delivered the opinion of the court:
Thе question presented by this appeal is the construction to be given the words “nearest akin,” in the following paragraph of the will of John Love, deceаsed: “I give, devise and bequeath unto my son Robert Linton Love forty (40) acres of land, * * * to have and to hold the same during his natural life, for-his support and maintenance during his natural life. After his death to revert to his nearest akin.” The will was executed December 6, 1886, the testator died February 19, 1888, and the will was admitted to probate Marсh 9, 1888. February 9, 1918, Robert Linton Love, son of the testator and devisee under the will, died, leaving him surviving no widow, parent or child but leaving him surviving a sister, a brother, seven nieces and five nephews. May 3, 1918, Josephine Hammond,.surviving sister of Robert Linton Love, filed her bill seeking partition of the real estate described in the will and making her brother and her nieces and nephews defendants. By her bill she claims to be the owner of an undivided half of said real estate as tenant in common with her brother and that the nieсes and nephews of Robert Linton Love have no interest in the premises. The defendants answered the bill, admitting all its allegations except that with reference to the interests of the parties. Defendants filed a cross-bill, setting forth the interests of the parties and the relation of the parties to Robert Linton Love, deceased, as follows: Charles M. Love, brother, Josephine Hammond, sister, and Addie Myers, only child of a deceased sister, each 60/360 of the premises; Hоward Wallace and Bessie Bonwell, children of a deceased son of a deceased sister, each 30/360; Clyde Taylor, Emma Kester, Ella Richmond and William H. Tаylor, children of a deceased sister, each 15/360; and Horace G. Phillips, Elizabeth Lemmons, Belle Connor, Anna Jones and Charles J. Phillips, children of a deceаsed sister, each 12/360. The cause was heard upon the bill, cross-bill and answers, and a decree entered finding that the interests of the parties in said real estate were correctly set forth in the cross-bill and ordering partition of said premises accordingly. From this decree appellant prayed and pеrfected her appeal.
The evidence shows that at the time this will was executed the living heirs of the testator were two sons, fqur daughters and five grandchildren, сhildren of a deceased daughter, Margaret L. Phillips. Subsequent to the making of the will and subsequent to the death of the testator but prior to the death of Robert Linton Love, the -life tenant, three daughters of the testator, Belle Myers, Harriet Taylor and Elizabeth Wallace, died, leaving surviving them children, who, with the children of Margarеt Phillips, claim to be entitled to an interest in the land here in question, as set forth in the cross-bill. In 1886 the testator, John Love, had some personal property and 180 аcres of land. He disposed of 40 acres of this land by will to take care of his son Robert Linton Love, who was not mentally capable of caring for himself. All of the remainder of his property passed intestate and was sold by the administrator of his estate. The only land held in common by the parties to this suit is the 40 acres here in question.
As we have said, the only question presented here is whether the words “nearest akin,” in the will, mean nearest blood relations or include all those rеlations who would take under the Statute of Distributions. The terms “nearest of kin,” “next of kin,” and similar phrases used in wills, have been the subject of serious consideration by the сourts of last resort of this and other countries. Redfield in his work on wills (vol. 2, — 2d ed. — p. 75,) says: “Bequests to the next of kin of the testator or of some person named have rеceived somewhat different constructions in the early cases and different views have been maintained by different' judges of great learning and ability. On the one hаnd the terms were held to include those, only, who would take under the Statute of Distributions. Of this opinion were Mr. Justice Buller, Lord Kenyon and Sir John Leach. And on the other hand wеre Lord Thurlow, Lord Eldon, Sir William Grant, and the decision of Sir T. Plumer in Brandon v. Brandon, who all maintain that the terms ‘next of kin’ apply to those nearest in kindred to the propositus and exclude all of more remote degree. The question came before the court in Elmsley v. Young, and at the rolls it was held that the words ‘next of kin,’ used simpliciter and without explanatory context, must be taken to mean next of kin according to the Statute of Distributions, but upon appeal before the Lords Commissionеrs the judgment upon this point was reversed and the cases very extensively reviewed by their lordships. It was here held that the words ‘next of kin’ must be construed to mean, when usеd simpliciter, nearest of kin; and so a brother of the propositus will take the whole bequest, to1 the exclusion of the children of a deceased brothеr or sister. This subject was discussed at length before the House of Lords in Withy v. Mangles, and the conclusion reached that Elmsley v. Young must be regarded as the settled law in regаrd to this point. * * * Lord Cottenham said the term ‘next of kin,’ under the Statute of Distributions, ‘had been inaccurately used, since the statute carefully avoided using any such form of expression, without qualification, allowing the representation of those who had deceased of the nearest kindred, unless more remote than brothers’ аnd sisters’ children. His lordship maintained that the term ‘next of kin’ had acquired no such popular import as to include those who would take under the Statute of Distributions in cаse of intestacy.” Thompson in his work on wills (sec. 170) says: “The term ‘next of kin’ is limited in legal meaning, as in common use, to blood relations. * * * Under a gift to ‘next of kin’ a brother or sistеr will take to the exclusion of the children of a deceased brother or sister. The term does not mean all those who would take under the Statute of Distributions. It signifies those who stand in the nearest relationship to the intestate according to the rules of the civil law for computing degrees of kinship.” Page in his work on wills (sec. 521) says: “The words ‘next of Icin’ do not, of themselves, impart succession ab intestato, and, taken alone, mean nothing more than nearest blood relations; аnd unless there is something more in the will indicating that the testator intended statutory next of kin or that the property should be distributed as intestate property, the words must have their customary meaning. The words ‘next of kin,’ in a will, mean the néarest blood relations, and not all those who would take under the Statute of Distributions. Thus, ‘next of kin’ means a brother in preference to nephews, sons of a deceased brother.” (See, also, 2 Jarman on Wills, 644.) The rule above stated is supported by the courts of lаst resort in this country. Swazey v. Jaques,
While this court has never passed upon the precise question here presented, the courts which we have cited have given the question careful and able consideration, and we see no reason why the rule established with such uniformity should not be adopted as the rule to be fоllowed in this State. The meaning given the term “next of kin” in Chicago and Alton Railroad Co. v. Shannon,
' It follows, therefore, that the chancellor erred in ordering distribution among the legal heirs of the deceased in accordance with the Statute of Descent. The term “nearest akin” must be held to mean' nearest blood relation. Manifestly, a sister and a brother are nearer blood relations than a niеce or a nephew, and therefore the prayer of the original bill should have been granted and partition ordered between the appellant, Josephine Hammond, and the appellee Charles M. Love.
The decree is reversed and the cause is remanded to the circuit court of Edgar county for further proceedings consistent with the views herein expressed.
Reversed and remanded.