Certain other questions are raised by the complaint and passed upon by the Special Term, but not noticed by the General Term; and perhaps it was not needed that they should be. Having concluded that the assets here should be remitted to the State of California to be distributed in accordance with the law there, the solution of those questions for the practical guidance of those interested, is of necessity to be left to the courts of that State.

The order of the General Term should be affirmed and final judgment for respondents in pursuance of stipulation.

Order affirmed, and judgment accordingly.

White V. Howard

46 New York, 144. - 1871.

Action for the construction of a will.

Grover, J. - The testator, William Bostwick, at the time of his death, in April, 1863, was a resident of the State of Connecticut, and had been for a number of years prior thereto. The validity of the bequests of his personal property, and all questions of succession thereto, or rights therein, must be determined under the laws of that State, and by the courts of that State, when the property, or those having the possession and control thereof, are within its jurisdiction. Parson v. Lyman, 20 N. Y. 103; Moultrie v. Hunt, 23 Id. 394; Story on Conflict of Laws, sec. 468. In addition to his personal property and real estate situated in Connecticut, the testator, at the time of his decease, was seized of real estate situated in the city of New York, of great value. The validity of the devise of the latter property, and all questions relating to the title, must be determined by the laws and courts of New York, irrespective of the domicile of the testator. Hosford v. Nichols, 1 Paige, 220; Story, Conflict of Laws, secs. 424, 428, 445; 4 Kent's Com. 513. The testator, after giving several legacies by the previous clauses of his will, by the seventh clause gave all the rest, residue and remainder of his property, both real and personal, wherever situated, to Henry White, John P. Crosby, and Pelatiah Perit and the survivor of them, as joint tenants, in fee simple, upon certain specified trusts in favor of his daughter Frances, an infant, and her children, should she leave any her surviving, and the descendants of any child, if any, whose parent died during the life of his daughter and her husband, if any, surviving her; and upon the further trust, in case of the death of his daughter, leaving no child or descendant of any child, or husband, her surviving (an event which has actually happened), to pay certain specified legacies to various charitable societies, and then divide whatever remained of the trust estate equally between the following six societies, namely: The Southern Aid Society; the American Tract Society; the American and Foreign Christian Union; the American Colonization Society; the Trustees of the Board of Domestic Missions of the General Assembly of the Presbyterian Church of the United States; and the Board of Foreign Missions of the same church. The personal estate was more than sufficient to pay all the specific legacies given by the will. The first question to be determined is, whether any or all of these societies had capacity to take real estate in New York by devise. As several of the societies claim a capacity so to take, upon grounds and principles different from others, it will be necessary to examine the question as to several separately. As the Southern Aid Society differs in this respect materially from all the others, it will be proper to consider the question as to that society first. This was a voluntary, unincorporated charitable association, engaged in aiding indigent evangelical churches and ministers in the southern section of the Union, prior to 1861. Whether it continued in existence as a society after that period, and to the time of the death of the testator, and until its incorporation under the general statute of the State, was a controverted question upon the trial; but the justice who tried the cause found, in substance, that it did so continue. That finding is con-clusive upon this court. Avoluntary association for charitable purposes cannot, under the law of this State, take a legacy given to it. Sherwood v. American Bible Society and Others, 1 Keyes, 561. If incapable of taking a legacy, it is clear that it has no capacity to take by devise. * * * The American Colonization Society claims the one-sixth of the property under the will. This society was incorporated in 1836, by an act of the Legislature of Maryland, by which it was authorized to take lands by devise, and to sell and dispose of such lands as the society should determine to be most conducive to the objects of the society, namely, the colonizing of the free people of color of this country in Africa.

The principal question to be determined in regard to this society is, whether it can take land in this State by devise. We have already seen that this question must be determined solely by the law of this State. That it can take personal property by bequest has been determined by this court. Sherwood v. The American Bible Society and Others, 1 Keyes, 561. By the statute of this State concerning wills, passed in 1813 (I R. L. 364), all persons (other than bodies politic and corporate) were permitted to take lands by devise and might take to or for any lawful purpose whatsoever, without restraint. The exclusion of bodies politic and corporate from taking lands by devise was the law of the State until the Revised Statutes took effect, and applied to all corporations of our own and other States and countries, unless the Legislature, for special reasons, authorized a particular corporation so to take. This was the settled policy of the State. Such being the law and policy of the State at the time of the passage of the Revised Statutes, we find, that by the first section of the statute of wills, therein contained (2 R. S. 57), all persons, with the exceptions therein specified, were empowered to dispose of their real estate by will. Section two of the act defines real estate for this purpose. Section three provides, that such devise may be made to every person capable by law of holding real estate; but no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise. What modification of the law is herein indicated? By the act of 1813, bodies politic and corporate are excepted from the persons who may take by devise. By section three of the present statute of wills, all persons capable by law to hold real estate are authorized so to take, but providing that no devise to a corporation shall be valid, unless such corporation, by its charter or by statute, be expressly authorized so to take. Had the Legislature, while the act of 1813 was in force, granted a charter to a corporation and had therein enacted that such corporation might take real estate by devise, can there be a doubt that such a provision would have effected a repeal of the act as to such corporation? Or had the Legislature, by a subsequent statute, enacted that one or any number of designated existing corporations, might take land by devise, such act would, as to such corporation, have repealed the exception in the act of 1813 by implication. Section three of the present statute has the same effect precisely upon all corporations not expressly authorized by charter or statute to take by devise, as the exception in the act of 1813 had upon all existing corporations, and all thereafter created, unless the latter were expressly authorized by their charter to take; and we have seen that, as to both classes, a subsequent statute, expressly authorizing any designated corporations to take land under a will, would, by implication, have repealed the section as to them. The only modification of the law intended by the change in section three was to save the right of existing corporations, authorized by their charter or statute, to take by devise, if any such there were; for those incorporated subsequent to its passage were as effectually deprived thereby of the capacity to take by devise as those incorporated subsequent to the act of 1813 were by the exception. Neither could take, unless expressly authorized by statute or charter, in which event both could take, unless some distinction exists between a statute and charter of a corporation in this respect, as used in the section. That the authority conferred by statute referred to in section three means a statute of this State only is clear. That a statute of another State, conferring power upon a New York corporation to take land by devise, would be effectual to enable it so to take in the State passing it, is clear; but it is equally plain, that it could not affect its capacity to take land located in New York by devise. This shows that the word statute as used in section three means a statute of New York. It will hardly be insisted that a statute of another State, conferring power upon a corporation created by itself, to take land by devise in New York, will enable it so to take, while a similar statute conferring the same power upon a New York corporation will have no such effect. But it is claimed that, by the true construction of section 3, power is given to all corporations, whose charters authorize them to take, by devise, to take in that manner in this State, irrespective of the government from which the charter is obtained. In other words, that section 3 authorizes all corporations to take lands in this State under a will, whose charters confer a capacity so to take. Creating or chartering corporations involves an exercise of the legislative power. They may be created by a particular statute, granting the charter or organized by virtue of general statute prescribing the mode, specifying the powers and privileges to be enjoyed. In either mode the corporation is, in a legal sense created by statute; and where section three provides that no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise, it is equally clear that such charters only were intended as were granted by a statute of this State, or organized under a general statute of the State, as it is that by the words, by statute, a statute of the State was intended. Any other construction would work a complete revolution of the policy of the State. That policy, as indicated by its whole legislation, is to exclude corporations generally from taking by devise. The Legislature at all times have possessed the power to except such corporations as it deemed proper from its operations; and of late years have exercised it with great liberality in favor of corporations organized for charitable purposes. But there is no indication of a design to abandon the general policy of the State by permitting other governments to determine what corporations might take and hold lands in this State by devise, under the construction contended for by the counsel for the colonization society. Any corporation, to which the privilege of taking land by devise was refused by our Legislature, might acquire that privilege by procuring and accepting a charter from another State conferring it. This would defeat the plain intention of section 3, which was to exclude all corporations from that right, except such as our Legislature permitted for special reasons to enjoy it. It follows that the colonization society can take no interest in the New York real estate under the will of the testator. * * *