In re the Estate of Fitzsimmons, 1 Mills Surr. 374

In re the Estate of Fitzsimmons

1 Mills Surr. 374 | N.Y. Sur. Ct. | 1899

Varnum, S.

The testator herein died five days after making his will, under the terms of which the bulk of his estate is given to various charitable and religious institutions. Upon a final accounting by the executrix the court is asked by the next of kin of decedent to pass upon the validity of these bequests-, so that proper distribution may be directed in the decree to be *375■entered. The principal legatee under the will is the College •of St. Francis, Xavier. It is contended that the legacies to this institution are void by reason of section 6 of the act of 1848 (chap. 319, Laws of 1848), which provides that no he-quest to. a religious corporation shall be valid in any will which ■shall not have been executed at least two months before the death of the testator. This act is not a part of the General Laws, ■and hence, in the absence of express words, the restrictions it imposes are not binding on corporations not organized thereunder. Hollis v. Drew Theological Seminary, 95 N. Y. 166; Matter of Hamm, 28 Misc. 307; Suit. Decs. 1899, p. 402. The institution in question was organized under the University Act of 1813. . Its charter was amended by chapter 146 of the Laws of 1870, whereby the college was authorized to take real •and personal property “ subject to all provisions of law relating to devises and bequests by last will and testament,” providing its annual income should not exceed a stated amount. The identical language in which the condition quoted is phrased was construed in the case of Kerr v. Dougherty, 79 N. Y. 327, which held that these words subjected the corporation to the restrictions imposed by section 6 of the act of 1848-, since the latter was a provision of law relating to devises and bequests. Hence, I am constrained to hold that the various legacies given to the College of St. Francis Xavier and to its various branches -or departments are invalid. The bequests to the Society of St. Vincent de Paul are valid, since the special charter of this corporation does not subject it to the two months’ provision. This was so held in Estate of Walsh, Surr. Decs. 1897, p. 669. By the sixth clause of the will $1,000 is given to the “ College ■of the Sacred Heart of Jesus, situated at' Woodstock, Howard county, in the State of Maryland.” Satisfactory proof has been presented to show that this title is a misnomer, and that the institution intended to be affected by the testator’s bounty 'is The Woodstock College of Baltimore county, a corporation *376organized by a special act of the Legislature of Maryland. It is urged that under the laws of that State this legatee cannot take. By the thirty-eighth article of the Declaration of Bights in Maryland, bequests to religious orders are void “ without the prior or subsequent sanction of the Legislature.” The construction placed upon this article is that a reasonable time should be allowed to persons falling under its restrictions to obtain such legislative sanction. England v. Vestry of Prince George’s Parish, 53 Md. 466, 472; Church Extension of M. E. Church v. Smith, 56 id. 362. The legatee states that application will be made at the next session of the Maryland Legislature to procure permission to take the gift under the will, and it is, therefore, unnecessary to go into the question of whether or not Woodstock College is a religious body under the article above cited. The decree to be entered should provide that this legacy be held by the accountant to await any action that the next session of the Legislature of Maryland may take concerning it. The legacy to the Society of the Holy Childhood is not void by reason of the fact that this institution is unincorporated. I am of the opinion that under the provisions of chapter 701 of the Laws of 1893', this fact no longer prohibits a religious or charitable body from taking. See Matter of Fitzsimons, 29 Misc. 204; Surr. Decs. 1899, p. 577. It seems that the remaining domestic corporations mentioned in the will were either organized under the act of 1848 or made subject to' its restrictions, and hence the bequests to them must be held to be ineffective. The legacy to St. Joseph’s Society for Colored Missions is conceded to be valid. Submit decree in accordance with this decision.

Decreed accordingly.