298 N.Y. 450 | NY | 1949
Albert 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 to account and for a construction of the testator's will to determine to whom and in what proportions the residue of the estate remaining 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 mynearest 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 equal 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 controverted, they having previously agreed among themselves upon a satisfactory division. The Surrogate, without the aid of extrinsic evidence but relying solely on the testamentary language, has found and decreed that, in the absence of words of gift "in praesenti" and the direction to the executor to pay and distribute, the remainder vested upon the death of the life tenant (Matter of Bostwick,
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 sense, including Ella Brady, the spouse of her deceased brother Michael Brady (Decedent Estate Law, §§ 47-c,
The testator directed his executor after the death of the life tenant to pay and distribute one half his estate "unto the nearest of kin of my wife" thereby indicating a gift to a class which could not very well be ascertained until the death of the wife. It was not until then that the remainder vested (Matter ofBostwick,
The Appellate Division interpreted the phrase "nearest of kin" as indicating intent to direct distribution to nearest in consanguinity, relying on Matter of Martin (
The rule of consanguinity followed by the English authorities and many of our sister States was rejected as inconsistent in New York as far back as Slosson v. Lynch (43 Barb. 147 [1864],supra), the principle of which was reaffirmed in New York LifeIns. Trust Co. v. Winthrop (
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. *458