Opinion of the Court, per EARL, J. The question is whether the accumulation directed by the codicil of this will was for the benefit of the plaintiff, a minor, within the meaning of these provisions. If it was not, then it was invalid. The case of Pray v. Hegeman (92 N. Y. 508) is an authority controlling the decision of this case. There a certain specified portion of the income of property was required to be applied by executors to the support and education of a minor, and the balance of the income was to be added to the share producing the income and accumulated, as principal, until the minor arrived at the age of twenty-one years, after which period the whole of the income was to be applied to that child for life, and upon the death of the child was to go to other persons. In that case it was held that, under the provisions of law referred to, the accumulation was to be for the benefit of the minor solely and during his minority, and that a direction for accumulation during a minority, accompanied with a gift of the income of the accumulated fund after the expiration of the minority, to the minor for life, and of the principal, upon his death, to other persons, is void. That case is not distinguishable from this from the fact that only a specified portion of the income was to be paid to the minor during his minority, and that the undefined balance was to be accumulated. Here the direction to accumulate applies to so much of the income as in the judgment of the executors should not be needed for her support. The balance above that sum was to be accumulated and become a part of the principal, and when it thus became a part of the principal it could never again be taken therefrom and applied to her support as an infant. After it was once accumulated and added to the principal it was no longer solely for her benefit, but for the benefit as well of the persons who should succeed to the principal after her death. It was further decided in the case referred to, that in such a case the direction to accumulate must be stricken from the will so as to leave the income to go immediately to the party entitled to the life estate. The result by applying the principles of that case to this is that the plaintiff is entitled to a judgment declaring the direction to Statement of case. accumulate, contained in the codicil of this will, to be void, and that she is entitled to the whole income of the share put in trust for her. The judgment of the General Term should, therefore, be reversed, and that of the Special Term modified according to this decision, and costs of both parties should be paid out of the estate of the testator. All concur. Judgment accordingly. 95 17 WALTER P. TILLMAN, in his own right and as surviving Executor, v. ELLEN AUGUSTA DAVIS et al., Appellants, GRACE E. BIRD et al., Respondents. The word "heirs," when applied to the succession of personal estate, means "next of kin ;" the latter term refers to relatives by blood, and does not include a widow. The will of G. gave her residuary estate to her executors, in trust, with power to receive the rents and profits of the real estate, and to sell the same when and in such manner as in their discretion might seem expedient; also to convert and collect the personalty, to invest the proceeds of both, and, after setting apart out of the estate or the proceeds a sum specified, to receive the rents and income of the remainder, and apply the same to the use of the testator's husband during life. After his decease, and after the deduction of certain legacies given out of the fund, she directed the residue to be divided into certain shares or parts, each of which she gave to a beneficiary named, one part being given to D., who resided in Illinois; the clause closed thus, "the heirs of any or either of the foregoing persons who may die before my said husband to take the share which the person or persons so dying would have taken if living." D. died in the life-time of the husband, leaving a widow, but no children; he left a will, wherein he gave to his wife all his interest under the will of G.; the husband of the latter thereafter died intestate. By the laws of Illinois, in case D. had died intestate his widow would have been entitled to all of his personal estate. In an action to determine, among other things, the interests of the parties under the will of G., held, that by the terms of the will all of the real estate of the testatrix was, upon the death of her husband, to be converted into money for the purpose of distribution, and hence the whole estate at that time SICKELS VOL. L. 3 127 107 95 17 163 196 Statement of case. was to be considered as personalty; that the interest, however, of D. therein terminated upon his death, and his heirs were entitled to take by substitution; that, therefore, D. could and did convey nothing by his will; that the word "heir" referred only to relatives by blood, and did not include the widow of D.; and that, therefore, she was not entitled to any portion. The authorities in this State defining the words "heirs " and "next of kin " collated; and the English authorities and those of the other States, holding that those words included a widow, cited, and their doctrine disapproved. (Argued January 22, 1884; decided February 8, 1884.) APPEAL by defendants Ellen A. Davis, the widow, and the executors of William N. Davis, deceased, from a judgment of a Special Term of the Supreme Court, in the first judicial department, entered upon the report of a referee, a reference having been ordered by an interlocutory judgment, which, so far as appealed from, was affirmed by the General Term of said department, by order made February 2, 1883; also appeal from the order affirming said interlocutory judgment. This action was brought by plaintiff individually and as surviving executor of the will of Julia Augusta Gentil, deceased, for a settlement of his accounts as executor and trustee, a determination of the rights and interests of the parties under said will, and directions as to the distribution of the fund in his hands. The provisions of the will so far as material, and the facts so far as pertinent thereto, are set forth in the opinion. Duncan Smith for appellants. William N. Davis took, under the will of Mrs. Gentil, a vested and absolute estate, which, under his will, passed to his widow, subject to the life estate of Theodore Gentil. (2 R. S. 723, § 13; 3 id. [7th ed.] 2256, tit. 4, § 2; Everitt v. Everitt, 29 N. Y. 39, 75; Loder v. Hatfield, 71id. 92, 98; 1 Jarman on Wills, 760, 761; 1 Roper on Legacies, 83, 584, 603; 2 Jarman on Wills, 742, rule 12; Thornhill v. Hall, 2 C. & F. H. of L. 22; Kiver v. Oldfield, 4 DeG. & J. 30; Roseboom v. Roseboom, 81 N. Y. 356; Campbell v. Beaumont, 91 id. 464; Norris v. Beyea, 3 Kern. Statement of case. 273; Tyson v. Blake, 22 N. Y. 558; Bundy v. Bundy, 38 id. 410; Taggart v. Murray, 53 id. 233, Hoppock v. Tucker, 59 id. 202; 2 Jarman on Wills, 734, rule 18; 1 Redfield on Wills, 431, 451.) Under the provisions of the will, upon the established principles of equitable conversion, the whole of the remainder of Mrs. Gentil's estate subject to division upon the death of Theodore Gentil, the life tenant, is to be considered and treated as personal property. (Phelps' Executors v. Pond, 23 N. Y. 69; Stagg v. Jackson, 1 Comst. 206.) A gift, by will, of personal property to the "heirs" of any person in the event of his death is a gift to those who, if such person died intestate, would succeed to his personal property according to law, unless the "heir at law" is the person "designated" in the will to take the personal property. (Holloway v. Holloway, 5 Ves. 399; Vaux v. Henderson, 1 J. & W. 388 n.; Gittings v. McDermott, 2 M. & K. 69; Jacobs v. Jacobs, 16 Beav. 557; Low v. Smith, 2 Jur. [N. S.] part 1, p. 344; Doody v. Higgins, 2 K. & J. 729; In re Porter's Trust, 4 id. 188; In re Philp's Will, L. R., 7 Eq. Cas. 151; Finlason v. Tatlock, 9 id. 258; In re Steevens' Trust, 15 id. 110; Wingfield v. Wingfield, L. R., 9 Ch. Div. 000; Croom v. Herring, 4 Hawks, 393; Freeman v. Knight, 2 Ired. Eq. 72; Eddings v. Long, 10 Ala. 203; Corbit v. Corbit, 1 Jones' Eq. 114; Scudder v. Van Arsdale, 2 Beasley, 109; Houghton v. Kendall, 7 Allen, 72, 77; Sweet v. Dutton, 109 Mass. 599; De Beauvoir v. De Beauvoir, 3 H. L. Cases, 524; In re Foote, 1 D. & S. 228; Clark v. Cordis, 4 Allen, 466, 480; Lorenz v. Thorndike, 5 id. 257.) Under the clause in question, the "heirs at law" of Wm. N. Davis do not take as "persona designatæ." (Hamilton v. Mills, 29 Beav. 193.) Where, as in the present case, there is an equitable conversion into personalty, of which the bulk of the estate consisted of that portion which was realty, the gift is to be considered a gift of personalty. (Herrick v. Franklin, L. R., 6 Eq. 593; Savage v. Burnham, 17 N. Y. 569.) The rule of interpretation contended for applies, even where the only indication in the will that the testator intended the dis Statement of case. tributees under the statute to take is afforded by the use of the word "heirs" in the gift of the personalty. (Houghton v. Kendall, 7 Allen, 72, 77; Sweet v. Dutton, 109 Mass. 599; Corbit v. Corbit, 1 Jones' Eq. 114; Scudder v. Van Arsdale, 2 Beasley, 109; Loomis v. White, 16 N. Y. W'kly Dig. 407.) The rule that the property is to go to the distributees under the statute is the reasonable one in accordance with the intention of the testator in such a case. (Rawson v. Rawson, 52 Ill. 62.) If the statute of distribution of New York, the place of domicile of Mrs. Gentil, is to control, Mrs. Davis is entitled to a moiety of the William N. Davis share, and to $2,000 in addition. (3 R. S. [6th ed.] 104, § 90 [75], subd. 3.) John Clinton Gray for respondents. Whether William N. Davis took a vested interest in his share, or whether his interest therein was contingent upon his surviving the husband of testatrix, upon the death of said husband, other persons took as substituted legatees in the place of Davis, to-wit, those persons who answered the description of "heirs" of William N. Davis. (Drake v. Pell, 3 Edw. Ch. 251, 268; Williams v. Peabody, 8 Hun, 272; Adams v. Beekman, 1 Paige, 632; 1 Roper on Legacies, 396; Williamson v. Field, 2 Sandf. Ch. 586; R. S., part 2, chap. 1, tit. 2, art. 1, § 13; De Peyster v. Clendening, 8 Paige, 295, 307; Lawrence v. Bayard, 7 id. 70; Moore v. Lyons, 25 Wend. 144; Nodine v. Greenfield, 7 Paige, 548; Hamlin v. Osgood, 1 Redf. 410; Doe v. Martin, 4 T. R. 39; Stanley v. Stanley, 16 Ves. 491; Asbrey v. Bury, 1 B. & B. 53; Driver v. Driver, 6 Price, 41; Carver v. Jackson, ex dem. Astor, 4 Peters, 190.) The word "heirs" is not necessary in this State to create or convey an estate in fee, nor does its use distinguish a fee-simple absolute from a defeasible fee or a conditional fee. The distinction must be made and sought in words of defeasance or of condition. (1 R. S. 749; 2 R. S. [Banks' 6th ed.] 1130, § 1; id. 722; id. 1100, § 2.) The widow of William N. Davis can take nothing if the persons who answer the description of heirs of Davis are the persons entitled to take under the will as |