In Re the Will of Koch

Conway, J. The testatrix, Katharine Koch, executed her will on May 27, 1916. She gave, devised and bequeathed *464 all her property, both real and personal, to her children, naming them, share and share alike. She then provided: “ In case of the death of any of the above named children, I give, devise and bequeath his_or her share to his or her heirs.” Frank J. Koch was one of the children. He predeceased testatrix on December 13, 1929, leaving no issue. He was survived by his widow, Alida Koch, the appellant. At the time of the execution of the will Alida Koch was neither heir at law nor next of kin of Frank J. Koch. (Tillman v. Davis, 95 N. Y. 17; Murdock v. Ward, 67 N. Y. 387; Platt v. Mickle, 137 N. Y. 106.) The Appellate Division decided that she was not entitled to take her husband’s share of the estate, on the authority of Matter of Waring (275 N. Y. 6). Subsequent to that decision the Decedent Estate Law (Cons. Laws ch. 13) was amended (L. 1938, ch. 181) by adding section 47-e, which became effective March 28, 1938. That section provides: “ When used in a statute, in a will or in any other written instrument prescribing the devolution of property rights and unless the statute, the will or the instrument shall expressly or impliedly declare otherwise the terms ' heirs,’ ‘ heirs at law,’ ‘ next of kin ’ and ' distributees ’ and any terms of like import shall be deemed and shall be construed to mean the distributees, including a surviving spouse, who are defined in section eighty-three of Decedent Estate Law.” In connection with that legislation there appears the following note of the Commission: “ This amendment * * * is intended to supplement the amendments to Section 83 of Decedent Estate Law recommended by the Commission to Investigate Defects in the Law of Estates and subsequently enacted by the legislature. The new amendment seems to be required because of comment contained in the opinion in Matter of Waring (275 N. Y. 6; 9 N. E. [2d] 754). In that case the decision was made upon the basis that the language of a will of a person who died in 1907 was to be interpreted in any event in the light of the statute as it existed in 1907. In its opinion, however, the court went beyond the immediate issues in the case and said that the amendment to Section 81 of Decedent Estate Law *465 effected by Chapter 174 of the Laws of 1930 prescribed only a rule for construction of a statute and that the amendment did not have the effect ascribed to it in the lower court decisions on the subject. The amendment proposed is designed to carry into effect the intent of the revision proposed by the Commission to Investigate Defects in the Law of Estates and to establish beyond controversy that a surviving spouse is to be deemed included among distributees as they are deemed to be defined by the words ‘ heirs,’ heirs at law ’ and ‘ next of kin ’ and the like. The amendment is in line with the general purposes of the legislation in 1929 and 1930 designed better to protect surviving spouses.” (McKinney’s Cons. Laws, Book 13, p. 274.) The testatrix died December 19, 1938, subsequent to the enactment of section 47-c of Decedent Estate Law. We, thus, have a clear indication of legislative intent that the surviving spouse is to be deemed an heir at law and next of kin, at least from the effective date of section 47-c of the Decedent Estate Law. Lines of inheritance are governed by statute and it must be assumed that the testatrix knew that those lines could be changed at any time. (Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 128.) She died subsequent to a change and made no new will. Alida Koch is, therefore, entitled to take the share her deceased husband would have taken if living. Such taking is not through her husband’s estate but under the will of the testatrix, Katharine Koch. (Matter of Chalmers, 264 N. Y. 239, 244.) This, moreover, is in accord with the reasoning in Gilliam v. Guaranty Trust Co. (supra) where it was said (at p. 133): “ The general rule applicable to the facts here presented is well established that when property at a future date is to pass to a certain class of persons it will be distributed amongst the persons who compose such class at the date of distribution. (Paget v. Melcher, 26 App. Div. 12, 18; affd., 156 N. Y. 399; Matter of Baer, 147 N. Y. 348; Bisson v. W. S. R. R. Co., 143 N. Y. 125; McGillis v. McGillis, 11 App. Div. 359.) ” *466 The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs in all courts to appellant payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree in accordance with this opinion. Lehman, Ch. J., Loughran and Finch, JJ., concur: Rippey, J., dissents; Sears and Lewis, JJ., taking no part. Ordered accordingly.