In re the Estate of Nelson

74 A. 851, 9 Del. Ch. 1, 1909 Del. Ch. LEXIS 6

• Court: Court of Chancery of Delaware
• Decided: November 23, 1909
• Status: Published

Opinion

The Chancellor:

The facts in this cause sufficiently appear in the report of the learned Auditor, with some of whose conclusions the Court agrees, differing as to others. By his will probated in 1854, Robert Nelson, the testator, gave the residue of his estate to his wife, Margaret, for life, and then provided as follows:

“Item. I direct that after the decease of my said wife Margaret, all my real estate be sold at public sale in fee simple and the net proceeds of the sale thereof, together with the residue of my personal estate then remaining, shall be divided share and share alike between the children of my sisters, Hannah Thorn, Eliza Strawley, and Ellen Crowell, and the heirs and representatives of any such children who shall have died between the time of my decease and the time of such division or distribution to be entitled to such share or shares as their respective ancestors would have been entitled to have received if living. ”

His wife survived him and lived until September 27th, 1908. After her death, the administrator d. b. n. c. t. a. of Robert Nelson converted the property, real and personal, of the testator into money, and, being unable to acsertain the persons entitled, by authority of the Chancellor paid into Court the residuary estate of Robert Nelson and the parties claiming to be entitled have made their claims before the Auditor appointed for the purpose.

Without restating all the various contentions of the exceptants, which the Auditor has done in his report, the Court states the conclusions reached on the questions raised. At the death of the testator in 1854, there were living nine nephews and nieces of the testator, children of his three sisters, Hannah Thorn, Eliza Strawley and Ellen Colwell (called in the will Ellen Crowell), viz., three children of Hannah Thorn, one of Eliza Strawley and five of Ellen Colwell. Of these nine nephews and nieces only four survived the life tenant and are still living, viz., Hannah T. Schell, Sarah Staley, Emma Lackey and Theodore Colwell. One other nephew, Robert Thom, had three children; one of them, William, died before his father without children; and another of them, Catharine McNeal, died before her father leaving three children; and the other of them, Sarah MacMullen, is still living. One other niece, Elizabeth Winter-bottom, left a husband, who is still living, and three chileren still living. Another niece, Mary Chidester, left three children still living. One other niece, Elizabeth Bamholdt, was unmarried, left no children, or issue of deceased children, brother or sister, or issue of deceased brother or sister, or father, but her mother, Eliza Callahan, since deceased. One other nephew, William Thom, had five children; one of them, John Thom, died before his father, leaving no children; and another of them, Robert Joseph Thom, died before his father leaving two children now living. The Auditor found that the three children of William Thom, namely, Margaret Bailey, Ellen Boggs and Hannah HufEnickle, survived their father; but this is not the fact as to Ellen Boggs and Hannah HufEnickle, as appears by an agreement of counsel appearing for all the claimants. Ellen Boggs died before her father, William Thom,'leaving her husband, now living, and one child who ;is still living. Hannah HufEnickle also died before her father, William Thom, leaving three children, who are still living.

The conclusion of the Auditor that there was an equitable conversion by the terms of the will is correct, and as a consequence the subject-matter of the gift was personalty. There is no contention among the parties on this question. In re Stevenson’s Estate, 2 Del. Ch. 197.

The first question was as to the shares taken by the nine nephews and nieces, viz.: Whether the fund should be divided into three equal parts, one of them to be sub-divided between the three children of Hannah Thom, one to Elizabeth Bamholdt, and the other to be subdivided between the five children of Ellen Colwell; or whether the nine nephews and nieces constituted a class of nine, and the fund should be divided into nine primary shares. In other words, was the gift to the children of the sisters one per stirpes or per capita. The Auditor found that the latter conclusion was the right one, and in this the Court agrees. Whatever may be the decision of courts elsewhere, the decision of the Court of Errors and Appeals in Kean’s Lessee v. Roe, 2 Harr. 103, (1836) if applicable to the facts before this Court, is controlling, and that decision does clearly apply to the construction of Nelson’s will. The case was heard in the Court of Errors and Appeals upon a case stated reserved by the Superior Court, and was an action of ejectment brought by Matthew Kean to try the title to his share of the estate of Thomas J. McComb. By his will, made in 1813, Thomas J. McComb (omitting the irrelevant parts) gave to his brother James B. McComb one-third of his real estate for life, and then provided, as follows: “And upon his death to determine and go over as an executory devise in the manner following, that is to say, * * * the said third part to be equally divided between my sister Elizab eth and my said nephews and nieces, their heirs and assigns forever, as tenants in common, and not as joint tenants. ” By prior portions of his will he had mentioned certain nephews and nieces byname, viz., Joshua, Elizabeth, Jennet and Henry Clayton, children of a deceased sister, so that the words quoted above, “said nephews and nieces, ” necessarily meant these four named children of his deceased sister. The testator died in 1813 and left to survive him his brother, James B. McComb, his sister, Elizabeth, and the four nephews and nieces above named. Elizabeth, the testator’s sister, married Matthew Kean in the lifetime of James B. McComb, and had two children by him, Thomas and James M. Kean, and died in 1818 intestate, leaving to survive her her said husband and said two children, the two children being her only heirs at law. Both the children of Elizabeth Kean died in 1831 intestate, "unmarried and without issue, their father, Matthew Kean, being alive. In 1832 James B. McComb died intestate and without issue. At his death there were living Matthew Kean and^/Joshua, Elizabeth and Jennet Clayton; Henry Clayton, the other named nephew of the testator, having theretofore died intestate, unmarried and without issue. The question considered was whether Matthew Kean, upon the death of James B. McComb, became entitled to any and what interest in the real estate devised by Thomas J. McComb as above stated. Held: That Matthew Kean took and became entitled in and to an undivided one-fifth part or share of and in one-third part of the real estate, viz., one-fifth of the one-third part in which James B. McComb had a life estate. This result was obtained thus: (1) On the death of Elizabeth Kean, her contingent right or interest in the one-third devised to James B. McComb for life descended to her heirs at law, her two children, she having died intestate; that, on the death of one of the Kean children intestate and without issue, its entire interest passed to the child’s surviving brother; that upon the death of the surviving Kean child, intestate, un-« married and without issue, its interest passed according to the statute of descent in Delaware to its father, Matthew Kean; that thereby Matthew Kean acquired all the title and interest given by way of executory devise to his wife in one-third of the land; and that when subsequently the contingency happened, viz., the termination of the life estate of James B. McComb, then Matthew Kean had a legal right to claim as heir to his last surviving child such share of that one-third as his wife, if living, would have been entitled to. (2) The share of Elizabeth Kean was determined to be one-fifth of the one-third given to James B. McComb for life, she and her four named nephews and nieces sharing equally, that is, each one-fifth, they taking per capita and not per stirpes.

Respecting this second branch of that case, which bears on the first question considered by this Court, the Court there held that the gift to the nephews and nieces by name, as, “to my nephews and nieces, A., B., C. and D.,” was a gift of equal shares to them per capita. In this respect the facts were different from the Nelson will case, where the gift was to a class or classes, i. e., to the children.of A., B., and C., and if there were nothing else in the case it would not control the case under consideration. But the Court there applied another well-settled rule of construction to the words, “to be equally divided,” in McComb’s will, and held these words also established a gift per capita, and the rule was thus stated: “The settled legal construction of the words, equally to be divided, when used in a will is to cause an equal division of the property per capita and not per stirpes, whether the devisees be children or grandchildren, brothers or sisters and nephews and nieces, or strangers in blood to the testator. ” In support of its conclusion the Court cited several authorities directly in point, and refused to unsettle what it considered an established doctrine, and adopted a settled legal interpretation of the language used by the testator in that case, whatever his actual intention might have been.

There is, it is true, a difference in the language used in the McComb will and in that of Nelson, though in each there , was a life estate proceeding the gifts in question which were in remainder. In the former the gift in remainder was “to be equally divided between my sister Elizabeth and my said nephews and nieces;” the word “said” referring to a prior naming of the nephews and nieces. In the latter the gift in remainder was, the estate “shall be divided share and share alike between the children of my sisters, Hannah Thom, Eliza Strawley and Ellen Crowell. ” The Auditor found and this Court has found, no difference in principle between the two forms of expression. The words “to be divided equalfy” seem the exact equivalent of words directing that something “shall be divided share and share alike.” Any other conclusion would seem a quibble of words. In each, equality of share and interest is the intention. It could not be divided share and share alike without giving each the same, or like share, as the others. Another difference between the McComb and Nelson wills was that the beneficiaries in the former were “nephews and nieces” of the testator, and in the latter “children of my sisters, ” A.,B. andC. No inference of the intention of the testator Nelson can be drawn from the gift to children of sisters, meaning ex vi termini nephews and nieces, different from a gift to “nephews and nieces, ” who must be children of sisters. No cases were submitted, or have been found, or satisfactory reason given to this Court, to clearly indicate a real and controlling difference in principle between the legal effect of the language of the testators McComb and Nelson, and the decision of the Court in constming the former therefore controls this Court in construing the latter. It is well settled, too, as found by the Auditor, that those nine nephews and nieces of the testator living at the death of the testator, being children of the three named sisters of the testator, took vested estates and interests in the property bequeathed, each taking an undivided one-ninth share, subject to the life estate of the widow of the testator. These shares were subject to be diminished by additions to the class, viz., nephews and. nieces of the testator, children born to the three named sisters after the death of the testator and in the life of the life tenant. But in this case there were no such additions to the class. Kibler’s Adm’r. v. Whiteman, 2 Harr. 401; Conwell’s Adm’r. v. Heavilo’s Adm’r., 5 Harr. 296; Rubencane v. McKee, 6 Del. Ch. 40, 6 Atl. 639; In re George Stevenson’s Trusts, 2 Del. Ch. 197; Doe v. Girard, 1 Houst. 276, 287. The cases show that the Auditor was right in his conclusion that, but for the substitutionary clause in the Nelson will, the decisions above noted would control the interpretation of the Nelson will and lead to a conclusion that the estate should be divided into nine equal parts, and one part be payable- to each of the nine nephews and nieces, the heirs and representatives of such of them as were dead at the death of the life tenant taking the shares of the one or more so dying.

The second question considered was the destination of the shares of those of the nine nephews and nieces who died in the life of the life tenant. The learned Auditor treated these shares as vested interests, which was correct, and concluded that therefore, at the death of either of the nephews or nieces before the life tenant, that share passed to the executor or administrator of the one so dying. In this latter conclusion this Court holds that he erred, and that the substitutional clause effected a different result. The learned Auditor, for whose opinion I have respect, concludes that the substitutionary clause was precautionary to prevent a lapse, the person who drafted the will of Robert Nelson dated in 1854 not having had the benefit of the decision on the Heavilo will, which, though decided in 1850, was not reported until 1856, and of the McKnight will, which was not decided until 1886. But it should be noted that in the Heavilo Will Case the Court only applied rules of law theretofore well settled; and further, it could very well be argued that if the law was so settled, as above stated, then there must have been some reason for the gift by way of substitution other than that it was necessary for the purpose of preventing a lapse of the share of a legatee who survived the testator and died in the life of the life tenant. Without the substitutionary clause the shares of the nephews and nieces alive at the death of the testator and dying in life of the life tenant would have been devisable or assignable by such nephews or nieces in their lifetime,and at their death would ' go to their executors or administrators, as the case may be. The Auditor says thehubstitutionary1 clause has the same effect. Then what reason was there for the clause? Some further reason for it must be found. The gift to “heirs and representatives” of those nephews and nieces who should die after the death of the testator and in life of the life tenant was not surplusage, or used to prevent survivorship among the nephews and nieces, or to prevent a lapse. Each child of the three named sisters of the testator living at the death of the testator took a vested interest in remainder, and, if there had been no substitutional clause, the share of any one dying in the life of the life tenant would belong to his executor or administrator. Distinct authorities in Delaware for this are: Conwell v. Heavilo, 5 Harr. 296; Kibler’s Adm’r. v. Whiteman, 2 Harr. 401. So too, any child of either of the three named sisters of the testator who died in the life of the testator would be excluded from the class. See Rubencane v. McKee, 6 Del. Ch. 40, 6 Atl. 639.

This Court concludes that the share- of any of the nine nephews and nieces who died in the life of the life tenant passed because of the substitutional clause to such persons, as on a proper construction of the words “heirs and representatives ” would be so entitled, in view of the character of the subject-matter of the gift. That there was in the will a substitution of their “heirs and representatives ’’for those nephews and nieces who survived the testator and died in the life of the life tenant is so clear that it need not be further elborated. This is demonstrated when the words of the will are paraphrased so as to read thus: I give all my estate to my wife for life, and at her death to be equally divided between the children of my three sisters, A., B. and C., and in case any of such children shall die between the time of my decease and the time of such division or distribution, I give to the heirs and representatives of such children so dying, such share or shares as their respective ancestors would have been entitled to have received if living. This is a clear case,therefore, of substitution by the testator of “heirs and representatives” for nephews and nieces who survive the testator and die before the life tenant, and no authorities need be cited to fortify this plainly indicated result. The effect of such a substitutional clause is considered in the latter part of this opinion.

The third question was to the persons who answer the description of “heirs and representatives,” considering the subject-matter of the gift to be personal property. In view of the similarity of the Delaware statutes of descent and distribution, it is perhaps unimportant to discuss this branch at length, for under the facts of this case the same persons would take whichever statute is applied. If the word “heirs” means strictly heirs at law, viz., those who under the Delaware statute of descents take the interest of deceased nephews and nieces, the same persons would take as distributees. As appears later in this opinion, the word “heirs” must mean the same persons as ‘1 representatives, ’ ’ they being used together, so that the same result is obtained. Even the word “heirs,” when used in a substitutional gift concerning personalty, is held to mean distributees,' i. e., the persons entitled to the personal estate of the deceased legatee for whom substitution is made. The rule seems to be so well settled that reference need only be made to the authority of Hawkins on Wills, § 92, and cases there cited:

“A bequest of personal estate to ‘A. or his heirs’ is construed as a gift by way of substitution to the heirs in the event of the death of A. before the period of distribution. And the word ‘heirs’ is held to mean the persons who would be entitled to the personal «estate of A. by virtue of the statute of distribution if he had died intestate. The rule applies whether the gift be immediate, as to A. or his heirs, or in remainder, as to A. for life and after his decease to B. or his heirs. And the rule applies if the gift be to several, as to A. and B. or their heirs, or to a class, as to the children of A. or their heirs.”

It does not seem necessary to refer to the many cases cited by this master hand at formulating rules for the construction of wills, and cited by counsel here in their briefs. The above-stated rule is well established and applicable here. Moreover, there is in the will ample evidence that the intention of the testator was in accord with the rule. The word “representatives” must mean the same as heirs, and, being used with the word “heirs,” should be held,' like the latter, in this substitutional gift to mean next of kin or distributees. Taken by itself, the word “representative” prima facie means executor or administrator. Hawkins on Wills, 107. But the learned author says that the role is not a strong one and esaily yields where the will indicates a different intention.- In Robert Nelson’s will there is expressed a clear intention that by “representatives” he meant next of kin or distributees, and not executors. (1) Being used with “heirs,” it means the same as “heirs,” which means next of kin or distributees. (2) It could not mean “executors,” for this the substitutional gift would be to distributees and executors—a manifestly impossible conclusion. (3) By the use of the word “ancestors,” executors are excluded, for the “representatives” of deceased nephews and nieces are to take the shares which their “ancestors" would have taken if living, and a decedent is not an ancestor of an executor; the word “ancestor” importing blood relationship or kinship, and not an official relationship only.

The fourth question considered was whether the shares of the nephews or nieces were devisable. No evidence is given of any attempt by any of them to assign their interests, but one of them, William Thom, who died in the life of the life tenant, made a will containing a general residuary devise without any reference to any interest in the estate of his uncle, Robert Nelson. The general role as to the devisability of future interests was considered in this State in the cases of Kean’s Lessee v. Roe, heretofore cited, and Gray v. Corbit, 4 Del. Ch. 135, and 4 Del. Ch. 357, and in the United States District Court for the District of Delaware in the case of In re Twaddell (D. C. of Del.) 110 Fed. 145, a decision of the present Judge Bradford. In all three it was held that all vested and contingent remainders, and all executory devises and all possibilities coupled with an interest, where the person to take is certain, may be assigned or devised and are transmissible to the representatives of the devisee if he die before the contingency happens, and when the contingency does happen they vest in the representatives of the real or personal estate as the case may be; otherwise if the object of the limitation over is not ascertained or fixed, or the persons to whom the estate is to pass are not ascertained until the contingency does happen. In the case of Kean’s Lessee v. Roe, the Court thus states the rule:

*' Contingent as well as vested interests in either real or personal estate, and also executory devises, and all possibilities coupled with an interest, where the person to take is certain, may be assigned or devised, and are transmissible to the representatives of the devisee, if he dies before the contingency happens; and when the contingency does happen, they vest in the representative of the real or personal estate as the case may be. It is otherwise, if the object of the limitation over is not ascertained or fixed; or the persons to whom the estate is to pass are not ascertainable until the contingency does happen; as in the case of a limitation to the right heirs of a living person; for during the life of such person, it cannot be known who his heirs will be, nor in whom the interest is.”

But in neither of these cases was there a substitutionary gift under consideration, and this difference between them and the case at bar is fundamental and leads to different results. It is one of the necessary and logical features of a substitutional gift that the first taker cannot by devising or assigning his interest before the contingency happens cut out his substitute, who takes not through or from the first taker, but in his place and from the testator directly. Nephews and nieces who survived the testator and died before the life tenant dropped out entirely, and their ‘ ‘ heirs and representatives ’ ’ respectively took their places. Inasmuch as the shares of nephews and nieces dying before the life tenant were divested, they had no power of disposition by will. The foregoing is not only the reasonable but also the established rule. Of many cases that might be cited, the following will suffice: In Hewey v. McLaughlin, 1 Price 264, there was a bequest of personal estate to A. for life, with remainder to her three children in equal shares, and, in case of the death of either or any of them, the share of those so dying to go to their children. It was held to be a vested interest subject to be divested if either of the legatees in remainder died during the life of the particular tenant, and that in such event his share became the property of his children and not of his personal representative. In Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334, there was a gift to trustees to pay income to the testator’s adopted son for life with remainder in fee to his wife and children “share and share alike, the issue of such as may have died to take the share to which her or their parents would if living have been entitled. ” One of the persons entitled in remainder died before the life tenant. Held, her share was divested and not vested in her issue, and that her share di'd not pass under her will. In Shaw v. Eckley, 169 Mass. 119, 47 N.E. 609, property was given in trust, the net income to sons for life and on the decease of his son D. the principal should be paid to D’s. son if D., Jr., be living, and if dead to the testator’s daughter and his other sons to be equally divided among them, “the issue of a deceased child, other than the issue if any of my said son D. taking their parents’ share by right of representation.!’ D., Jr., died in the life of his father. Held, that the interests of the sons and daughters of the testatrix other than D. in remainder after the life estate vested at the death of testatrix, and not at the death of the grandson D.; also, that the interest of a child that died before the interest vested in possession passed to his or her issue. The substitutional clause was held to mean that the interest of a son or daughter should determine or be divested in favor of issue in case of his or her decease, leaving issue, before the remainder vested in possession; and that the death of D., Jr., was not the date at which the remainder would vest in interest or in possession". The only change which occurred at that time was that the remainder, which before was contingent, became absolute in the daughter and other sons of the testator, subject only to be divested in the case of any of them who should die leaving issue before it was vested in possession. Other authorities in point are Flannagan v. Staples, 28 App. Div. (N. Y.) 319, 51 N. Y. Supp. 10; Hutchinson v. Exton, 53 N. J. Eq. 688, 32 Atl. 682, 35 Atl. 1130.

The fifth question considered was when the persons to constitute the class of “heirs and representatives” of nephews and nieces dying before the life tenant was to be ascertained. The question is important, for it must be determined, for instance, whether Elizabeth Barnholdt’s share, which under the conclusion hereinbefore stated passed to her mother, Eliza Callahan, passed on to Eliza Callahan’s next of kin or distributees, or to the executor under her will. So also as to the shares of William Thom and Robert Thom, both of whom left grandchildren, living at his death, children of deceased children, and the the question to be settled is whether the interest of the children of William Thorn belongs to their executors or administrators or was passed on to the grandchildren of William Thom. The general rule is that under a substitutional bequest to the ‘' heirs, ’ ’ “next of kin,” “relatives,” etc., the persons to take are to be ascertained at the death of the persons whose “heirs,” “next of kin, ” etc., are spoken of, and not at the period of distribution. Hawkins on Wills, 94, 99, 104. Hawkins applies the principle to a concrete case, thus: “If the gift be to B. for life, remainder to A., or his heirs, and A. dies in the lifetime of B., the persons to take are those who would be entitled to the personal estate of A., by virtue of the statute of distribution at his death and not at the death of B. ” This rule is therefore applicable to all cases of substitutional gifts. When, however, the language of the will is such as to show that the testator intended the next of kin to be ascertained at the period of distribution, the intent will control. For instance, if there be a gift to B. for life and at his death to the persons who shall then be the next of kin of A., the next of kin of A. were to be ascetrained as at the period of distribution, i. e., the death of B. The case of Wharton v. Barker, 4 K. & J. 483, was such a case, and Vice Chancellor Wood held there that the use of the word1 ‘ then ”, treated as an adverb of time, showed clearly the intention of the testator to fix the class to consist of those persons who on the death of the life tenant were the next of kin of the testator’s wife, who corresponded with B. in the case supposed above. The decision in Wharton v. Barker furnishes rules of ascertainment of the persons entitled in the Nelson case. There a residue consisting of mixed estate was given in trust as to one moiety for his daughter Mary for life, with remainder to her children with cross-remainder, and in case both of said daughters died without children, or, leaving such, all should die under 21 years without issue, then it was directed that payment be made of one moeity “unto the person or persons that shall then be considered as my next of kin and personal representative or representatives agreeable to the order of the statute of distribution and the other moiety unto the person or persons that shall then be the next of kin and personal representative or personal representatives of my late wife Sarah, agreeable to the order of the statute of distribution.” The testator died in 1825, and at the date of his will, as also at his death, he had two children only, Mary and Sarah. Sarah died in 1828 unmarried, and Mary in 1851 without having had any issue, but her husband, Litler, survived her. The Court held that the persons entitled to the second moiety were those who at the death of the surviving daughter were the next of kin, according to the statute, of the testator’s deceased wife, and, having regard to the juxtaposition of the bequests, that the persons entitled to the first moiety were those who at the same period were the next of kin of the testator according to the statute. As to the first moiety, a gift to his own next of kin, Sarah having died before Mary, and Litler, the husband of the latter being the personal representative of both, as their executors or administrators, at the death of the surviving daughter Mary, he took as such personal representative of both sisters the whole of that moiety. As to the second moiety, a gift to the next of kin of the testator’s deceased wife, Sarah, living at her death, it was found that A. and B. were her next of kin at the death of the surviving daughter and took her share. If either A. or B. had been dead at the death of the surviving daughter, that second moiety would have gone to the executors or administrators of A. or B., respectively.

Applying the principles of this case, which followed worthy precedents, and has been followed since, we have these results in construing Robert Nelson’s will: There being a substitutional gift to the heirs and representatives of nephews and nieces who died between the time of the testator’s death and the time of division or distribution, viz., the death of the testator’s wife, the persons then (i. e., at the death of the life tenant) to take as heirs and representatives of nephews and nieces then dead are the persons answering the description of heirs and representatives of such- nephews and nieces at the death of each nephew or niece. By “heirs and representatives,” in this connection, is meant, not executors or administrators of nephews and nieces dead at the time of the death of the life tenant, but those persons who at the death of each nephew and niece so dying were entitled to take the share of such nephew or niece as personalty, according to the statute of distribution of the State of Delaware. In view of the similarity of the statutes of descent of intestate real estate and the statute of distribution of personalty, there Is, as hereinbefore pointed out, no difference of result whether the word “heirs” is given a technical meaning as “heirs at law, ” or is given a meaning to correspond with the meaning of the word “representatives,” the other descriptive word used by the testator. Therefore both words may be given the meaning of next of kin or distributees, the subject-matter of the bequest being personalty and not realty. In this connection it should be noted, of course, that, as hereinbefore held, neither of the nephews and nieces dying in the life of the testator had a devisable interest, there being a substitutional gift to their heirs and representatives respectively.

The result of this conclusion, applied to the facts here, is that the share of each of the nine nephews and nieces who died before the life tenant, Robert Nelson’s widow, passed to their respective distributees as of the time of their decease, respectively, and, as to the shares of such distributees as survived their immediate ancestor (nephew or niece of the testator) and died before the life tenant, such shares passed to their respective executors or administrators. This is subject to the rights, if any, of the husbands and wives of such deceased nephews and nieces alive at the death of their respective spouses, which question will be considered later on in this opinion. For instance, inasmuch as at William Thom’s death he left four children, three of whom died in the life of the life tenant, the shares of these three children go at the death of the life tenant to their respective executors or administrators, and not to their children. So also the share of Elizabeth Bamholdt passed at the death of the life tenant to the executor or administrator of Elizabeth Barnholdt’s mother, Eliza Callahan, and not to Eliza Callahan’s next of kin, her brothers and sisters and issue of her deceased brothers and sisters.

The sixth question considered was whether the widow of William Thom, she being still alive, or the surviving husband of Elizabeth Winterbottom, he being still alive, are entitled to any share in the trust estate. Independent of the effect of language in a will showing in a controlling way the testator’s intention, the authorities are conflicting upon the question whether a husband or a wife come within the description of “heirs and representatives” where the subject-matter of the bequest is personalty. In some states the word “heirs,” as applied to succession of personal estate, means “next of kin,” and the words “next of kin” denote blood relationship, and therefore excludes a widow and husband. The courts of other states and the English cases generally hold that the word means all the persons who take personalty under the statute of distribution, as in case of intestacy, including therefore a surviving husband and wife. In the case of Tillman v. Davis, 95 N. Y. 17, the cases on both sides are referred to and the conflicting character of the English decisions commented on. No attempt will be made to reconcile the cases or decide which class- of cases should be followed, because there is in the will such evidence of intention as settles the proper interpretation of these words. There is in Delaware no controlling decision. The case of Mason v. Baily, 6 Del. Ch. 129, 14 Atl. 309, does not distinctly apply. There Chancellor Saulsbury held that a surviving husband was not entitled to a share or interest in a fund consisting of personalty only given to the “right heirs” of his wife in remainder after a life estate to her. But that decision, though illuminating, does not apply in construing the Nelson will, for in the case cited there was a direct gift to the “right heirs, ” and the Court very properly there held that those persons who answered that description were entitled as personae designatae. The case of DeBeauvoir v. De Beauvoir, 3 H. L. Cas. 524, relied on by the Court there, was also a direct gift, and not a substitutional gift, as was the gift in Robert Nelson’s will. The administrator of the life tenant in Mason v. Bailey was also excluded from participation because not her “right heir,” or personam designatum. As Chancellor Saulsbury stated (page 148 of 6 Del. Ch., page 317 of 14 Atl.), there are a considerable number of cases of high authority which hold that, where the gift is to the heir or heirs by way of substitution for the original or preceding legatee, the word “heirs” is construed to mean distributees, if the subject-matter be personal estate, and therefore a surviving husband or wife of the first or proceeding legatee would receive the shares given them as in the case of intestacy.

But the testamentary intention of Robert Nelson was that the word “heirs and representatives” should mean next of kin, and not distributees. This is quite evident from the use of the word “ancestors.” The heirs and representatives of such nephews and nieces as died after the testator’s death and before the life tenant were to take such share or shares o's their respective ancestors would have been entitled to receive if living. No one comes within the definition of “heirs and representatives” of nephews and nieces who cannot claim a nephew or niece as an ancestor. This means that the substitute must be of the blood of the proceeding legatee. Neither husband nor wife of a nephew or niece of the testator were his next of kin or of blood relationship, and therefore they must be excluded in seeking those indicated by “heirs and representatives” of nephew or niece surviving the testator and not the life tenant. It follows, then, that neither William Thom’s widow nor Elizabeth Winter-bottom’s surviving husband are entitled to any share of the fund.

It is unnecessary to consider whether husbands and wives of children of nephews and nieces dying before the life tenant take any share from their deceased spouses, because the shares of such children go to their executors or administrators, e. g., Margaret Bailey survived her father, William Thorn, and died before Nelson’s widow, leaving a husband still alive, but her share goes to her executor or administrator immediately; and the same is true of Ellen Boggs, also a child of Willliam Thom.

The conclusions finally reached by the Court are these:

1. That the learned Auditor was right in holding that the gift in remainder to the children of the testator’s three sisters was a gift to those nine nephews and nieces, children of the three named sisters, and that they took at the death of the testator each an undivided one7ninth interest in the residuary estate as personal property; the gift being to a class the members of which, living at the death of the testator, took per capita and not per stirpes, subject to the diminution of the shares by adding to the class of the nephews and nieces those children of the three named sisters who should be born after the death of the testator and in the life of the life tenant, but not subject to be increased by the death of any of such nephews or nieces after the death of the testator and during the life of the life tenant. The decision of the Court of Errors and Appeals in the Kean Case and other cases in Delaware control this Court in the case under consideration.

2. That the learned Auditor erred in allowing to the executors and administrators of such of the nine nephews and nieces as survived the testator and died in the life of the life tenant payment of the one-ninth share of each of those so dying, for the gift to the heirs and representatives of such nephews and nieces so dying was a substitutional gift, and upon the death of either of the nephews or nieces in the life of the life tenant, the share which the one so dying would have taken if living at the death of the life tenant passed by substitution to the person or persons who should be determined to be the heirs and representatives of the ones so dying, upon a proper construction of the controlling words of the will.

3. That the gift in remainder, being a gift of personalty because of the equitable and actual conversion of all the estate real and personal into money, was a gift by substitution to the next of kin or distributees of those of the nine nephews and nieces who died in the life of the life tenant, the words ‘' heirs and representatives ’ ’ being so construed.

4. That inasmuch as the persons to take the estate in remainder were not determinable until the expiration of the life estate by reason of the substitutional clause, the interests of those of the nine nephews and nieces who died before the life tenant were not devisable by them and did not pass under the will of either of them; but that each nephew and niece became a separate stirps, through whom, but not from whom, the shares which each would have been entitled on surviving' the life tenant passed to their next of kin or distributees respectively as though that one or more so dying had been possessed, at the time of his or her death, with a sum equal to an undivided one-ninth share of the estate of Robert Nelson as personalty. It results from this conclusion that the will off William Thorn, the son of Hannah Thorn, a sister of Robert Nelson, did not pass his interest or estate to the residuary legatee therein, or otherwise affect the transmission of his share to those who were held to be his heirs and representatives, meaning thereby his next of kin or distributees.

5. That the persons to take as “heirs and representatives” of each of the four nephews and nieces who survived the testator, and died in the life of the life tenant, are to be ascertained as of the time of the death of each nephew and niece respectively; and the persons so to take are those persons who would then have been entitled under the statute of distribution in Delaware to the distributive balance of the personal estate of each nephew or niece so dying; and in case any person who would then have been entitled, if then living, as heir and representative of a nephew or niece, be dead at the date of the distribution or division, viz., at the death of the life tenant, the share of the one so dying would now be payable to his or her executor or administrator and not to his or her children or next of kin. An executor or administrator so taking would not take as an “heir or representative” of a nephew or niece, but as the representative of an “heir or representative” of a nephew or niece.

6. That if any of the nine nephews or nieces left to survive them a husband or wife now living, then that they, the husband or wife, would not take as heirs or representatives of such nephew or niece the share to which they would have been entitled, or any portion thereof.

Applying the principles set forth in the foregoing conclusions, we have the following results:

The whole fund is to be divided into 216 parts.

William Thorn’s interest passed by substitution, as follows: Six parts to the administrator of Margaret Bailey (a child of William Thorn), who died after her father; six parts to Emma Boggs, only child of Ellen Boggs ( a child of William Thorn), the mother having died before her father; three parts each to William J. Thorn and Catharine Thorn, only children of Robert Joseph Thorn (a child of William Thorn), their father having died before his father; and two parts each to William Huffnickle, Charles Huffnickle and John Huffnickle, children of Hannah Huffnickle (a child of William Thom), the mother having died before her father.

Robert Thom’s one-ninth passed to his two daughters, Sarah and Catharine. Sarah MacMullen, being still alive, is therefore entitled to twelve of said parts. Catharine McNeal having died before her father, her twelve parts are to be divided between her three children, Lizzie McN. Murray, Robert McNeal and Ellen McNeal, each of the latter taking four of said parts.

Elizabeth Barnholdt’s one-ninth share passed to her mother, Eliza Callahan. Eliza Callahan survived her daughter, and, having died before the life tenant, the executor or administrator of Eliza Callahan is entitled to her share, being twenty-four of said parts.

Elizabeth Winterbottom’s one-ninth passed to her three children, John, William and Percy, all of whom are still alive and each entitled to eight of said parts.

Mary Chidester’s one-ninth passed to her three children, Ella Royer, William Chidester and Samuel Chidester, all of whom are now living and each entitled to eight of said parts.

Hannah T. Schell, Sarah Staley, Emma Lackey and Theodore Colwell are each entitled to twenty-four of said parts.

Let an decree be entered accordingly.