
    Brusnahan v. Manhattan College et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.
    «Charities—Bequest to College—Construction of Statute.
    Laws Ñ. Y. 1853, c. 184, § 10, which provides that every institution incorporated thereunder shall he subject to the restrictions of Rev. St. N. Y. pt. 1, c. IS, does not subject such institutions to the provisions of Laws N. Y. 1848, c. 319, which renders invalid bequests to charitable institutions under a will made within two months of ■testator’s death, since the last-named act was not originally part of said chapter 18, though it was included in it in a private compilation of statute law known as ■“Revised Statutes New York, 4th edition, ” which compilation was in existence when the act of 1853 was passed, and had official recognition by certificate of the secretary of state.
    Appeal from special term, Hew York county.
    This was an action by John Brusnahan, sole heir of Joseph M. Linehan, •deceased, against Manhattan College and others, to declare void a bequest made to said college by said Linehan. The Manhattan College appeals from an interlocutory judgment overruling its demurrer to the complaint. Laws H. Y. 1848, c. 319, provides that any five or more persons may associate and become a corporation for benevolent, charitable, scientific, and missionary purposes, and (section 6) that any corporation formed under that act may receive bequests, “but no such bequest shall be valid in any will which shall mot have been made and executed at least two months before the death of the testator.”
    Argued before Van Brunt, P. J., and Brady and Bartlett, JJ.
    
      C. E. Miller, for appellant. John Townsend, for respondent.
   Van Brunt, P. J.

One Joseph M. Linehan made his will on the 9th day of May, 1886, and died on the 1st day of July, 1886, unmarried, and without issue. By his will, after making various bequests, he gave to Manhattan College $5,000. The Manhattan College was incorporated in April, 1863, by •charter from the regents of the University of Hew York, under and by virtue •of chapter 184 of the laws of 1853 and the Revised Statutes. It is claimed that the devise to Manhattan College was void upon the ground that the will was not executed at least two months before the death of the testator. By section 10, c. 184, Laws 1853, it was provided that every institution incorporated under this act shall have and possess all the powers and privileges, and be subject to the provisions, liabilities, and restrictions, of the eighteenth •chapter of part 1 of the Revised Statutes, so far as the same are applicable, and have not been repealed. It is because of this provision that it is claimed that the devise to Manhattan College was void, in that the sixth section of chapter 319 of the Laws of 1848 rendered unlawful devises, unless under •a will made and executed at least two months before the death of the testator. At the time of the passage of the act of 1853 there was a compilation of statute law known as the “fourth edition of the Bevised Statutes, ” published by private publishers. This edition had state official recognition by certificate of the secretary of state, and had the legislative permission to its publication so far as it refers to the Bevised Statutes, and by like authority may be read in evidence. And in the eighteenth chapter of part 1 of this edition of the Bevised Statutes is found incorporated the provisions of the act of 1848 referred to. This provision is not found in the Bevised Statutes themselves. There is an eighteenth chapter of part 1 of the Revised Statutes to which the descriptive words •of the act under consideration would apply. Its subject-matter relates to powers, privileges, and liabilities of corporations, as well as other matters relating to corporations; but it does not contain, as already said, the prohibition by means of which it is sought to invalidate the bequest to the appellant. Under these circumstances it is impossible for us to say that the legislature did not intend to refer to the eighteenth chapter of part 1 of the Revised Statutes, and there is nothing to indicate that they intended to refer to the fourth edition, which contained these prohibitive words. In the case of People v. Clute, 50 N. Y. 451, it was held that in an act which enacted that, a certain section of part 1 of the Revised Statutes, fourth edition, should be amended, reference was undoubtedly intended to be made to the edition of the Revised Statutes published as above mentioned; but in that case the court held that, if the words “fourth edition” had not appeared, they could not have said that the legislature did not intend to refer to the Revised Statutes themselves. Applying the rule of construction which seems to be laid down in the case cited, we see no reason for holding that the fourth edition of the-Revised Statutes was intended by the legislature when it was not mentioned.. We think, therefore, that the restriction did not exist prohibiting the appellant, the Manhattan college, from taking the legacy in question. The judgment appealed from must be reversed, and the demurrer sustained, with, costs. All concur.  