275 N.Y. 6 | NY | 1937
John T. Waring, Sr., died in 1907, a resident of Westchester county, New York, leaving a last will and testament dated June 20, 1899, and two codicils dated respectively October 24, 1899, and December 13, 1901, which were admitted to probate by the Westchester County Surrogate on March 7, 1907. Therein the testator *9 set up a trust from which his executors were directed to pay to his son, John T. Waring, Jr., and to others the income during his son's lifetime. He further provided that "as to the distribution of the capital of the said trust fund, upon the death of the said John, I direct the said trustees to pay the same over to the lawful descendants if any, of the said John, in equal shares,per stirpes and not per capita, and if there be no such descendants to the next of kin of the said John, according to the laws of the State of New York."
John T. Waring, Jr., died June 18, 1935, leaving a widow, Jessie T. Waring, but no descendants surviving. He also left three sisters, and certain nephews, grandnephews, nieces and grandnieces, as his only next of kin. Thereupon, the trustees petitioned for a final judicial settlement of their accounts and requested that the provisions of the will of John T. Waring, Sr., be construed so as to determine who were the distributees of the capital of the trust fund created for the benefit of the said son and the proportions thereof to which the various distributees were entitled. The Surrogate held that there was no vesting of the corpus of the trust until the death of the life beneficiary and that it should be distributed in accordance with the provisions of subdivision 4 of section 83 of the Decedent Estate Law (Cons. Laws, ch. 13) in force at the time of the death of the son, under which the widow should receive $10,000 plus one-half of the residue, and the surviving sisters and the descendants of two deceased sisters and of a deceased brother of the life beneficiary the balance. From the decree of the Surrogate the descendants of a deceased brother who would be entitled to one-sixth of the residue should the widow not inherit appealed to the Appellate Division, second department, where the decree was unanimously affirmed. The appeal of those distributees comes to us by permission of this court.
The testator provided that, upon the death of his son without descendants, the trustees should pay the corpus *10
of the trust to the "next of kin" of the son "according to the laws of the State of New York." The gift was to a definitely defined class whose membership as well as the extent and quality of their interest were to be determined by the laws in force defining membership in that class at the time of the son's death. (New York Life Ins. Trust Co. v. Winthrop,
The amendments are not retroactive. (Matter of Germaine,
Furthermore, by abolishing the distinction between "next of kin" and "heirs at law," the Legislature did not extend the class embraced within "next of kin" to include other than blood relatives. No such purpose or intent can be spelled out of the provisions of section 20 or from other provisions of the act. In addition to the provisions of section 81 of the Decedent Estate Law above quoted, that section, as amended by section 2 of chapter 174 of the Laws of 1930, also provided that "the determination of the degrees of consanguinity of distributees of real and personal property shall be uniform, and shall be in accordance with the rules as applied immediately before thetaking effect of this section to the determination of the next ofkin of an intestate leaving personal property." (Italics ours.) This is equivalent to saying that the next of kin class includes only blood relatives. That is what the law provided before September 1, 1930. What the Legislature did say was that when the expressions heirs, heirs at law, next of kin, or distributees are used in any statute affecting the descent of real property or the distribution of personal property where intestacy exists, no distinction between them may be recognized and descent of real property and distribution of personalty must be governed by the provisions of article 3 of the Decedent Estate Law, as amended by section 6 of chapter 229 of the Laws of 1929 and by section 2 of chapter 174 of the Laws of 1930, except as otherwise specifically provided by law. (Cf. Matter of Chalmers,
That result is in exact accord with the intent of the testator. John T. Waring, Sr., left a substantial estate and created trusts for his children other than his son John. His intent as to all those who should participate in the distribution of his estate is clear. With care and precision he provided that the bulk of the income from the trusts and the entire corpus of his estate should pass to his blood relatives. In the case of the trust to the son, he defined these blood relatives as the next of kin of the son. There is no meaning to be assigned to "next of kin" except the class constituting blood relatives. That is the primary signification of the expression (28 R.C.L. 254; Slosson v.Lynch, 43 Barb. 147; Tillman v. Davis,
Had the testator here said merely that the remainder should pass according to the laws of the State of New York in effect at the time of the death of the son, distribution *14 under the provisions of section 83, subdivision 4, of the Decedent Estate Law might have been made. He did not say so, nor did he intend to so provide, and the widow of John T. Waring, Jr., is not included as a subject of the testator's bounty.
The order of the Appellate Division and the decree of the Surrogate's Court should be reversed in so far only as the interests of the appellants are affected thereby, with costs in all courts to the appellants and to the trustees, payable out of the estate, and the matter remitted to the Surrogate's Court to proceed in accordance with this opinion.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly.