
    John C. Rich and Others, Respondents, v. William B. Tiffany and Others, Defendants. The First Congregational Church and Society of Northbridge, Mass., Respondent; The Congregational Education Society, Appellant.
    
      Will — bequest to corporations in excess of one-half of the decedent’s estate—remote hews may object—value of the estate with power to use the principal, how determined— life estate, how deducted—Laws of 1860, chap. 360.
    Persons who are in fact heirs at law of a testator, however remote their relation-. ship may be, are entitled to raise the objection that the testator has devised or bequeathed to one of the various associations and corporations, mentioned in chapter 360 of the Laws of 1860, more than one-half part of his estate remaining after the payment of his debts.
    A testator, who left neither father, mother or child, or descendant of a child, by his will, provided, among other things, that his wife should have during the term of her natural life the income and profit of all his estate; that in case this was not sufficient to afford her a proper and. suitable support, his executors should sell and dispose of so much of his personal and real estate as might be necessary to provide for her personal comfort during , the lifetime of the wife, who was seventy years six months and sixteen days old when her husband died, and survived him about three years, and during which period of her widowhood the executors encroached considerably upon the principal of the estate.
    
      Meld, that the value of the estate must be determined as of the tjme of her death, and that it was not a case, in view of the discretionary power given to the executors to employ a part of the corpus in the support of the widow, where it was proper or possible to ascertain the value of the testator’s estate at the time of his death, and then deduct the value of the life estate.
    Appeal by the defendant, The Congregational Education Society, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 26th day of October, 1895, upon the report of a referee.
    The undisputed facts in this case show that one Jonathan C. Taylor, who resided in the city of Rochester, died upon the 13th day of February, 1891, leaving- a last will and testament and also a codicil thereto. By the provisions of his will he directed his executors to pay his just debts and funeral expenses and to erect suitable gravestones to mark the final resting place of himself and his wife, Harriet A. M. Taylor, if she should survive him. He also gave .to his wife for and during the term of her natural life the income and profit of his estate, both real and personal ;■ but provided that in case sucli income and profit were insufficient to afford his wife a proper and suitable Support and maintenance, his executors could sell and dispose of so much of his personal and real estate as might be necessary to provide for her personal comfort during her lifetime. He also gave, after the death of his wife, the sum of $1,000 to the First Congregational Church and Society of Northbridge, Mass., but by his- codicil this bequest was changed into a devise of a certain wood lot which he owned in Sutton, ’Worcester county, Mass.,, the value of .which is conceded to be $750 All the rest and residue of his estate, both real -and personal, he gave to the American College and Education Society, which is the same corporation known as the Congregational Education Society, its name having been changed by chapter 81 of the Acts and Resolves of Massachusetts for the year 1894.
    Mrs. Taylor, who was seventy years, six months and sixteen days old at the death of her husband, survived the latter for a period of about three years. During her widowhood the executors expended for’ her support and maintenance nearly $1,175 each year, about $300 of which sum was derived from the net income of the estate, which consisted in the ■ main of two houses- and lots in the city of Rochester valued at about $8,000 each,- and upon one of which there was a mortgage incumbrance of $2,900.
    The testator died leaving neither father, mother, brother, sister or child, or the descendant of any child, and this action is brought by • the plaintiffs who, with the defendants other than the two corporations, are the heirs at law of Mr. Taylor, to obtain partition of the real estate of which he died seized, upon the theory, that the defendant, the Congregational Education Society, is not entitled to take the entire residuum of his estate under the fifth clause of. his will for the reason that it is violative of the statute of 1860 limiting the right to devise or bequeath property to benevolent or other societies.
    
      Charles A. Wiclener. for the plaintiffs, respondents.
    
      Charles M.. Williams, for the defendant, respondent, the First Congregational Church and Society.
    
      Horace McGxcire, for the appellant.
   Adams, J.:

The facts above recited seem to present two questions for our consideration, and these are,: First. Is this will, so far as-the devise ■ to the appellant is concerned, within the condemnation of chapter 360 of the Laws of 1860 i and, second; did the court below adopt the correct method of ascertaining that fact ?

It is conceded by all the parties that the appellant is one of the corporations referred to in the statute just mentioned, which reads as follows: No person having a husband, vafe, child or parent shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part 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 one-half and no more).” As has been stated, the testator left a wife, but none of the other kindred specifically mentioned in this statute, and the first query which presents itself to our minds is, whether or not the respondents, whose relationship to the testator was very remote,, are in a position to avail themselves of its provisions. In the case of The Church of the Redemption v. Grace Church (68 N. Y. 570-582) it was held that to enable a person to make inquiry into-an excess on the part of a corporation in its accumulation, he must •be in a position to claim an interest in the property, if it is adjudged, that the corporation may not; and in discussing the same question, which arose under the statute of 1848 (Chap. 319), Rapallo, J., in the case of Stephenson et al. v. Short et al. (92 N. Y. 433-441), says: Conceding that the purpose of the two months’ clause is to-prevent the testator when in ewtremis from devoting his estate to charitable or religious purposes to the disinheriting of his kindred, and heirs, and that it is intended for their protection, we find nothing to indicate that it ever was the policy of the Legislature of this State to confine that protection to -the wife, children or parents of the testator.”

We also discover that this question has been expressly adjudicated in at least two instances by the Supreme Court of this State (Harris v. Slaght, 46 Barb. 470 ; McKeown et al. v. Officer, 6 N. Y. Supp. 201), and that in the case' last cited an appeal to the Court of Appeals was dismissed without any expression of disapproval by that court of the conclusion reached by the court below upon this feature of the case (127 N. Y. 687).

In the Fayerweather will case (Trustees of Amherst Coll. v. Ritch, 91 Hun, 509), recently decided by the General Term of the first department, the learned presiding justice appears to entertain a ' different view of the scope and meaning of this statutebut, inasmuch as the view expressed by him was not necessary to the decision of that case, it cannot be regarded as an authority in conflict with those already cited.

We conclude, therefore, that the respondents, inasmuch as they . are the heirs at. law of the testator, having an interest in his estate, provided they make good their contention, are entitled, by reason of their relation, to avail themselves of the provisions of the statute in question, however remote their relationship may have been. Having reached this .conclusion we are unable to discover any error in the method adopted by the learned referee in determining the value of the testator’s estate. ,

Had the testator given to his wife simply a. life estate with the remainder over to the appellant, the rule contended Tor by the learned coiuisel for that corporation would undoubtedly have been the correct one to have applied, because in that case it would have been proper to have ascertained the value of the testator’s estate at the time of his death, and also the. value of the life estate which was easily ascertainable by the aid of the annunity tables. (Hollis v. The Drew Theological Seminary, 95 N. Y. 166.) But here the testator not only left his widow a life estate, but he gave to his executors discretionary power to devote such portion of the corgms of the estate as in their judgment would be reasonable for her proper support and maintenance. What portion was necessary dr proper for that purpose could only be ascertained by experience, and it follows, therefore, that a computation must necessarily be deferred until the death of the widow, because no possible basis could be furnished therefor at any previous time. At all event's the late General Term of the fifth department in The Matter of Teed (59 Hun, 63; 76 id. 567) established the rule adopted by the referee in a case, the circumstances of which were very similar to those in the . present ease, and we are content to follow the rule there established.

The views thus expressed lead to an affirmance of the judgment appealed from, with costs to the respondents to be paid out of the estate. And inasmuch as the appeal, so far as it affected the Congregational Church and Society, was expressly waived upon the argument, ;we think that that respondent should also have a separate bill of costs from the same source.

Judgment affirmed, with costs to the plaintiffs, respondents, to be paid out of the estate, and a bill of costs to the Congregational Church and Society payable out of the estate.

All concurred.

Judgment affirmed, with costs to the plaintiffs, respondents, to be paid out of the estate, and a bill of costs to the Congregational Church and Society payable out of the estate.  