30 Del. Ch. 144 | New York Court of Chancery | 1947
Edgar M. Hoopes, the testator, died May 21, 1916, leaving a will which was duly pro
“* * * be distributed in the same manner as hereinafter provided for the remainder of my trust estate.”
The will then directed
“the remainder of my said trust estate shall be divided into five equal shares, and I direct my said trustee to hold one of the said equal shares for the benefit of each of my children, each to receive the income from his or her respective share for and during the term of his or her natural life.”
Upon the death of Elizabeth L. Hoopes, should any of the testator’s children be dead leaving issue, they were to take their parents’ share of the corpus free of the trust, or should any of his children then be dead without issue, the share of any such deceased child was to be added to the share held in trust
“* * * for the benefit of my remaining children, or for the
The sixth paragraph of the 9th item of the will further provides:
“Upon the death of any of my said children after the death of my wife, I direct my said trustee to pay over absolutely, and free and discharged from any trust, unto his, her or their issue, the principal or corpus of my said trust estate representing the share of the one so dying, or failing issue, then to pay over said principal or corpus unto his, her or their next of kin under the intestate laws of the State of Delaware.”
Cora M. Hoopes died November 9th, 1920, and Elizabeth L. Hoopes died February 19, 1921. Joseph M. Hoopes, William D. Hoopes, Elsie Hoopes Corning, Edgar M. Hoopes, Jr., and Mildred Hoopes Morris, the testator’s children, survived him and also survived his widow. Edgar M. Hoopes, Jr., died November 20, 1931, leaving three children, Richard Osborne Hoopes, Francis Bain Hoopes and Edgar M. Hoopes, 3rd; Richard died June 11, 1942, unmarried and without issue. Mildred Hoopes Morris, a daughter of the testator, died November 4, 1946, leaving no issue, but Benjamin C. Morris, her husband, survived her.
By an assignment dated April 2, 1947, William D. Hoopes, for a valuable consideration, transferred to the intervening defendants his entire interest in the trust fund, including any share that he might have in that part on which Mildred Hoopes Morris had received the income during her lifetime.
The testator’s will provides that upon the death of any of his children, without issue, after the death of his wife, the share in the fund of the one so dying is to be paid “to his, her or their next of kin under the intestate laws of the State of Delaware.” That share never belonged to
The question for determination, therefore, is who are the “next of kin under the intestate laws of the State of Delaware” of Mildred Hoopes Morris, deceased. Because of the reference to the intestate laws, Benjamin C. Morris claims the entire fund on which his wife had received the income during her lifetime. On the other hand, two of the surviving children of the testator and the children of a deceased son, Edgar M. Hoopes, Jr., as well as the intervening defendants (assignees of William D. Hoopes) deny that Benjamin C. Morris has any interest whatever in that fund.
It has been held in this State that the literal and primary meaning of the words “next of kin,” standing alone, is nearest blood relatives. In re Smith’s Estate, 16 Del. Ch. 272, 145 A. 671; see also Garrick v. Lord Camden, 14 Ves. 372; Hawkins on Wills, 97; 2 Schouler on Wills, Ex’rs. & Admrs., (6th ed.) § 987. In appropriate cases, the context of the will may, however, affect their ordinary meaning. In re Smith’s Estate, supra; Garrick v. Lord Camden, supra; see also Rhoads v. McFarland, 28 Del. Ch. 232, 40 A. 2d 542. In this case, the accompanying words “under the intestate laws of the State of Delaware,” therefore, somewhat change the ordinary meaning of the phrase “next of kin.” and justify the conclusion that the blood relatives included in the statute of distribution, § 3847, Rev. Code 1935, were intended to take the substituted gift because of the death of Mildred Hoopes Morris without issue, after the death of the testator’s widow. In re Smith’s Estate, supra. The statute not only makes some changes in the common law rules with respect to the rights of such relatives in intestate property (In re Smith’s Estate, supra; Schouler on Wills, etc., § 987), but also contains the following proviso:
*149 “* * * that if the intestate be a married woman at the time of her death, if such married woman shall leave no children, nor the descendants of such living, the husband shall be entitled to such personal estate absolutely.”
Relying on this statutory provision, Benjamin C. Morris claims that the word “kin,” when used in connection with the phrase “under the intestate laws of the State of Delaware” was intended to have a popular and non-technical meaning. He says that the testator had exhausted his specific desires with respect to the beneficiaries of his property, and by the use of the language in question merely intended that the law should take its course. Some of the modern cases sustain that contention. In re Young’s Estate, 113 N. J. Eq. 233, 166 A. 159; Francisco v. Citizens Trust Co., 132 N. J. Eq. 597, 29 A. 2d 320; In re West’s Estate, 214 Pa. 35, 63 A. 407. But a surviving husband is not a blood relative of his wife, and under the law of this State, in the absence of something to indicate that the word “kin” in referring to the statute was intended to be used in a broad and liberal sense, it must be given its ordinary meaning. In re Smith’s Estate, supra; Magee, Adm’r., v. Chambers, et al., 17 Del. Ch. 45, 147 A. 306; Schouler on Wills, etc., § 987; Hawkins on Wills, 97; 59 A.L.R. 1410; see also Web. Inter. Diet. (2d. Ed. Unabridg.)—“Next of kin.” Mason v. Baity, 6 Del. Ch. 129, 14 A. 309, does not lay down any different rule, though there was some discussion of the general question. In the Smith case, the testator’s will contained quite similar provisions. He created a trust and directed the income therefrom to be paid to two persons for life. Upon the death of the survivor the trustee was directed to divide the trust estate and to pay an equal share thereof to each of his five sons. If any of them were then dead leaving issue such issue was to take the parent’s share. If any had died without leaving issue, the trustee was “then to pay over the share of the son so dying unto his next of kin according to the statute of distribution of the State of Delaware.” Two of the testator’s sons predeceased the life tenants, but left no issue. Both, however, left widows
It is, at least, tacitly conceded that on the happening of any of the contingencies before the death of the testator’s widow, provided for in the 9th item, only blood relatives were to participate in the trust fund, and I do not find anything in the context of the will which changes that primary intent or gives the words “next of kin” the broad meaning relied on by Benjamin C. Morris.
The fund on which Mildred Hoopes Morris received the income during her lifetime is, therefore, distributable, clear of the trust, as follows: one-fourth to Joseph M. Hoopes, one-fourth to Elsie Hoopes Corning, one-fourth to Francis Bain Hoopes and Edgar M. Hoopes, 3rd, the surviving children of Edgar M. Hoopes, Jr., and the remaining one-fourth to the assignees of William D. Hoopes.
A decree will be entered in accordance with this opinion.