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36
SMITHSONIAN INSTITUTION
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appointed. The time when the gift is to take effect is the death of the wife. We say that at the death of Mrs. Andrews there was no corporation to take.

The court below say that Mr. Andrews' intention was that the corporation should take whenever it was formed, whether at the death of the wife or sometime after the death of the wife. As a matter of fact this Ohio corporation was created more than three years after the death of Mrs. Andrews. The court say that the provision in the will that the corporation be formed during the lifetime of the wife and her brother, or the survivor of them, means that the corporation to which he makes the gift may be formed after the death of the wife. Therefore, that the gift may take effect after the death of the wife.

To this we reply that the phrase respecting the lifetime is inserted to guard against the effect of the statute restraining alienation, and that its language does not modify the terms of the gift in respect to the time when the gift is to take effect.

The point is a technical one, with the logic on our side, but the court may by sheer force overrule us.

II.

The next point, and one upon which we rely with a good deal of confidence is that the statute of 1860 of New York says that "no person having a husband, wife, child or parent shall by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society,

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