Opinion of the Court, per EARL, J. date of the will, leaving a husband and children; and it was held that the word "heirs" meant next of kin, and did not include the husband, as he was not next of kin to the wife. The learned assistant vice-chancellor writing the opinion, cited various English authorities to sustain his decision. In Slosson v. Lynch (43 Barb. 148), under a marriage settlement the wife was to have the income for life of certain personal property with a certain power of appointment by will or otherwise, and in the event of her death before her husband, and in the absence of any appointment, then the property was to go to her issue then living and the children of such as might be deceased, and in default of such issue, "to the next of kin of the party of the first part;" and it was held that the words "next of kin" meant those of the kindred or blood who took by the statute of distributions, in case of intestacy, but excluding a widow as such; and the learned judge writing the opinion cited and commented upon many English decisions. In Murdock v. Ward (67 N. Y. 387), the residue of personal property was directed to be "equally divided among and paid to the persons entitled thereto as their, or either of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate." And it was held that next of kin meant relatives in blood and did not include a widow. In Luce v. Dunham (69 N. Y. 36), a testator directed that all the rest, residue and remainder of his estate should be divided among his heirs and next of kin in the same manner as it would be by the laws of the State of New York" had he died intestate; and it was held that the words "next of kin " did not include a widow, and that the addition of the words referring to the laws in case of intestacy did not enlarge the class of legatees so as to include her. In that case the surrogate and the Supreme Court held that, the language not being simply that the personalty be distributed among the testator's next of kin, but being that it should be distributed among his next of kin "in the same manner as it would be by the laws of the State of New York" had he died intestate, these latter expressions Opinion of the Court, per EARL, J. controlled the words "next of kin," and showed that they were intended to embrace all who would be distributees under the statute, and that the will should be construed as though the testator had directed, generally, that his residuary estate should be distributed according to the statute, as in the case of intestacy. RAPALLO, J., writing the opinion of this court and disagreeing with this reasoning, said: "A provision directing generally that on the decease of a testator, his personal property be distributed as provided by statute in case of intestacy, would, of course, entitle the widow to be included in the distribution though not specially mentioned; but where the distributees are, by the terms of the will, confined to the next of kin of the testator, effect must be given to that restriction, and the reference to the statute, or to the laws, merely affords the rule of distribution among the next of kin as if there were no widow." In Keteltas v. Keteltas (72 N. Y. 312) a will directed that the residuary estate should be divided among the testator's next of kin according to the statute of New York, concerning the distribution of personal estates of intestates; and it was held that the words "next of kin" meant relatives in blood, and that they did not include the testator's widow. These authorities, it seems to me, leave little more to be said. There is no reason for holding that the word "heirs," when applied to personal estate, has a broader or more comprehensive signification than the words "next of kin." To hold that the word "heirs" includes all those persons who would take personal estate under the statute of distributions, and that the words "next of kin," even when associated with the words found in connection with them in the last three cases cited, do not include such persons, but include only relatives by blood, would make a distinction founded upon no reason, and altogether too nice for profitable use in the construction of wills and the administration of justice. however, which are (Withy v. Mangles, There are several decisions in England, not entirely in harmony with these views. 10 Clark & Fin. 215; Evans v. Salt, 6 Bevan, 266; Jacobs v. Opinion of the Court, per EARL, J. Jacobs, 16 id. 557; Low v. Smith, 2 Jurist [N. S.], Part 1, 344; Doody v. Higgins, 2 Kay & Johnson, 729; Elmsley v. Young, 2 Myl. & K. 82; In re Porter's Will, 6 W. Reporter, 187; In the Matter of Porter's Trust, 4 Kay & Johnson, 188; In re Newton's Trusts, 4 Eq. Cas. L. R. 171; In re Steevens' Trusts, 15 id. 110; Wingfield v. Wingfield, 9 Chan. Div. L. R. 658.) There is much confusion in the English cases upon this subject, and it is impossible to reconcile them. In the case In re Stevens' Trusts, a testator, after devising real estate to a devisee, and to her heirs and assigns, bequeathed to her trustees £500, upon trust, to invest and pay the proceeds to E. R. for life, and in case (which happened) E. R. should leave no child living at her (E. R.'s) decease, then she directed the trustees to divide the principal sum amongst the heirs of her late brother J. S.; and it was held that by the word "heirs " was meant the next of kin of J. S. according to the Statute of Distributions, together with the widow of J. S. if living at testatrix's death. Vice-Chancellor BACON, writing the opinion, said: "This is one of those cases which certainly call for the enactment of a Code, or of some rule for the interpretation of expressions to be found in wills. In the midst of the 'confusion worse confounded' which exists among the authorities on this subject, I must endeavor to put such a construction upon the language of this will as the general sense of the instrument requires." In Withy v. Mangles, by the settlement made on the marriage of E. M., the ultimate limitation of a sum of £10,000 which her father thereby covenanted to pay was "to such person or persons as at the time of her death should be her next of kin." E. M. died, leaving her husband and a child of the marriage, and her own father and mother surviving, and it was held that the father, mother and child of E. M. were equally her next of kin, and were entitled under the limitation to the £10,000 in joint tenancy. Lord CAMPBELL, writing one of the opinions, and speaking of the confusion into which the law of England had fallen, in reference to the words "next of kin," said: "It is impossible to deny that the law has by some bad luck got into a strange Opinion of the Court, per EARL, J. state, and that now, unless great caution is observed in framing deeds, many calamitous consequences will take place." These utterances of learned English judges give me no courage to trace the English cases through all their perplexing mazes in search of the English rule upon the subject we are now considering. Suffice it to say that that rule seems to have been evolved by holding that the word "heirs," when applied to the devolution of personal property, means next of kin, and that the words "next of kin " in such cases mean those who would take personal property under the Statute of Distributions; and thus they are held to embrace the widow. Such a conclusion is at variance, as we have seen, with the reasoning upon which the cases in this State have been decided. In a few cases in this country, in other States, it has been held that the word "heirs," when applied to personal property, means those that by the Statute of Distributions take the personal property in case of intestacy, and hence embraces widows. (McGill's Appeal, 61 Penn. St. 46; Eby's Appeal, 84 id. 241; Sweet v. Dutton, 109 Mass. 589; Welsh v. Crater, 32 N. J. Eq. 177; Freeman v. Knight, 2 Ired. Eq. 72; Croom v. Herring, 4 Hawks, 393; Corbitt v. Corbitt, 1 Jones' Eq. 114; Henderson v. Henderson, 1 Jones' Law, 221; Alexander v. Wallace, 8 Lea, 569; Collier v. Collier, 3 Ohio St. 369.) We see no reason for following these decisions. They reach the same result as some of the English decisions above referred to by holding that the word "heirs," when applied to personalty, is used in a broad sense to represent all the persons who, under the statutes in case of intestacy, would take the personalty just as when applied to real estate, it means all the persons who would take that in case of intestacy. But in the case of real estate it is not true that the widow ever takes as heir, and that word will never embrace her unless there is other language associated with it showing that it was intended to embrace her. Here the testatrix, when she made her will, was dealing with both real and personal estate, and she undoubtedly used the word "heirs" to designate blood relatives, and in the same sense, Opinion of the Court, per EARL, J. whether applied to real or to personal estate. If the property in controversy had been strictly real estate, the appellant would have taken nothing in it as widow, as her husband's interest, whatever it was, never vested in possession and did not survive him. Neither if it had been real estate would she have taken as heir of her husband; and the reasoning is incomprehensible to me that would give her personal property under the designation of heir which would not give her real estate under the same designation. We think the rule that has been adopted in this State is plainer, more easily applied and understood, will lead to less confusion, and will generally, if not universally, be more likely to give effect to the real intention of testators, and others settling their estates. 99.66 The primary object of all construction of wills is, in each case, to ascertain the intention of the testator, and to give effect to that within the rules of law. The words "heirs next of kin" may be so used in association with other language, and under such circumstances as to show an intention to include others than blood relatives. But in the absence of any thing showing a different intention they must be held to mean what they primarily import, relatives in blood. In this State they have not by legal usage, or general custom, come to mean any thing else; and there is nothing in this will, and there were no circumstances connected with the testatrix or her estate to indicate that she intended by the word heirs a broader signification. We are, therefore, of opinion that the judgment should be affirmed, with costs to the respondents and the appellants, to be paid out of the estate. All concur. |