In Re the Accounting of Barry, 1949 N.Y. LEXIS 1003

In Re the Accounting of Barry

1949 N.Y. LEXIS 1003

1949

Check Treatment

Dye, J.

Albеrt Burk died April 21, 1931, having made a will leaving his estate in trust for the life use and benefit of his wife. She died April 26, 1947. The substituted testamentary trustee has filed her petition tо account and for a construction of the testator’s will to determine to whom and in what proportions the residue of the estate rеmaining in her hands is now distributable, the testator having provided, viz.: SecoNd : Upon the death of my wife, I order and direct my said executor to pay and distribute the one-half of all my said estate unto my nearest of kin in equal shares and to pay and distribute the other half of all my said estate unto the nearest of kin of my wife in equаl shares.” (Emphasis supplied.) The parties to this appeal are the persons interested in the one half of the residue of the estate payable to the relatives of the life tenant. The distribution of the one-half share payable to the testator’s relatives is not сontroverted, they having previously agreed among themselves upon a satisfactory division. The Surrogate, without the aid of extrinsic evidenсe but relying solely on the testamentary language, has found and decreed that, in the absence of words of gift “ in prsesenti ” and the direction to the executor to pay and distribute, the remainder vested upon the death of the life tenant (Matter of Bostwick, 236 N. Y. 242). He also construed the phrase “ neаrest of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍kin ” as equivalent to and synonymous *455 with ‘ next of kin ’ in the legal sense and directed distribution “ per stirpes ” in accordance with the Decedent Estate Law applicable to intestacies.

The Appellate Division construed the words “ nearest of kin ” to mean “ nearest blood relation and modified the Surrogate’s decree directing payment to the life tenant’s sole surviving sister, Mary E. Wright, to the exclusion of all other parties who were next of kin in the legal sensе, including Ella Brady, the spouse of her deceased brother Michael Brady (Decedent Estate Law, §§ 47-c, 83). It declined, however, to pass оn when the remainder vested “ in the absence of an appeal from the decree ” (Wilson v. Mechanical Orguinette Co., 170 N. Y. 542; Matter of Davis, 149 N. Y. 539; Kelsey v. Western, 2 N. Y. 500). The notice of appeal to the Appellate Division filed by Mary E. Wright contained a statement limiting the appeal from “ so much and such part of the decree * * * as adjudges thаt the term ‘ nearest of kin ’ in the will of Albert Burk means ‘ next of kin ’ and * # to whom and in. what proportions the estate ⅜ ⅝ ⅝ is now payable.” The cases reliеd on are proper authority where separable or severable issues are disposed of in a single judgment or order from which an appeal is taken from a part only. Under such circumstance the review is confined to the part appealed from. In this appeal the issue involves the testator’s intent as expressed by the language used in his will. Every element necessary to the ascertainment of suсh intention in order to accomplish distribution of the residue to the persons and in such proportion as intended is open to review, including thе time when the remainder vested. We may not be concluded in a proceeding of this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sort because the appellant in her noticе of appeal to the Appellate Division sought to restrict the review by stating a limitation, nor is the situation changed by the circumstance that the distributees of James and Michael Brady, deceased brothers of the life tenant and parties to the proceeding, did not appeal from the Surrogate’s decree to the Appellate Division, or that the distributees of Philip Brady, a deceased brother, and thе special guardian of the missing brother, John Brady, who had been declared judicially dead, did not appeal from the modification in the Appellate Division to this court, so as to prevent their interest from being considered here. All parties to the *456 proceeding are deemed parties to this appeal (Surrogate’s Ct. Act, § 289; Civ. Prac. Act, § 193, subd. 1; § 584; Matter of Winburn, 270 N.Y. 196).

The testator directed Ms executor'after the death of the life tеnant to pay and distribute. one half his estate “unto the nearest of Mn of my wife ” thereby indicating a gift to a class which could not very well be asсertained until the death of the wife. It was not until then that the remainder vested (Matter of Bostwick, 236 N. Y. 242, supra; Matter of Koch, 282 N. Y. 462; Matter of Pulis, 220 N. Y. 196; Real Property Law, § 40). Members of the class at the time of distribution take (Gilliam v. Guaranty Trust Co., 186 N. Y. 127). The testator designated the class to whom he gave his estate as the “ nearest of kin of my wife in equal shares.”. Ordinarily the intended meaning of suсh a simple word as ‘ ‘ near-, est ” in everyday usage creates no very great problem as it is commonly used as synonymous with “ next ” (Webster’s Dictionary) and has been given the same meaning when used in connection with kin and relations (Oxford Dictionary; Encyclopedia Britannica), but we find on an еxamination of the legal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍authorities that there is a division of opinion as to its meaning when used in a will. The difficulty is occasioned, no doubt, by the circumstance that in England and many other States wMch follow the English rule, the term ‘ ‘ next of kin ’ ’ when used in a will is construed as a direction to recognize consanguinity, while in New York State the words “ next of kin ” have long been regarded as a technical phrase calling for distribution in accordanсe with the statute (Slosson v. Lynch, 43 Barb. 147 [1864]).

The Appellate Division interpreted the phrase “ nearest of kin ” as indicating intent to direct distribution to nearest in consаnguinity, relying on Matter of Martin (255 N. Y. 248, 251). There we construed the words “ ‘ my nearest relatives ’ ” to mean those nearest in degree of consanguinity, citing as authority Ennis v. Pentz (3 Bradf. 382); Haas v. Speenburgh (122 Misc. 458), and Matter of Brown (133 Misc. 519). In the Ennis case (supra, pp. 385-386) thе testator gave the residue of the estate unto “ ‘ the two nearest female relatives or connections ’ of his deceased mоther ’ ’ which was construed as intending those ‘ ‘ nearest in degree — counting from the specified stock ” or to put it more simply ‘ ‘ nearest by blood ’ ’ thus exclud *457 ing Mrs. Ennis, the widow of a grandnephew. In the case (supra, p. 460) the phrase “ to be divided equally between my nearest kin ” was construed to mean “ nearest by blood The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Surrogate relied on several ont-of-State authоrities which had construed words such as “ nearest relatives ” (Matter of Altdorfer, 225 Pa. 136); “ nearest of kin ” (Clark v. Mack, 161 Mich. 545; “ nearest akin ” (Hammond v. Myers, 292 Ill. 270); “ nearest relations ” (Locke v. Locke, 45 N. J. Eq. 97); “ nearest blood connection ” (Jones v. Parsons, 182 Iowa 1377), as nearest in degree of blood. In the Brown case (supra, p. 526) the Surrogate construed the expression “ to nearest relatives then living ” as meaning “ living at the death of testator’s widow ” and that the words “ nearest relatives ” meant those in the nearest degree of consanguinity.

The rule of consanguinity followed by the English authorities and many of our sister States was rejected as inconsistent in New York as far hack as Slosson v. Lynch (43 Barb. 147 [1864], supra), the principle of which was reaffirmed in New York Life Ins. & Trust Co. v. Winthrop (237 N. Y. 93), saying in substance that when the testator uses the words “ next of kin ” a division according to the statute is.more likely than any other to correspond with his wish and should govern whеn the testator’s intention is in doubt. The similarity in usage of the words “ nearest ” and “ next ” suggests that the testator here used the word “ nearest ” in accordance with New York State usage and was not aware that in so doing he brought into play an English rule ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of inheritance following an historical concept of consanguinity contrary to the public policy of New York or vice versa.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to the appellants, payable out of the estate.

LoughraN, Ch.' J., Lewis, CoNway, DesmoNd and Fuld, JJ., concur.

Order reversed, etc.