§ 18. Devise or bequest to certain corporations. No person leaving a wife, or child, or parent shall devise or bequeath to any institution or corporation formed under laws of eighteen hundred and sixty-five, chapter three hundred and sixtyeight; laws of eighteen hundred and seventy-five, chapter two hundred and sixty-seven; laws of eighteen hundred and seventy-five, chapter three hundred and forty-three; or laws of eighteen hundred and eighty-six, chapter two hundred and thirty-six, more than one-fourth of his or her estate after 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.

Formerly 6 of chapter 368, Laws of 1865, entitled "An act for the incorporation of societies or clubs for certain social and recreative purposes." Same provision § 7, chap. 267, Laws of 1875; § 5, chap. 343, Laws of 1875; chap. 236, Laws of 1886, acts for incorporating clubs, libraries, etc. etc.:

§ 6 (Chap. 368, L. 1865). 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 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.2

Same provision in chap. 267, Laws of 1875, entitled "An act for the incorporation of societies or clubs for certain lawful purposes."

§ 7 (chap. 267, L. 1875). 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 payment of his or her debts, and such devise or bequest shall be valid to the

2 Repealed 310, Membership Corporations Law and 130 Decedent. Estate law.

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.3

Same provision in § 5, chap. 343, Laws of 1875, entitled "An act for the incorporation of library societies." 4

Same provision in § 7, chap. 236, Laws of 1886, entitled “An act for the incorporation of political clubs."5

Comment. Section 18 of the Decedent Estate Law is the survival of the statutes set out above. No new corporations can in future be formed under those acts, as they are all now repealed. But as the Board of Consolidation say, in substance, in their note to this section, the acts, set out above, contain an important limitation on all devises or bequests to corporations already formed and existing under those acts. Section 18 of the Decedent Estate Law was, therefore, necessary to express and continue the existing limitations indicated.

A precisely corresponding provision to section 18, Decedent Estate Law, is now contained in the Consolidated Membership Corporation Law.8

With the exception that the amount is made one-fourth and not one-half, the provisions of section 18, Decedent Estate Law, correspond with the provisions contained in section 17, Decedent Estate Law. The construction accorded to section 17 will, therefore, apply to section 18, and the citations of authority given under section 17 need not be here repeated.

Repealed 310, Membership Corporations Law and § 130, Decedent Estate Law.

4 Repealed § 310, Membership Corporations Law and § 130, Decedent Estate Law.

Repealed § 310, Membership Co1

porations Law and § 130, Decedent Estate Law.

6 § 310, Membership Corporations Law; 130, Decedent Estate Law. 7 Note 4, Appendix I, infra.

8 §§ 18, and 19, Membership Corporations Law.

§ 19. Devise or bequest to certain benevolent, charitable and scientific corporations. No person leaving a wife, or child, or parent, shall devise or bequeath to any institution or corporation formed under laws of eighteen hundred and forty-eight, chapter three hundred and nineteen, more than one-half 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-half, 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.

Formerly § 6, chap. 319, Laws of 1848, as amended by § 1, chap. 623, Laws of 1903:

$6 (chap. 319, L. 1848). 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.9

In 1881 the legislature enacted chapter 641 of that year as follows: AN ACT relating to the right of benevolent, charitable, religious, scientific and missionary societies to take and hold real and personal estate. Passed, July 13, 1881.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. All corporations already formed or which hereafter may be formed under and in pursuance of chapter three hundred and nineteen of the laws of eighteen hundred and forty-eight, being "An act for the incorporation of benevolent, charitable, scientific and missionary societies," and the several acts amendatory thereof, and their successors, by their corporate name, shall in law be capable of taking, receiving, purchasing, and holding real estate for the purposes of their corporation to an amount not exceeding the sum of two hundred thousand dollars in value, and personal estate for like purposes to an amount not exceeding the sum of two hundred

9 Amended by chap. 623, Laws of 1905, and repealed by § 130, Dece

dent Estate Law and § 310, Membership Corporations Law.

thousand dollars in value, but the clear annual income of such real and personal estate shall not exceed the sum of fifty thousand dollars, subject, however, to the restrictions upon devises and bequests contained in an act entitled "An act relating to wills," passed April thirteen, eighteen hundred and sixty.

§ 2. This act shall take effect immediately.10

Section 1 (chap. 623, L. 1903). Section six of chapter three hundred and nineteen of the laws of eighteen hundred and forty-eight, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies," is hereby amended to read as follows:

§ 6. 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; provided, no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-half 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-half, 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.11

Comment. The reader will observe at a glance that the acts now set out in section 19 of the Decedent Estate Law, do apply expressly only to the corporations formed under chapter 319, Laws of 1848, entitled "An act for the incorporation of benevolent, charitable, scientific and missionary societies." It will also be observed that devises and bequests to any such corporations must be contained in a will made and executed at least two months before the death of testator. As a very large number of the existing charitable foundations of this State have been incorporated under the act of 1848, it is apparent that these particular limitations on devises and bequests to them are very important in the law of this State.12 The enactment of chapter 623, Laws of 190313 made it very clear that the act of 1860 (chap. 3601) was not intended to repeal any part of the act of 1848.15

10 Repealed by $ 147, chap. 559, Laws of 1895. See § 310, Membership Corporations Law (chap. 35, Consol. Laws of 1909) and § 12, General Corporation Law (chap. 23, Consol. Laws of 1909).

11 Repealed § 310, Membership Corporations Law; § 130, Decedent Estate Law.

12 See for example, Matter of Pearson, 52 Misc. 273. 13 Supra, p. 98.

14 17, Decedent Estate Law. 15 Now 8 19, Decedent Estate Law; Pearson v. Collins, 113 App. Div. 657.

Present Disposition of Substance of Chapter 319, Laws 1848. The Membership Corporations Law continues in force the provisions contained in the first portion of section 6, chapter 319, Laws of 1848, to the effect, that any charitable, scientific or missionary corporation formed under chapter 319, Laws of 1848, shall be capable of taking, holding or receiving any property real or personal by devise or bequest; but subject to the provisions of this particular section 19 of the Decedent Estate Law.16 Thus a part of the act, chapter 319, Laws of 1848, is now contained in section 19 of the Membership Corporations Law, and another part, restricting the amount of the devise or bequest, in section 19 of the Decedent Estate Law.

General Restrictions on Devises and Bequests to Charity. There is also a general restriction on the power of such charitable or eleemosynary corporations to take and to hold property which at present is contained in section 12 of the General Corporation Law of 1909. It fixes a maximum (in the absence of any different special regulation) of three millions of dollars in value, or five hundred thousand dollars yearly income.17

Construction of Section 19. The reader will also observe by reference to sections 17, 18 and 19 of the Decedent Estate Law that these sections are in pari materia, and like all statutes in pari materia they are to be construed together whenever two or all are relevant to the same devise or bequest. The provisions of these sections while in pari materia are yet different and they ought to be soon revised and made uniform and general in application. In some cases at present under these sections a testator may leave one-half of his estate to certain charitable uses; in other like cases only a quarter. In some cases the will to charity must be made two months before decease of testator; in other cases there is no

16 § 19, Membership Corporation Law.

17 § 12, chap. 23, Consol. Laws of 1909; Matter of McGraw, III N.

Y. 66, 84; Hornberger v. Miller, 28 App. Div. 199; Matter of Lampson, 33 id. 49, 52.