Opinion
Submitted January 21, 1891
Decided January 27, 1891
George Bliss for appellant.
George W. Carr for respondents.
Hays Greenbaum for respondents.
Benjamin A. Kavanagh died in the city of New York on the 29th day of September, 1887, having in the previous month made a will, the 16th clause of which is as follows:
"I give, devise and bequeath the remaining one-third of such residue and remainder unto St. Francis Hospital of the City of New York, situated in Fifth street in said city, and now under the charge of the Sisters of the Poor of St. Francis, and in case such hospital be not incorporated, then I make such bequest to the Society or Order of Nuns having such hospital under their charge and care, for the use of such hospital."
The hospital was not incorporated, but it was in charge of the Sisters of the Poor of St. Francis, and they were incorporated by chapter 201 of the Laws of 1866, the 7th section of which is as follows:
"The said corporation shall possess the general powers and be subject to the general restrictions prescribed in the third title of the eighteenth chapter of the Revised Statutes, and also subject to the provisions of title seven, part first of chapter eighteen of the Revised Statutes, in relation to devises or bequests by will."
The respondents claim that this corporation can take nothing under the will, because it was executed less than two months previous to the death of the testator; and so the surrogate and the General Term have held.
It is not questioned that these decisions are correct, if section 6 of chapter 319 of the Laws of 1848, is applicable to this corporation.
The law of 1848 is a general law for the incorporation of "benevolent, charitable, scientific and missionary societies," and section 6 provides that any corporation formed under the act shall be capable of taking property by devise or bequest, but that no such devise or bequest shall be valid in any will which shall "not have been made and executed at least two months before the death of the testator." That provision, therefore, as contained in that act, is applicable only to corporations formed under that act, and there is no general law making it applicable, or making a similar provision applicable to all corporations.
This corporation was specially created by the act of 1866, and it is claimed that the provisions of section 6 of the act of 1848, are made applicable to it by the language of section 7 of the act of 1866, which makes it "subject to the provisions of title seven, part first of chapter eighteen of the Revised Statutes, in relation to devises or bequests by will." On an examination of the Revised Statutes proper, it is found that chapter 18 contains only four titles, and they have no provisions whatever in relation to devises or bequests by will, and there is nothing in the Revised Statutes whatever which condemns this gift to this corporation. But there have been several editions of the Revised Statutes published by individuals, and all of these editions have been in general use. They have been cited in the courts by lawyers and judges as the Revised Statutes, and they have been recognized as such by the legislature in appropriations made for their purchase for its library and the use of its committees. They are commonly called by that name, and the early and official edition has, to a very large extent, been superceded by these later unofficial editions. The fifth edition of the Revised Statutes was published in 1859, and chapter 18 of that edition contains twenty-seven titles, and title 7 embodies chapter 319 of the Laws of 1848, with the amendments thereto, and, of course, includes section 6 of that act. On the hearing before the surrogate that section was read from the Revised Statutes and his attention was thus called to it.
We may take judicial notice that that edition of the Revised Statutes was in common use in 1866, when the special act creating this corporation was passed. Unless the legislature in section 7 of this act referred to that edition of the Revised Statutes by the language it used, then the language has no meaning whatever. We think it is plain that the reference in the act of 1866 was to the Revised Statutes then in use, and that section 6 of the act of 1848, embodied in title 7 of chapter 18 of the Revised Statutes, was made applicable to this corporation. Having thus ascertained the legislative intention, we must give it effect, and for our conclusion the case of People ex rel. Furman v. Clute ( 50 N.Y. 451), is sufficient authority.
The judgment should be affirmed, but without costs.
All concur.
Judgment affirmed.