PARKER, Ch. J.

The testator attempted to dispose of his entire estate by will, but the attempt was unsuccessful because having a wife, he nevertheless undertook to give the whole of it to two charitable corporations, after providing for the payment of a few small legacies, thus offending against the provisions of chapter 360 of the Laws of 1860, which in effect provides that such a devise is valid as to one-half of the estate and no more. Who shall have the one-half of the estate undisposed of, the heirs at law or the next of kin, is the question presented for answer.

Physically regarded, such estate is land, and were it to be treated for all purposes as its form would suggest, the right of the heirs at law to take it would not be challenged. The next of kin, however, insist that by the will all of the real estate was converted into personalty, and while it still bears the outward form of land, yet, as equity treats that as done which should have been done, the conversion, from the standpoint of a court of equity, must be deemed to have taken place at the time of the death of the testator, and, hence, for all the purposes of the will it was personalty when testator died, and such of it as was undisposed of passed under the Statute of Distribution to the next of kin.

But this claim assumes, necessarily, that the will, by valid provisions, commanded that all of the estate be converted into personalty, the land of which the testator died intestate as well as the other. That he intended to have it all turned into cash there can be no doubt, but so too did he intend to give it all when so converted to the two charitable institutions, and the conversion was directed for that purpose; but his plan offended in part against the law of the state, and as to such part the legal result is the same as if he had not made any attempt to dispose of that part of his estate, for as to that he died intestate. His primary purpose was to divide the bulk of his estate between two charitable corporations, and his direction to sell the real estate and pay the proceeds over to such corporations in equal proportions was merely an incident to a proper division of the estate, a method selected by him for making those devises effectual. And in so far as his intention to dispose of his estate failed for want of power, it would seem to be a necessary and logical result that the character of the estate undisposed of would be unaffected by his futile attempt at its disposition.

But the question is no longer open for discussion in this court, in view of the decisions in Chamberlain v. Chamberlain ( 43 N.Y. 431), and Chamberlain v. Taylor ( 105 N.Y. 185), in each of which cases, as in this, the testator's attempt to divide his estate among charitable corporations was prevented as to one-half by the act of 1860.

In Chamberlain v. Chamberlain the validity of the trust attempted to be created was considered at length in the opinion of ALLEN, J., and it was said to be ineffectual as to one-half of the residuary estate, which was held to have descended to the heirs at law and next of kin. And the remittitur transmitted in pursuance of such decision determined that the real estate descended to the testator's heirs at law subject to the execution of the valid provisions of the will relating to the same, and the personal estate to his next of kin after the payment of the debts of the testator and the execution of the effectual provisions of the will.

This case was considered in Chamberlain v. Taylor ( supra), and as to the question now presented it was held under the doctrine of stare decisis to foreclose all parties from its further discussion. While other questions were discussed in the opinion, the court said that the decision therein might have rested altogether on the decision in Chamberlain v. Chamberlain.

Earlier cases in this state tend in the same direction. ( Hawley v. James, 7 Paige, 213; De Peyster v. Clendining, 8 Paige, 295; McCarty v. Terry, 7 Lans. 236; Giraud v. Giraud, 58 How. Pr. 175; Betts v. Betts, 4 Abb. [N.C.] 419.)

In the Giraud case the court said, "the positive direction to sell amounted to an equitable conversion of the real estate into personalty, but it is to be borne in mind that such conversion was for the valid objects of the will and when the object fails, the conversion — to that extent — also fails."

Thus it appears that the courts below rightly applied the principle established by the cases cited, viz.: That where the conversion of real estate into personalty is an incident to the devise and for the purpose of making it conveniently workable, then, as to so much of the estate as the devise fails to dispose of, because in violation of law, the conversion also fails. The real estate may be so situated as to require a sale of all of it in order to execute the valid portions of the will, and thus it will be turned into money in fact, but for the purposes of disposition under the statute as intestate property, it will retain its character as real estate.

The contention of counsel that the testator attempted to create an express trust as to all of his residuary estate need not be considered, for if we should agree with him it would not avail him, for the statute prohibits a devise by a person situated as this testator was, in trust or otherwise, for the benefit of charity of more than one-half of his estate, and hence, a devise to the executors in trust for such purpose would have been wholly void as to the one-half thereof.

The judgment should be affirmed, with costs.

GRAY, O'BRIEN, MARTIN, VANN, CULLEN and WERNER, JJ., concur.

Judgment affirmed.