
    Theodora B. Frost, Appellant, v. Emilie B. Emanuel and Barbara Emanuel, Defendants, Impleaded with Board of Foreign Missions of the Methodist Episcopal Church of New York and Kings County Savings Institution, Mortgagee, Respondents.
    Second Department,
    October 4, 1912.
    Will — gift to charitable institution—statutory limitation of amount of gift — computation of value — valuation of life estate —partition.
    In' ascertaining whether a testamentary gift to a charitable organization exceeded one-half the estate, contrary to the provisions of chapter 360 of the Laws of 1860, the whole estate must be treated as converted into money at the testator’s death, and if the money value of the portion given does not exceed one-half the statute has not been violated.
    Where the value of a life estate is to be ascertained after the death of the life tenant the computation should be based upon the actual time he lived, rather than upon his expectancy of life under the Northampton tables at the time the estate vested.
    
      Where, upon computing the actual value oí an estate for life under the rule aforesaid, a gift of the residuary to a charitable institution did not exceed one-half of the estate, the heirs of the testator cannot maintain an action to partition the property upon the ground that a portion in excess of the gift to the charitable institution allowed by the statute vested in them.
    Appeal by the plaintiff, Theodora B. Frost, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 16th day of October, 1911, upon the decision of the court after a trial at the Kings County Special Term dismissing the complaint.
    
      William R. Keese [Samuel Walker with him on the brief], for the appellant.
    
      Lemuel Skidmore, for the respondent Board of Foreign Missions of the Methodist Episcopal Church.
   Woodward, J.:

The plaintiff, brings this action in partition. There aré no disputed facts. One Bernhardina Hartman was the owner of two certain parcels of improved land in the borough of Brooklyn. She died on the 8th day of March, 1891, leaving a last will and testament, by the terms of which she created a life estate in favor of her husband, Ludwig Christian Hartman, with the remainder over to the Missionary Society of the Methodist Episcopal Church. This latter provision was held by the siirrogate to foe contrary to the provisions of chapter 360 of the Laws of 1860, prohibiting the devise of more than one-half of an estate under certain circumstances to charitable, missionary and religious institutions, and the will was admitted to. probate as a valid devise of one-half of the estate. In other words, the will was found by the surrogate to comply with all of the formalities of law, and it was admitted to probate, its provisions being limited by the statute above referred to, arid if there was any excess of one-half of such estate devised to the missionary society, it of course vested in the heirs at law of the decedent.

The • defendant, -the missionary society, entered into an agreement with the-life tenant, by which it undertook to pay him the sum of one dollar per day during his lifetime for his estate, and this contract appears to have been performed for a period of sixteen years, when the life tenant died. The theory of the plaintiff is that the estate not conveyed by the will to the life tenant and the missionary society vested in the heirs at 'law at the death of the testatrix, and that the value of the said life estate should be determined by the Northampton tables as of the date of the death of the testatrix, and not as of the date of the death of the life tenant. The learned court at Special Term held in a memorandum that “ where the question arises, after the duration of the life estate has been demonstrated the actual fact must be taken as the basis of computation,” and this was the doctrine of Matter of Teed (69 Hun, 63) and Rich v. Tiffany (2 App’ Div. 25). The rule was laid down in Hollis v. Drew Theological Seminary (95 N. Y. 166, 118) that “ To ascertain whether a testator has given more than one-half of his estate, his whole estate must be treated as converted into money, at his death, and if the money value of the portion given is not more than one-half, then the statute has not been violated,” and it was there held that the life estate not having been terminated, it was proper to determine the value of the life estate by reference to the Northampton tables or other standards, which was merely asserting the doctrine that in every case the best evidence should be given. In the case now before us the value of the life estate is known;- the exact length of time which the life beneficiary lived, and the value of that use are easily ascertainable, and to adopt an uncertain standard when the exact standard is at hand would be contrary to a fundamental rule of law. The value of the estate, should be determined as of the date of the death of the testator, and the value of the life estate should be fixed as of that date, based upon the now known facts. Tried by this standard, there is no evidence in the case to show that the testator disposed of more than one-half the value of his estate to the missionary society, and the complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Hirschberg, Thomas, Carr and Rich, JJ., concurred.

Judgment affirmed, with costs.  