
    PEOPLE’S TRUST COMPANY v. SMITH.
    
      N. Y. Supreme Court, Special Term, First District;
    
    June, 1894.
    "1. Wills ; who may take.] The provisions of the act for the incorporation of benevolent and charitable corporations {L. 1848, c. 319) which invalidate devises and bequests contained in a will which is not made and executed at least two months before -the death of testator, is not a law in relation to last wills generally, but only limits the powers of a corporation organized under such act to take property by devise or bequest.
    ■2. The same.] The provisions of that act are not made applicable to a bequest of personal property to the Presbyterian Home for Aged Women by the provision of the special act of its incorporation (L. 1869, c. 413), authorizing it “to take and hold by gift, purchase, devise or otherwise, subject to all the provisions of existing laws in relation to devises by last will and testament,” and providing that it“ shall be entitled to all the provisions and privileges of law relating to charitable institutions.”
    3. Statutes.] The word “ devise ” as used in a special act for the incorporation of a charitable institution, authorizing it to take by devise subject to all existing laws relating to devises by will, will not be construed to include a bequest of personal property in order to restrict the privileges granted by the act, unless such intent is clear.
    4. The same.] A special act of incorporation in providing that the corporation “ shall be entitled'to all the provisions and privileges of the law relating to charitable institutions ” confers privileges, and does not impose limitations and disabilities.
    Trial by the court without a jury.
    The action was brought by the People’s Trust Company, as executor of Eliza Smith, deceased, against John J. Smith, and others, for the construction of the will of plaintiff’s testator.
    The complaint alleged, among other things, that the estate consisted entirely of personal property, and that testator died within sixty days after making will.; and prayed construction of the following provision : “ Third; Upon the death of my two brothers I direct my estate to be divided equally between the Association for the Relief of Respectable Aged Indigent Females, and the Presbyterian Home for Aged Women.”
    The defendants, who were next of kin, contended that the bequest was within the provisions of the Laws of 1848, chap. 319, invalidating devises and bequests to charitable corporations, if the will shall not have been made and. executed at least-two months before testator’s death.
    
      Wingate, Cullen & Miller, for plaintiff.
    
      Dunning & Fowler, for defendant, Smith.
    
      Arnold, Green & Patterson, for defendant, Mason.
    
      W. F. Dunning, for defendant,
    the Association for the Relief of Indigent Females.
    
      Townsend, Dyett & Einstein, for the defendant,
    the Presbyterian Home for Aged Women.
   Ingraham, J.

The only question presented is whether the provisions contained in section 6 of the act of 1848 for the incorporation of benevolent and charitable corporations, which invalidates the bequests contained in a will which had not been made and executed at .east two months before the death of the testator, is binding upon the defendant, the Presbyterian Home for Aged Women. This corporation was created by special act of the Legislature (chap. 413, Laws of 1869), and is thereby “ authorized to take and hold, by gift, purchase, devise or otherwise, subject to all provisions of existing laws in relation to devises by last will and testament, . . . . and shall be entitled to all the provisions and privileges of law relating to charitable, institutions.” The next of kin of the testatrix claim that the bequest of one-half of the residuary estate to this corporation is not valid, because the testatrix died within two months after the execution of the will; it being claimed that the limitation of the right of a corporation organized under the general act of 1848 to take by virtue of bequests contained in a will applied to this corporation.

Two provisions of the act of 1869 are relied on to make the act of 1848 applicable : First, that the authority to take, given by the act of 1869, being-made subject to all provisions of existing laws in relation to devises by last will and testament, it was the intention to include the provision of law regulating bequests, so that the word “ devise ” should be considered to mean any gift of property, either real or personal, by a last will and testament. The word “ devise ” has a well-defined legal meaning. It is a gift of real property by a person’s last will and testament, and the object must, therefore, be that kind of property {Bouvier s Latv Dictionary). And although the courts have, in order to give effect to a testator’s evident intention, included personal property as covered by the word “ devise ” when used in a will, such a meaning has never been given to the word in order to restrict or abridge a right or privilege granted where it was not necessary to carry a clearly expressed intention into effect. The right of this corporation to take this bequest does not come from the act of 1848. It is given by the special act of incorporation in the most general terms, being made subject to the provisions 'of existing laws in relation to devises by last will and testament. The act of 1848 is not mentioned, and I do not think it could be said that the provision of the act in question is a law in relation to last wills generally ; it is only a limitation as to the power of corporations organized under its provisions to take property by virtue of a devise or bequest. There were many corporations in existence at the time of the passage of the act of 1869 authorized to take by devise or bequest without this limitation, and I can. see no reason why the provisions which are contained in such acts are not as applicable to this corporation as the provisions of the act of 1848. There is here no clearly defined intention of the Legislature that this provision in the act of 1869 should have reference at all to the act of 1848, or that the limitation as 'to corporations organized under that act should apply to this corporation ; and there is nothing to show that the Legislature had the intention, by the insertion of this clause, to restrict the right of this corporation to take any bequest.

The second claim made by the next of kin is that the words “ shall be entitled to all the provisions and privileges of law relating to charitable institutions ” made this limitation in the act of 1848 applicable to this corporation. It is not entirely clear what the word “ entitled ’’ as used in this connection means. To “entitle" is defined as “ To give a title, right or claim ; to give a right to demand or receive ; to furnish with grounds for claiming, with a direct object of the person claiming and a remote object of the thing claimed." It is directly opposed to the idea of imposing an obligation or limitation, but gives to the person named a right to demand or receive. Thus, when this corporation was said to be entitled to all the provisions and privileges of law relating to charitable institutions, it was given the right to have and enjoy the provisions and privileges—not to have imposed upon it limitations and disabilities which it did not ask for. By reference to § 6 of the act (Laws of 1869, vol. 1, p. 937) it will be seen that very different language was used when it was the intention to impose upon the corporation the limitations and restrictions contained in another act of the Legislature.

I think it clear, therefore, that this corporation is entitled to take an undivided half of the testatrix’s property upon the death of the beneficiaries for life, and judgment is directed accordingly ; costs of all parties to be paid out of the estate ; judgment to be settled on notice.  