152 N.Y.S. 881 | N.Y. App. Div. | 1915
This court is of opinion that the appellant has legal capacity to take the legacy in question. It was not incorporated under chapter 819 of the Laws of 1848, but under a special act (Laws of 1841, chap. 118). While chapter 57 of the Laws of 1864, which amended the original charter, made the corporation subject expressly to chapter 360 of the Laws of 1860, it did not, ex proprio vigore, make it subject to the still existing provisions of the act of 1848. The learned surrogate seems to have acted in accordance with what is contended to have been held in Lefevre v. Lefevre (59 N. Y. 434). The question presented on this appeal was not before the court in the Lefevre case. There a charitable corporation had been made by statute (Laws of 1849, chap. 244, § 4) expressly subject to certain provisions of the act of 1848, and it was held that the act of 1860 did not repeal any provisions of the earlier act which were not inconsistent with the later act. While both acts could stand together so far as their provisions were consistent and harmonious, yet both acts did not lose their separate identity and become so merged that when the Legislature, as in this case, in express terms made the appellant subject to the act of 1860, which has been re-enacted by section 17 of the Decedent Estate Law, it intended necessarily, by implication, to make it subject also to an earlier statute, to which it made no reference.
The decree of the Surrogate’s Court of Eockland county, so far as appealed from, is reversed, with costs to the appellant payable out of the estate, and the matter is remitted to that court to proceed therewith in accordance with this opinion.
Jenks, P. J., Burr, Stapleton and Putnam, JJ., concurred.
Decree of the Surrogate’s Court of Rockland county, in so far as appealed from, reversed, with costs to the appellant payable out of the estate, and matter remitted to said court to proceed therewith in accordance with opinion.