Arnot v. Arnot

78 N.Y.S. 20 | N.Y. App. Div. | 1902

CHASE, J.:

The words “ heirs at law ” and “ next of kin ” have a well-known ■and commonly understood meaning.

In each case it is well settled that the words are to be construed ■as referring to those who are such at the time of the ancestor’s •death. (15 Am. & Eng. Ency. of Law [2d ed.], 322; 21 id. 540; Wadsworth v. Murray, 161 N. Y. 274.)

The only words of the will relating to the disposition of the residue •of the estate under the circumstances actually existing are: “ And •■Should any one of my children die before attaining the age of twenty-five years * * * if he leave no children him surviving, his share shall go to his heirs at law and next of kin in accordance With law.”

Giving to these words their natural and well-defined meaning, the title to the residue passed immediately upon the death of Elizabeth Hulett Arnot to the plaintiff.

Such construction is in' accordance with the rule favoring the Vesting of property, and it should prevail unless the testator’s intention as found in the whole will requires a different construction.

The will was executed before the testator had a child, and it was ' ■evidently intended to provide for every situation that could reasonably be anticipated.

There is nothing in the will to indicate a desire on the part of the testator -to benefit any of his relatives other than those expressly mentioned in the will.

The intention of the testator, in case he died leaving a child or •children him surviving and it or they should live to reach the age •of twenty-five years, is stated with particularity.

His intention is also clearly stated in case he should die without leaving issue him surviving, or in case one of his children should •die before reaching the age of twenty-five years, but leaving children such child surviving.

The possibility of testator’s dying leaving one child and that such child should die without children before reaching the age of twenty-live years was not a remote one.

The particularity with which the testator provided for the several other contingencies leads to the conclusion that the words “ if he leave no children him surviving, his share shall go to his heirs at law and next of kin in accordance with law,” were used advisedly and intentionally. If testator had intended that the share of a child dying without children should go to the person or persons who would be the heirs at law and next of kin of such deceased child when such deceased child would have reached the age of twenty-five years, he would have said so in as clear and specific language as the other provisions of his will are stated.

We are unable to find in the will any underlying purpose or intention that requires a construction of the will other than in accordance with the well-settled meaning of common words and phrases.

The plaintiff should have judgment construing the will and determining that the residue of the estate of the testator is by the terms of the will given to Elizabeth T. Arnot, as the sole heir at law and next of kin of Elizabeth Hulett Arnot, deceased.

All concurred.

Judgment directed for the plaintiff construing the will and determining that the residue of the estate of the testator by the terms of the will is given to Elizabeth T. Arnot, as the sole heir at law and next of kin of Elizabeth Hulett Arnot, deceased, without costs to either party.