Dissenting Opinion by
Mr. Justice Mitchell:I am unable to concur in this judgment. It is conceded that it cannot be sustained on the opinion of the learned court below. The two wills cannot stand together, and the prior one was therefore revoked. The mere fact of the identity of the bequest in contention here with that in the codicil of 1888, will not save the latter, nor give it a present standing as of the date when it was written. The codicil was revoked with the rest of the will, and the bequest must stand or fall with the will of 1892. As a part of that, it is clearly in violation of the act of 1855. Such I understand to be the opinion of the court.
But it is thought that the bequest can be sustained in equity, as. a compliance with a moral obligation to pay the consideration on which the testatrix received certain property under her sister-in-law’s will. This is putting it in the strongest possible way, a way'that I do not think the evidence justifies, and that I could not concede except as a mere step in the argument. But so conceding it, the conclusion does not seem to me to follow, because the statute plainly and peremptorily prohibits the payment of moral obligations in that way. It is probable that very few bequests are made to churches or religious uses except under a feeling of moral obligation for benefits received, either spiritual or temporal or both. The law recognizes such bequests as valid, but requires them to be made when the judgment is clear, and the obligation is not sharpened or exaggerated by the terrors of impending death. To allow such a *344bequest, made within the prohibited time, to be sustained by calling it an obligation which equity would have enforced, is simply to evade the statute. I do not understand that equity, even under the benign administration of the longest footed chancellor, undertakes to enforce moral obligations in the length and breadth of the Golden Rule, and it is important that we should keep its boundaries carefully marked. The bequest of Prudence Hoffner to the church was either a voluntary gift, or the performance of a legal obligation. It was put in the form of a gift, and in that form it was peremptorily made void by statute. If it was to be enforced as an obligation, the church should be required to file its bill, prove the consideration, the contract or trust, and the failure to perform, as in other cases. Then we should have the case freed from the confusion of moral and legal obligations, and without the danger of sanctioning a violation of the statute under the guise of enforcing a duty.
I am therefore of opinion that the bequest, at least as to the surplus income going to the church after maintenance of the burial lot, was void under the act of 1855. Whether any part of it was valid under the act of May 26, 1891, P. L. 119, I express no opinion about, as my brethren have not thought the act of 1891 applicable to the case.