#### In the Matter *of the*Probate of the Last Will and Testament of Benjamin A. Kavanagh, Deceased.

*(Supreme Court, General Term, First Department,*

*Filed May 24, 1889.)*

Will—Construction of—When devise inoperative—Laws 1866, chap. 201-—Title 7, chap. 18, part 1, R. S. (5th ed.).

A testator, by his will, after directing the payment of various legacies to his relatives, including his mother, devised two-thirds of all the rest of his property to the “Little Sisters of the Poor in the city of New York,” incorporated under and by virtue of Laws 1866. chap. 201. The will was. executed less than two months before the time of the testator’s decease. *Held,*that the devise is within the prohibition of title 7, chapter 18, part 1, of the Revised Statutes, and was inoperative and unlawful.

Appeal by the Sisters of the Poor of St'. Francis, from a decree of the surrogate, rejecting a portion of the will of the testator.

*George Bliss,*for app’lt; *George W. Carr and Daniel B, Hayes,*for resp’t.

*239Daniels, J.

The testator made and executed his will on the 18th of August, 1887, and died on the 29th of the following month. He left him surviving, his mother, Margaret Kavanagh of Liscarroll, Cork, Ireland. By the 15 th paragraph of his will, after directing the payment of various legacies to his relatives, including his mother, and to other parties, he gave, devised and bequeathed two-thirds of all the rest, residue and remainder of his property to the Little Sisters of the Poor in the city of Hew York, directing them to divide it equally between the houses in Seventieth and One Hundred and Sixth streets in said city.

These sisters were incorporated under and by virtue of chapter 201, of the Laws of 1866. By section 7 of this act, the corporation was made subject to the provisions of title 7, part 1, chapter 18, of the Revised Statutes, in relation to devises, or bequests, by will, But, as the Revised Statutes were enacted by the legislature, they contained no title 7, chapter 18, part 1. Chapter 18 of part 1, as it was enacted, included no more than four titles. But after the enactment of the Revised Statutes, compilations were made of the statutes, and published as the Revised Statutes of the state. The second and third of these were under the sanction of the revisers themselves, and published, with the additions and changes made in the general laws by the legislature, in January, 1836, and 1846. After that, compilations of the general statutes, including so much of the Revised Statutes as remained unchanged, were also published as the Revised Statutes of the state. As these additions have in this manner been published, they have been mentioned, cited and referred to, as the Revised Statutes of the state. In these compilations, additional titles have been made of the general laws enacted by the legislature of the state, and in this manner, chapter 319, of the Laws of-1848, and the acts amending it, providing for the incorporation of benevolent, charitable, scientific and missionary societies, were added, as title 7, of chapter 18, of part 1, of the Revised Statutes. In this manner, this act, with its amendments, was incorporated in the compilation of 1859, which preceded the enactment of the statute incorporating the appellant. From the language employed in section 7 of the act incorporating the appellant, the intention of the legislature is clearly evinced to refer to the preceding law relating to devises or bequests by will. This act of 1848, with its amendments, was such a law, and it was contained at the time of the enactment of chapter 201, of the Laws of 1866, in the compilations published as the fifth edition of the Revised Statutes of the state, and was denominated title 7, of chapter 18, of the first part of these statutes; it is to *240be presumed that this was the act in this manner referred to, and to which the appellants were intended to be brought into subjection.

This statute in this manner incorporated and published, in this compilation called the Revised Statutes, has, by its sixth section, declared that, “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 ner estate after the payment of his or her debts, and such devise and 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. There was no other provision of the law so far answering the description contained in section 7 of chapter 201 of the Laws of 1866, as to be brought within the language, or lefercnce, contained in this section of the act. And as the compilation then existing and used was called and referred to as the Revised Statutes, and the law of 1848, with its amendments, was contained therein, as title 7, of chapter 18, part, 1, the inference is irresistible that this section 6 is what the legislature intended that the appellant should be subjected to by the reference contained in section 7 of the act of 1866. And that rendered this bequest contained in the fifteenth paragraph of the testator’s will invalid, as the will was executed less than two months before the time of his decease.

The surrogate was right in the construction of the law adopted by him, and which resulted in the decree excluding this fifteenth paragraph' from the will and holding it to be inoperative and unlawful.

The decree should be affirmed, but under the circumstances it should be without costs.

Van Brunt, Oh. J., and Brady, J., concur.