Cushman v. Horton

4 Thomp. & Cook 103, 8 N.Y. Sup. Ct. 601

• Court: New York Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinion

Mullin, P. J.

When land is devised to a person and his heirs, or to the heirs of a person named, the word “heirs” must be construed to embrace those only who are heirs, in the strict legal sense of the term, unless there is something on the face of the will to show that the word was used by the testator in a more general and enlarged sense. Heard v. Horton, 1 Denio, 165.

But when the bequest is of-personal property then the word “heirs” may be construed to mean children or next of kin. 3 Red-field on Wills, 385 to 391; Wright v. Trustees of Methodist Episcopal Church, 1 Hoffman, 303, and cases collated at 313, etc.

The word “heir” was used by the testator in this case in the sense of “ next of kin,” and the decision of the surrogate must be revoked and the proceedings remitted, with instructions to enter an order that the executor pay to the appellants the amount of the legacy given by the will to Polly Carter, with costs to the appellants to be paid out of the estate of testator.

Ordered accordingly.