(dissenting.) • I cannot concur in the conclusion reached by a majority of the court for a reversal of the decree of the surrogate of Cattaraugus county. The surrogate admitted the will to probate as a will of personal estate, except as to the eighth clause thereof, and adjudged that clause void for uncertainty. The eighth item is as follows: “lam desirous of leaving some of my estate to aid in carrying on the work of the Christian ministry, and to uphold the doctrine and faith of the Bible, and to aid in extending the Christian religion in the world through the instrumentality of the preaching of the gospel of Christ; and, desirous of promoting these purposes", I do hereby authorize and empower my executor hereinafter named to expend, through the agency of the Baptist Church and its various societies, missionary and educational, or in such other way, through the said church or its organizations, as shall be deemed best likely to promote these purposes, such sum as lie may deem best, not to exceed one thousand dollars; and, in order that my executor may be enabled to do so without hindrance, I give and bequeath to him the said sum of one thousand dollars, and the same is to him, and his heirs and assigns, forever, for the uses and purposes before stated; and I reiv on him to carry out the wishes and purposes that I have hereinbefore indicated, and that those interested in my estate might co-operate in car*25rying on the work that I, by this bequest, desire to promote.” As was held by the surrogate, it is impossible to determine who or what is the legatee named in this item of the will. The Baptist Church is not a corporation, but the religious and charitable purposes expressed by the testatrix were to be accomplished only through the agency of the Baptist Church and its various missionary, charitable, and educational societies. This provision, in my judgment, falls directly within the condemnation of the decision given in Levy v. Levy, 83 N. Y. 97, and many succeeding cases, particularly in the case of Prichard v. Thompson, 95 N. Y. 76. It is claimed, however, that the last clauses of this item of the will constitute an absolute gift to the executor, and that consequently the bequest is valid. In my judgment, an answer to this contention is found in the language of the will itself, by which the pervading purpose of the testatrix was to give the sum of $1,000 to benevolent, charitable, and missionary purposes, and that the words of the bequest to the executor, and his heirs and assigns, were used simply to overcome the otherwise legal objection which could be made to any effort to carry out such illegal intention. The language of the testatrix is, “and, in order that my executor may be enabled to do so without hindrance, I give and bequeath to him the said sum of one thousand dollars, and the same is to him, and bis heirs and assigns, forever, for the uses and purposes before stated.” There is in fact no absolute gift to the executor; “the uses and purposes before stated” are the uses and purposes which the law uncompromisingly says are not of practical attainment. The legatee could not take this bequest honestly without making an effort to carry out the intention of the testatrix. As was said by Judge Finch in Re O’Hara, 95 N. Y. 414, “it does not need that the absolute legatees repudiate their promise, for, if ever so honorably willing to perform it, they cannot do so without setting at defiance and secretly evading the law and general policy of the state. The alternative is plain, and offers no chance of escape. If the legatees repudiate their obligations, that is a fraud upon the dead woman, who acted upon the faith of their promise. If they are willing to perform, they cannot perform, except by a fraud upon the law to which they and the testatrix are equally parties.” “If in the one the fraud grows out of a refusal to perform, which would be the voluntary act of the legatee repudiating his promise, and so an actual fraud, in the other it grows out of the impossibility of performance, except in defiance of the public law, which is legally a fraud. In neither event can the legatee honestly hold. In both, either fraud triumphs, or equity defeats it through the operation of a trust, and protects those j ustly entitled. ” Again, the learned judge says at page 420: “We have thus an important question, squarely presented. If equity will not touch this devise by putting a trust for the heirs at law and next of kin upon the fund in the hands of these legatees, the road to an evasion of our statutes, and to the temptations of necessity or greed, will be left wide open.” In my judgment, the case before us is much stronger against the validity of this item of the will than was the case arising under the will of O’Hara. In the O'Hara Case the will upon its face was valid; but the testatrix, by a separate writing, requested that the legatees should not take in their own right, and she relied upon Jhem to carry out her illegal intentions. In the case before us the illegality of the bequest, the unlawful intention of the testatrix, is plainly seen by the terms of the will itself. I think the decree was right, and that it should be affirmed.
Treating this part of the will as a gift to benevolent, charitable, and missionary purposes, there is another reason why the same must be deemed to be absolutely void, irrespective of the proposition that the beneficiary named therein was not attainable; and that is the fact that the will was not executed more than two months before the death of the testatrix. She made the will the 20th day of May, 1890; she died in the month of June in that year, the *26precise date thereof not appearing anywhere in the case, the surrogate in his decision finding that she died at the time named in the petition for letters testamentary, and the petition fails to give the day of the month of June on which she died. But it clearly appears that not two months elapsed between the making of the will and her death; so that under the statute, (chapter 319, Laws 1848, 1 Birdseye, Rev. St. 262,) which invalidates bequests and devises to benevolent, charitable, scientific, and missionary societies, made within two months before the death of the testator, the attempted bequest became wholly inoperative. In my judgment, the decree appealed from should be affirmed.