In the Matter of the Judicial Settlement of the Account of the New York Life Insurance and Trust Company, as Executor of William Alexander Smith, Deceased. New York Bible and Common Prayer Book Society, Legatee, Appellant; Dinah W. Smith and Others, Respondents

In the Matter of the Judicial Settlement of the Account of the New York Life Insurance and Trust Company, as Executor of William Alexander Smith, Deceased. New York Bible and Common Prayer Book Society, Legatee, Appellant; Dinah W. Smith and Others, Respondents. Second Department, April 16, 1915. Corporations—bequest to Mew York Bible Society — death of testator within two months after making will. The Mew York Bible and Common Prayer Book Society, incorporated by special act and being expressly made subject to chapter 360 of the Laws of 1860 by act of Legislature, is not within the provisions of chapter 319 of the Laws of 1848 (Decedent Estate Law, § 19) and may take a legacy although the testator died within two months after making his will. Appeal by the New York Bible and Common Prayer Book Society from part of a decree of the Surrogate’s Court of the county of Rockland, entered in the office of said Surrogate’s Court on the 9th day of June, 1914, holding the legacy to the appellant to be invalid and void by reason of the death of the testator within two months after the making of the will. The decision was based on section 19 of the Decedent Estate Law, as it stood at the time of testator’s death, May 31, 1911. (SeeConsol. Laws, chap. 13 [Laws of 1909, chap. 18], § 19; since repealed by Laws of 1911, chap. 857; formerly Laws of 1848, chap. 319, § 6, as amd. by Laws of 1903, chap. 623.) Charles L. Jones, for the appellant. Francis C. Huntington, for the respondents Langdon C. Stewardson and Clara Hunter Stewardson. William R. Maloney [Edward B. Boise with him on the brief], for the respondents Dinah W. Smith and Robert William Hobart Smith. Emmet & Parish, for the respondent New York Life Insurance and Trust Company, as executor, etc. [MAJORITY — Carr, J.:] Carr, J.: 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.