In re the Judicial Settlement of the Accounts of the Fidelity Trust & Guaranty Co.

Laughlin, J.: The principal question presented by this appeal is whether, by the bequest of the remainder of the trust fund of personal property in the 4th'clause of the will and 8th clause of the codicil thereto, to “ my heirs,” the testator meant all of his blood relatives who would take if the property were real estate, or whether he intended thereby to include only his next of kin. Although the extent of testator’s — 538 — property is not shown, it is conceded that he left quite a fortune consisting of both real and personal property. ' The referee found that by his will the testator “ made no disposition of the bulk of his estate, which descended as though he had died intestate.” It thus appears that testator left a large estate for he disposed of more than $50,000 by the will. The main purpose of the will seems to have been to create this trust and to provide for its execution. The referee found that the testator, at the time of his death, left him surviving as his next of kin and nearest heirs, fourteen first cousins. He also left many other heirs sustaining the relationship to him of first cousins once and twice removed respectively, and consisting of children and grandchildren of his deceased first cousins. Appellant belongs to the former class, the testator having survived her father, who was his first cousin. It will be observed from the abstract and. extracts given, that the will, although intelligently and quite clearly drafted, does not employ legal terms, and.especially the word “heirs,” with technical legal discrimination. There are many bequests, of personal property to “ heirs,” but the words “ next of kin” are nowhere employed. No heir or next of kin of the testator is specifically named in the will. As has been seen, there was no bequest or devise of the remainder of his property other than the remainder of their trust fund. The “ bulk ” of his estate, consisting of both real and personal property, was left to be distributed among his next of Mn or to descend to heirs pursuant to the Statutes of Distribution and Descent, according to the character of the property. Upon these facts, what is the legal effect and meaning of the words “ my heirs,” as used by the testator in disposing of part of the remainder of this trust fund of personal property ? Did he use these words in their technical legal sense, and thereby bequeath the fund, to all heirs the same as if it had been real estate, or did he use them in the restricted sense- in which they are often employed in bequeathing personal property, to designate his next of kin ? Schouler says (Schouler Wills, § 542): “ The word ‘ heirs ’ in a bequest of personal property, referring to the heirs of A, means, then, jprima facie, the persons who would be entitled to that property had A died intestate; and this whether A is the testator himself, or some one else named in the will, and whether the gift is — 539 — substitutional (as in the bequest to ‘A or his heirs ’), or original (as to the ‘ heirs of A’). In other words, heirs is not£ next of bin ’ according to the civil computation, but the statutory next of bin or distributees, those who for the purpose of succession stand in a position analogous to that occupied hy heirs as to real estate, under the law of descent.” Again (in § 547) he says: “£ Heirs ’ in a popular sense prima faoie denotes next of bin under the Statute of Distributions, so far as a gift of personalty is concerned. * * * But where real and personal estate are given together, and not so inseparably blended, £ heir ’ is better treated as an elastic term; and in such cases the intention intimated is rather that £ heirs ’ was used in a twofold meaning, namely, heir at law as regarded the real estate and next of kin as concerning the personalty. For where the word £ heir ’ is used to denote succession or substitution, it may in our day be well understood to mean such person or persons as would legally succeed to the property according to its nature or quality. In all cases, however, the testator’s intention, if manifest, must govern.” Underhill says (2 Underh. Wills, § 619): “ In the case of a gift of personal property, made either to the heirs of the testator or to the' .heirs of another person, the question may arise whether the word ‘ heirs ’ is employed as meaning those to whom land descends, which is its ordinary sense, or whether it is used to indicate those only who take the personal property in intestacy. Where personal property alone is bequeathed to the heirs, either of the testator or of another person, and the will itself does not show that the testator has employed the word in its technical sense, it may be presumed that the testator has used it to indicate the next of kin according to the statute, who succeed to the personal property in case of intestacy.” The same rule is stated with approval in Redfield on Wills (Vol. 2 [3d ed.], *62), Hawkins on Wills (92, 93), Williams on Executors (Vol. 2 [7th Am. ed], *969). In Montignani v. Blade (145 N. Y. 111) the court say (p. 122): “ But where the bequest is of personal property the word heirs is taken to mean those in the line of distribution, or the next of kin ; and where the will shows on its face that the person whose heirs are referred to is, to the knowledge of the testator, at that time living, — 540 — it is obvious that it is not used in its strict technical sense, but means in the case of land, heirs apparent, or those who would be the heirs were the living ancestor deceased (Heard v. Horton, 1 Den. 168), and in the case of personal property, next of kin, who would be such were the ancestor deceased.” The general rule was so declared by this court in the case of Armstrong v. Galusha (43 App. Div. 248) in the following language (p. 25.7): “ The cases referred to, and many others which might be cited, establish the proposition that when the words-‘ heirs,’ ‘ legal heirs,’ or ‘ heirs at law,’ are used in a will for the purpose of designating the distributees of an estate composed entirely of personal property, and their meaning is not ambiguous, or changed or modified by the context, or dther parts of the. instrument, they are equivalent to and mean 1 next of kin,’ and, unless otherwise provided, the Statute of Distribution determines the portion each distributee is entitled to take. But it is equally well established that it is the province and the duty of the court in each case to ascertain what the testator' meant and intended when he used such words, and when so ascertained to give to such meaning and intent full force and effect; and, also, that such meaning may be learned from the words themselves, the context, the instrument considered as a'whole, and all the circumstances surrounding each particular case. Courts will not substitute 1 next of kin ’ for 1 heirs ’ in a testator’s will,, and thereby create an entirely different class of persons as legatees, unless it appear that such substitution is necessary in order to make operative and effectual his intent.” In that case, however, it was apparent from an examination of the entire will, together with a memorandum in testator’s handwriting naming all of his heirs, and indicating the proportion of his estate which each set of heirs would take, and ■ from other extrinsic facts showing his relations with his heirs, that he there used the words “my heirs” to designate all his heirs and not merely his next of kin. In Lawton v. Corlies (127 N. Y. 100) the testator leaving both real and.personal property, directed that his estate be divided among his “ heirs at law ” in accordance with the laws of the State of New York applicable to persons who die intestate. The court, construing this provision of the will, say (p. 106): “ The use of the words 1 heirs at law ’ in such a connection indicates, as we think, the legal — 541 — heirs, in the sense of persons who would legally succeed to the property in case of intestacy, according to its nature or quality, the heirs at law taking the realty and the next of kin the personalty. The cardinal idea seems to be that the division should be made in accordance with the statute in case of intestacy. This, as was said by the learned General Term, seems to be £ the plain import of the language used by the testator, * * * giving to the persons forming each of these classes whatever of the estate would go to them under the laws of the State. * " * As already suggested, there is nothing to indicate any other purpose.’ ” This doctrine was applied in Cogan v. McCabe (23 Misc. Rep. 740), the court saying: “ The gift being only of the proceeds of real estate when sold, by the words the £ lawful heirs ’ of James Cogan, the testator must be held to have intended £ those of his kindred or. blood who took by the Statute of Distributions.’ ” We are of opinion that the facts of this case bring it within the general rule stated by the authors and in the decisions from which we have quoted. The use of the words “ my heirs ” in reference to the disposition of part of the remainder of the trust fund is not sufficient, in view of the other facts stated, to indicate an intention on the part of the testator that such fund should be distributed differently from the remainder of his personal property as to which he died intestate. The will indicates that testator was not on terms of intimacy with any of his heirs, and that, if acquainted with them at all, he had no special interest in any of them. It would seem to follow that he could have had no particular intention concerning his heirs, excepting to permit them to take and inherit according to the statutes of the State such of his property as he did not otherwise dispose of, and to take in the same manner the remainder of this fund after the fulfillment of the trust for which sole purpose it was reserved from distribution to them with the .greater part of his estate as to which he made no disposition. The Statute of Distribution governs, and the referee and surrogate, therefore, properly decided that the fourteen first cousins of testator took that part of the remainder of the trust fund thus bequeathed to his heirs. Upon the hearing before the surrogate on the coming in of the referee’s report, the executor was placed upon the stand to testify with reference to the moneys received and paid out since the giving of — 542 — Ms testimony before the referee for the purpose of bringing the account down to the date of the decree to be made by the surrogate. On his cross-examination it developed that the testator was ' a lawyer, but' that he had not practiced his profession for some years prior to his death. Thereupon, on motion of the attorney for some of the respondents, the court struck that testimony out and exception was taken by appellant’s attorney. Whether further evidence would be received at that time' was discretionary with the surrogate. The matter had been fully tried out before the referee whose findings were before the surrogate ■ for confirmation ; but even if it were error to strike out the evidence, it is not sufficient ground for reversal. The mere fact that testator had been at one time a practicing attorney, would not, under all of the facts of the case, lead to a different construction of the will and codicil. It follows that the decree should be affirmed, with separate bills of .costs to all respondents appearing by separate counsel, and allowances to the special guardians to be made by the surrogate and payable out of the funds. All concurred, except McLennan, J., not voting. ■ Decree of Surrogate’s Court affirmed, with separate bills of costs to all respondents appearing by separate attorneys, and allowances to special guardians to be made by Surrogate’s Court payable out of the estate.