Tillman agt. Sullivan.

through the postponement by her of the time of the division. of the estate, after her husband's death, when the gifts were to be absolutely taken and enjoyed. For upon the death of the life tenant, and not before, was the remainder, the legal title to and possession of which, as an entirety, was to remain in the trustees for the sole use of the husband of the testatrix until his death, to be divided into separate shares, and which distinct shares were given to the persons above named and "their heirs." In view of the fact that in the event of the death of Davis in the lifetime of the husband of the testatrix, there was a gift over, it is not material to speak further of the nature of the interest of Davis during life, for if it was a vested interest it was liable to be divested. The gift to him was not indefeasible. For the last sentence in the clause, which must be considered as controlling, is in these words:

"The heirs of any or either of the foregoing persons who may die before my said husband, to take the share which the persons or person so dying would have taken if living."

This clearly shows that the testatrix would herself with certainty point out the channels through which her estate should flow. In this view the heirs of the person so dying are substituted in the place of the persons dying, and take through the operation of the executory gift, and not by descent or inheritance.

Construction can assign no period for the absolute vesting of interests under a will in opposition to its plain and ambiguous terms, nor can it enlarge a right or interest beyond what the clearly expressed intentions of the testator has intended. And I must therefore decide, as well in the case of William N. Davis as in that also of any other person to whom a share in the remainder was given by the eighth clause of the will, and who died in the lifetime of Theodore Gentil, that his or her heirs take the share which the person so dying would have taken if living at the time limited by the will. The following cases illustrate what has been above suggested: Drake

Tillman agt. Sullivan.

agt. Pell (3 Edw., ch. 251, p. 268); Adams agt. Beekman (1 Paige, 632); Williamson agt. Field (2 Sandf., 533); Moore agt. Lyons (25 Wend., 144). But it is claimed by the learned counsel for the widow of William N. Davis that if his share did not vest absolutely in him, so as to pass to her under his will, still she took the whole of said share as his "heir" under the eighth clause of the will. And in this connection it is urged that the bulk of the estate left by the testatrix was personal, and that her real estate was of comparatively small value, and that by force of the provisions of the will there was an equitable conversion of realty into personalty.

I am of opinion that there was such equitable conversion. But I apprehend that the fact that the whole remainder is to be regarded as personal property, for the purposes of division and distribution, does not determine the question as to whether the widow is to take the whole or any part of the share primarily given to her husband.

Effect must be given to what has been decided abovethat the heirs of William N. Davis take the share of the estate primarily given to him by purchase, through the gift over and under the will. It is probably true that under the English decisions the widow would be embraced under the general term "heirs" of William N. Davis. Thus, In re Stevens' Trust (15 Eq. [L. R.], 115), it was held that by the word "heirs" were meant the next of kin of I. S., according to the statute of distributions, together with the widow of I. S., if living at the death of the testatrix. The "heirs-atlaw" and "next of kin," although often the same persons, yet they constitute separate classes. The word "heirs" usually designates those who succeed to the real property of an intestate; the "next of kin," those who succeed to the personal property; and the word "heirs" is sometimes construed to mean "next of kin."

I can discover nothing in the will under consideration which leads to the conclusion that the testatrix meant that the widow of William N. Davis should be included in the word "heirs,"

Tillman agt. Sullivan.

used by her, or that she should take any part of the remainder, although it all be regard as personalty.

The following cases hold in effect that the widow is neither an "heir," nor embraced within the term "next of kin " of her husband (Adams agt. Beekman, 1 Paige, 632; Drake agt. Pell, 3 Edw. Ch., 251; Hamlin agt. Osgood, 1 Red., 410; Slosson agt. Lynch, 43 Barb., 147; Wright agt. Trustees of Meth. Epis. Church, Hoff. Chy. R., 202; Murdock agt. Ward, 67 N. Y., 387, 390). In the latter case, the court held that the words "next of kin " do not include the widow; they mean "relatives in blood" (See, also, Luer agt. Dunham, 69 N. Y., 36; Kettletas agt. Kettletas, 72 N. Y., 312; Jones agt. Lloyd, 33 Ohio, 572; Gauch agt. St. Louis, &c., 88 Ill., 251). And by the Code of Civil Procedure, section 2514, subdivision 12, the term "next of kin" includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife.

I must, therefore, decide that the widow is not included under the term "heir" as used by the testatrix, and can take nothing under the will.

The rights of parties claiming under the will must be determined by the law of New York, in which state the testatrix resided, and with respect to which she is presumed to have made her will. Undoubtedly had William N. Davis survived the tenant for life, and had then died, the rights of his wife to property of which he had died possessed would have been different, and her rights would in such case have depended upon the law of her husband's domicile at the time of his death.

The conclusion reached, therefore, with regard to the gift in question is that the defendants Grace E. Bird and others, who were the nearest blood relatives of William N. Davis, at the time of his decease, are entitled under the will to the share primarily given to him.

VOL. LXIII 46

Martin agt. Rector.

I do not regard it proper at this time to make any sugges tions in regard to the fund of $10,000, set apart in pursuance of the fifth clause of the will, for the benefit of Ann B. Davis during her life. The trust concerning that fund still continues, and the fund cannot be distributed in this action, and it is probable that changes before the trust terminates will take place, which a decision now could not anticipate or effect. The findings, conclusions of law and judgment will be settled in pursuance of the above.

SUPREME COURT.

ROBERT C. MARTIN agt. JACOB S. RECTOR.

Ejectment - New trial-A defendant who has been evicted by virtue of a judgment in an action of ejectment, where a new trial is granted in such action upon an appeal, and he succeeds, cannot enter a judgment of restitution without an order of the court allowing it — Code of Civil Procedure, sections 1189, 1525, 1526, 1529, 1005, 1292, 1323.

A defendant who has been evicted from the possession of real estate by virtue of a judgment in favor of the plaintiff in an action of ejectment, provided a new trial is granted in such action upon an appeal, and he succeeds upon such new trial, cannot enter a formal judgment of restitution upon such verdict, without an order of the court allowing it.

Albany Special Term, May, 1881.

MOTION by plaintiff to correct the judgment-roll, entered in this action, and for the restoration to him of the property from which he or his assignee had been evicted by the execu tion issued upon such judgment.

Samuel Hand, for the plaintiff and motion.

George W. Miller, for the defendant, and opposed.

Eugene Burlingame, for party removed from the premises.

Martin agt. Rector.

WESTBROOK, J.-This action was brought to recover possession of certain real estate situate in the county of Rensselaer. Upon the first trial of such action the plaintiff succeeded, and by virtue of the judgment entered, the plaintiff was, by execution, placed in possession of the property.

The judgment, however, was reversed at general term upon an appeal, and a new trial granted, but there was no order made for the restoration to the defendant of the property from which he had been evicted.

The action was retried at the Rensselaer circuit in February, 1882, justice INGALLS presiding, and resulted in a verdict for the defendant. The charge, however, of the judge presiding at the trial, shows it was held as matter of law, that the plaintiff was entitled to recover, provided the defendant was the actual occupant of the premises sought to be recovered at the time of the commencement of the suit.

Without any order of the court allowing it, the defendant has, upon the verdict, not only entered a judgment for costs, but has also inserted therein a special clause directing the possession of the premises to be restored to him. By virtue of an execution issued upon such judgment, the defendant has been placed in possession of the property.

The plaintiff now moves (and in such motion one John M. Green, who was the occupant of the premises, and was removed therefrom under the judgment in favor of the defendant, unites) that the order of restoration in such judgment contained should be set aside, and the proceedings thereunder in favor of the defendant vacated and annulled.

The question, which the motion involves, is, can a defendant, who has been evicted from the possession of real estate by virtue of a judgment in favor of the plaintiff in an action of ejectment, provided a new trial is granted in such action upon an appeal, and he succeeds upon such new trial, enter a formal judgment of restitution upon such verdict, without any order of the court allowing it?

If the question just stated must be answered in the affirm