, wife, child or parent shall, by will, bequeath to any benevolent, charitable, literary or scientific, religious or missionary society, association or corporation more than one-half of his estate after the payment of his debts, was not intended solely for the benefit of the relatives named in the statute, but for the benefit of any parties who would, if the decedent had died intestate, take the decedent’s property in connection with any of the relatives named in the statute.
    The provisions of the statute may be waived by united action on the part of the parties for whose benefit it is intended.
    Where the decedent was a woman whose estate consisted solely of personal property, which would, in the event of her death intestate, have passed to her husband, she having left no parent or child or descendant of any child her surviving, the husband may waive the provisions of the statute, and the next of kin may not raise the question as to the application of the statute to a gift to missionary societies in excess of one-half of the decedent’s estate.
    An ante-nuptial agreement made between the husband and wife, by which each of the parties agreed that neither of them should, in the event of the death of the other, take any interest in such other’s property, either as heir at law, next of kin, or otherwise, constitutes an effectual waiver on the part of the husband.
    
      Appeal by The Board of Home Missions of the Presbyterian Church in the United States of America and others, residuary legatees named in the last will and testament of Sophia M. Beers, deceased, from portions of a decree of the Surrogate’s Court of Otsego county, entered in said Surrogate’s Court on the 27th day of March, 1903.
    This proceeding was instituted by Charles Stilson, as executor of the last will and testament of Sophia M. Beers, deceased, for a judicial settlement of his accounts. Sophia M. Beers died on the 19th day of December, 1900, leaving her surviving a husband, Oliver Beers, and no parent or child or descendant. By her will, after certain legacies, she gave the residuum of her estate to “ The Board of Home Missions of the Presbyterian Church in the United States of America, incorporated April 19th, 1872, by the Legislature of the State of New York, The Board of Foreign Missions of the Presbyterian Church in the United States of America, The American Bible Society, and the American Tract Society, to be equally divided between said societies, to be used and disposed of according to the rules, regulations and by-laws of said respective societies.” After deducting the debts and the transfer tax, these residuary legatees would receive the sum of $3,642.99 over and above one-half of the estate. Upon the accounting of the executor the next of kin ob jected that these residuary legatees are not entitled to said moneys by reason of chapter 360 of the Laws of 1860. This objection raises the one question involved in this case. Prior to the marriage of the said testatrix to Oliver Beers an ante-nuptial agreement was signed which reads as follows:
    
      “ This agreement made and entered into this 29th day of May, 1880, between Oliver Beers of the town of Morris, county of Otsego, and State of New York, of the first part, and Sophia M. Platt, of the town of Butternuts, county and State aforesaid, of the second part, wii/nesseth: That whereas, a marriage is about to be had and solemnized between the said parties, each of which are possessed of certain real and personal property and each of which would be entitled to certain rights and interests in the property of the other at the decease of either of the parties, by the statutes of the State of New York, if this instrument was not executed, and such marriage should be had and solemnized :
    
      “Row, therefore, it is hereby mutually agreed between the parties hereto, in consideration of such marriage, that in case such marriage shall be solemnized as is contemplated by the parties hereto, that each party hereby releases to the other, all claim to property real or personal or property of any nature whatsoever that may be owned or possessed by either party at the time of such marriage or thereafter acquired up to the time of the decease of either, party, that either might acquire or be entitled to as husband or wife by virtue of the statute law of this State, were this' instrument not executed, each party hereto owning property in their own right, .and each being desirous of continuing to own their own property of all kinds in their own right, and this marriage is to be had and solemnized only upon the express condition that each of the parties hereto shall and do hereby waive and release to each other, and the heirs, executors and assigns of each other all claim or claims to any property owned by either at the time such marriage takes place or at the time of the decease of either or at any other time, that either might have as husband or wife by law were this instrument not executed. The object and intent of this instrument being to deprive each of the parties hereto from all right of inheritance,- as heir at law, next of kin, or otherwise, in the property of the other, leaving the property of each to be managed and controlled by themselves, and at the decease of either to- descend the same as it otherwise would had the marriage never taken place.
    
      “In Witness Whereof, the said parties have hereunto set their hands and seals the day and year first above written.
    “ Executed in presence of OLIVER BEERS. [l. s.]
    “Louisa Beers Whitcomb, SOPHÍA M. PLATT, [l. s.]
    “May 29, 1880.”
    The surrogate has held that under the law of 1860 the residuary legatees were not entitled to more than one-half of the property. From the decree entered upon this decision the residuary legatees appeal. -
    
      Tilley Blakely, for the appellants.
    
      Nathan Bridges, for the respondents Rachel Wilcox and others.
    
      Lynn, J. Arnold, special guardian, for the respondents Mary K. Backer and others.
   Smith, J.:

The controversy here is upon the construction of chapter 360 of the Laws of 1860. By the provisions of that statute no person having á husband, wife, child or parent, shall, by will, bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation more than one-half of his estate after the payment of his debts. Such a bequest to the extent of one-half, however, is deemed valid. This testatrix left a husband. By the letter of the statute, therefore, the residuary bequest, as far as it exceeds one-half of the estate, becomes void. This interpretation could hardly be questioned by the residuary legatees if it were not for the existence of an ante-nuptial agreement made prior to the testatrix’s marriage, by which the parties to such agreement have waived and released to each other, their heirs, executors and assigns, “ all claim or claims to any property owned by either at the time such marriage takes place, or at the time of the decease of either, or at any other time, that either might have as husband or wife by law were this instrument not executed. The object and intent of this instrument being to deprive each of the parties hereto from all right of inheritance as heir at law, next of kin, or otherwise, in the property of the other, leaving the property of each to be managed and controlled by themselves, and at the decease of either to descend the same as it otherwise would had the marriage never taken place.”

The act of 1860, which is here before us for construction, has been discussed by the courts in various cases. The courts are not all agreed as to what is the exact purpose of the act. That it is not a mortmain statute seems, however, to be generally conceded. The act can hardly be held to have been passed solely for the benefit of those named in the act. Its purpose is, to my mind, clearly broader than this. If, for instance, a man dies leaving a wife, while under the intestate laws of the State the wife would receive a portion of his property, she would not receive it at all. The next of kin of the husband are directly benefited under the terms of the statute. We are not prepared to assent to the doctrine of Fraser v. Hoguet (65 App. Div. 192). In the illustration given it cannot be possible that the rights of the next of kin in the estate of the deceased husband can thereafter be dependent upon the election of the wife. If that were so she could auction that election between the residuary legatee and the next of kin. Any interpretation of the statute which would place the rights of the next of kin in such hazard would be unpractical and unreasonable. Nor do I read such a rule in the case of Amherst College v. Ritch (151 N. Y. 282). Reading the opinion in that case in connection with the facts there for decision, one proposition is held, to wit, that the rights under the statute may be waived by the widow and next of kin, and that the next of kin in that case had rights which could only be waived by them.

If this statute were intended solely for the benefit of those named ■ in the statute, this purpose could be accomplished in a much clearer and more simple way. Where, after the making of a will, á child is born who is not provided for by a settlement or in the will, the law provides not that the will shall be void, but that the child shall take the share.to which he would be entitled under the intestate laws-of the State.' Such a provision might well have been made as to the husband, wife, child or parent mentioned in the statute of 1860, but the Legislature has seen fit to make a different rule and declare such legacy void, the direct effect of which is not only to make the legacy void as to the persons named in the statute, but as to any party who-would, under the intestate laws of the State, .take in connection with such party in case of intestacy.

The case at bar, however, calls for the application of the .rülé to a state of facts quite different from those found in any adjudicated case. The property left was personal. No children survived. The husband then, except for this ante-nuptial agreement, would, Upon distribution, be entitled to the whole surplus. Had this ante-nuptial agreement not been executed the husband could, after the death of the wife, have waived the statute of I860 so as to pass the property wholly to the legatees named. Such is the effect of the decision in Amherst College v. Ritch (supra). I see ho reason why that waiver could not be made before death by an agreement upon consideration, and if before death why not before marriage by an ante-nuptial agreement ? The next of kin within the apparent purview of the statute are those only who inherit together with one of the persons named in the statute, as, for instance, if a husband dies leaving a wife and no children. The statute indicates no purpose to provide for remote next of kin in substitution for those named in the statute. Those cases which speak of the right of the next of kin are those only in which the next of kin inherit in connection with one of the persons named in the statute. Where the husband who would otherwise be entitled to the entire surplus has waived his claims, either before or after the death of the wife, the statute is, I think,, so far personal as to preclude the next of kin from, raising the question. With this interpretation of the rule as stated in Amherst College v. Hitch, no antagonism is found to the rule stated in Harris-v. American Bible Society (2 Abb. Ct. App. Dec. 316). I am of" opinion, therefore, that the release of the husband contained in the ante-nuptial agreement was effectual to waive the provision of the statute as to the residuary legatees, and that the property should pass as specified in the will. The decree of the surrogate should, therefore, be reversed, with one bill of costs to the residuary legatees, one to the special guardian and one to the next of kin, payable out of the fund.

All concurred.

Decree reversed and matter remitted to the surrogate, with direction to proceed in accordance with opinion, with one bill of costs to-the residuary legatees, one bill of costs to the special guardian and one to the next of kin, payable Out of the fund.  