William H. Hollis, of the city of Brooklyn, Kings county, N. Y., on the 13th of December, 188U, made his last will and testament, and died on the 7th of February, 1881.
The testator was a resident of Kings county when the will was executed and when he died. By the will he bequeathed more than half of his estate to the Wesleyan University, a Connecticut corporation formed for scientific and educational purposes ; to the Drew Theological Seminary, a New Jersey corporation, and to the Methodist Episcopal Church of Orient, Suffolk county, N. Y. Is the will valid notwithstanding it was not executed at least two months before the death of the testator ? The legislature, by chapter 319 of the Laws of 1848, passed “An act fbr the incorporation of • benevolent, charitable, scientific and missionary societies.” Section 6 of- this act provides as follows:
■ “Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars ; provided no person leaving a wife or child or parent, shall devise or bequeath to such institution or corporation more than one-fourth 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 such one-fourth, and 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.”
By chapter 51, Laws of 1870, the legislature enlarged the power to form corporations under the general laws of 1848, so as to include educational and other institutions, and by the third section thereof empowered the corporations “ under said act or under this act,” to take and hold by devise and bequest, subject to the restriction upon devises and bequests contained in an act entitled “An act relating to wills, passed April 13, 1860.” The act relating to wills (chap. 360, Laws of 1860) is in these words :
“ Section 1. No persons having husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary *227society, 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 onelialf and no more).
“ Seo. 2. All laws and parts of laws inconsistent with this act are hereby repealed.”
The first case presenting facts calling for the construction of these two acts, was that of Chamberlain v. Chamberlain (43 N. Y., 425). The testator domiciled in New York, made his will December 16, 1867, and died February 10, 1868. The will gave over half of the estate to two corporations, one for the support of a college in Pennsylvania, incorporated in that State, and the' other to an academy in this State. The case was argued by able men, but the point is not presented by counsel or discussed by the court' as to the effect of the will being executed less than two months before testator’s death upon the validity of the bequest itself. The court upheld the will to the extent of one-half of the estate.
The very silence of the Court of Appeals would be a conclusive argument in favor of the will standing for one-half of this estate, but in the case of Lefevre v. Lefevre (59 N. Y., 434) these sections were again considered. The will in this case was executed but a day or two before testator’s death. The will gave one-third of the estate of testator to the Home of the Friendless in New York. The corporation designed was the American Female Guardian Society, a New York corporation, incorporated by special act in 1849; its power to take by will was subject to the same restrictions as are provided ■in the general laws for the incorporation of benevolent societies.
The same judge (Judge Allen) wrote an opinion in this case who wrote the opinion in the Chamberlain case. The coiirt disagreed with Judge Allen in his conclusions. He thought the two months restriction in section 6 of act of 1848, only applied to corporations formed under that act and that the acts of 1860, relating to wills, repealed “the last clause of that section.”
The Court of Appeals decided that the act of 1860 was not a repeal of the restriction as to two months in the act of 1848, but was in entire harmony with it. That the law of 1860 was not repugnant to the provisions that there shall be no valid devise or bequest, unless the will be made more than two months before death.
*228The question again was presented to the Court of Appeals in Kerr v. Dougherty (79 N. Y., 327).
The testator in this case died about three weeks after the will was executed. He made a bequest to a New York religious educational institution, “ The Union Theological Seminary.” This corporation was created by special act in 1839. The charter was amended in 1870, making it subject “ to all the provisions of law relating to devises and bequests by last will and testament.”
The provisions of section 6 of Law of 1848 was applied to this bequest, and it was decreed void, the court holding that the charter containing the clause subjecting it to the laws as to wills, brought it within the section in question requiring two months to elapse between the execution of a will and the testator’s death. There was another legacy to the blew York City Missionary and Tract Society, a New York corporation, and a bequest to a Pennsylvania corporation for religious uses, upon the ground that by the law of Pennsylvania there must elapse at.least one month between the execution of the will and the death of testator. A bequest is equally void when it is invalid in the State where the will is made, or in the State where it is to be administered.
The precise question presented in this case, it will be seen, has never been decided by the Court of Appeals. It is decided that the last clause of section 6 of the Laws of 1848 is not repealed. That corporations like this in question, if they were State corporations, would be included in the class of corporations described in the law of 1848. That a New York corporation is subject to this clause by being made “subject to existing laws,” and “subject to all the provisions of law relating to devises and bequests by last will and testament.” That this section in the law of 1848 is a part of existing laws relating to wills. There is no apparent reason why the rule should not be the same in all cases. If the Court of Appeals had not arrived at the conclusion that section 6 of Laws of 1848 was intended to be a general one, it could not have subjected corporations to its provisions who were simply subject to laws in reference to wills. A law referring to corporations created under the act of 1848 would in no such sense be laws relating to wills.
Judge Miller says: “ It may be added that as devises and bequests pertain to wills, it is not apparent why the , provision in *229question does not relate to them.” lie also says, that “the various acts of the legislature which have been cited would seem to indicate a general policy of the State in reference to restricting devises and bequests made to corporations of a particular class.”
The language of Judge Folgek in the opinion of the court in Lefevre v. Lefevre is not less suggestive. In speaking of this section 6 of the Laws of 1848, he uses this language: “ One restriction limits the quantity that may be taken. One the quantity that can be given. One the persons who may give.”
If the restriction reaches testator it reaches all testators.
My conclusion therefore is, that a testator cannot give more than one-half of his estate, if he leaves wife and father, and then only by will executed at least two months before his death. This conclusion renders unnecessary the points presented by the corporation appellant upon this appeal.
The judgment and order granting allowances should. be reversed and a new trial granted, costs to abide event.
Dykman, J., concurred.