Vann, J.
The appellants claim that the testator is presumed to have used the words “ heirs-at-law ” in their strict and prnnary acceptation as
descriptio personowum,
and that the context, “in accordance with the laws of the state of Sew York,” determines the method of division and indicates an intention that the estate should be divided
per stirpes
among those who, as his heirs-at-law, would have succeeded to his real estate if he had left any and had died intestate.
The respondents, aside from the executors, who are apparently neutral in this controversy, claim that the testator used the words “heirs-at-law” according to their common acceptation, to denote the class who receive the property of deceased persons; that the language of the will indicates that he owned real property, at its date, and of the codicil, that he contemplated owning real estate at the time of his death, and that by the direction to divide his property “ in accordance with the laws of the state of New York applicable to persons who die intestate,” he meant that his real estate should be divided according to the Statute of Descents, and that his personal property should be divided according to the Statute of Distributions.
The question presented, although important, is so narrow as to greatly restrict discussion, so far as it bears directly upon the point involved. It depends upon the intention of the testator, which is to be gathered from the few words used by him in relation to the subject, considered, if their meaning is doubtful, in the light of the circumstances surrounding him when he used them. (4 Kent’s Com. 535.) One object that he had in making a will was to avoid the appointment of administrators and to relieve those who should succeed to his estate from the heavy burden of furnishing bail to the amount
of nearly half a million of dollars. Prominence was given to this feature in both the will and codicil, and in the latter, for further ease and convenience in settling his estate, he authorized his executors to sell and convey any real property of which he might die possessed. The unfortunate situation of one of his relatives, who would have been entitled to letters of administration if he had died intestate, in connection with the other circumstances, may have made this his sole object in making a will. (4 E. S. p. 2552, §§ 27, 28 [8th ed.].) With what intent did the testator direct that his estate should be divided among his heirs-at-law, in accordance with the laws of the state of New York applicable to persons who die intestate ? It is to be observed that he directed that his estate should be “ divided ” without using any other word importing a gift, devise or bequest. This tends to confirm the theory, already suggested, that he intended to simply appoint executors to make the distribution, and to leave the distributees and the proportions to be determined by law. At the date of his will his heirs-at-law and next of kin were the same persons, as John Edgar Oorlies, the father of the appellants, was then living. It does not appear whether at that time he owned real estate or not, except as a presumption may arise from his general reference to his estate as composed of both real and personal property. It does not appear that he owned real estate at the date of his codicil, except as a like presumption may arise from the language used by him in authorizing his executors to sell and convey. While he owned no realty at the time of his death, the will and codicil each speaks, as to existing facts, with reference to the date when it was written. It is clear, if he did not own real estate when he made the will or codicil, that he expected to own some at the date of his death, and lfis use of the word “ heirs ” is to be considered in the light of that fact. While technical words in a will, when uncontrolled by the context, are presumed to have been used in their teclmical sense, ■still the context may overcome the presumption when it appears thereby, and from extraneous facts of the kind already alluded to, that the testator used the words in their common
and popular sense. The context in the case in hand shows that the estate was to be divided in accordance with the laws of the state of Hew York applicable to persons who-die intestate. The use of the words “ heirs-at-law ” in such a connection indicates, as we think, the legal heirs, in the sense of persons who would legally succeed to the property in case of intestacy, according to its nature or quality, the heirs-at-law taking the realty and the next of kin the personalty. The cardinal idea seems to be that the division should be made in accordance with the statute in case of intestacy. This, as was-said by the learned General Term, seems to be “the plain import of the language used by the testator, * * * giving to the persons forming each of these classes whatever of the estate would go to them under the laws of the state. * * * As already suggested, there is nothing to indicate any other purpose. It is precisely as if the testator had said, £ I do not intend that there shall be any dispute over my estate. I mean to declare that the persons who are recognized by the law of the state of Hew York as entitled to a portion of it shall have it to the extent that the law declares. My real estate shall be divided amongst those to whom it would descend, and my personal estate shall be distributed between those who would be entitled to it, just as if no will had been made. And I make this will only for the purpose of securing the co-operatian of the executors whom I have named to take charge of my estate and protect it.’ ”
This construction is in conflict with no decision of this court to which our attention has been called, and it is in accordance-with the recent case of
Woodward
v.
James
(115 N. Y. 346),, which we regard as controlling. In that case the testator gave to his wife one-half the income from all his property of every kind, and the use of certain real estate during her life, and some specific personal property absolutely. He gave the remainder of the income to his “ legal heirs ” during the life of' his Wife, and upon her death he gave the “ reversion and
ownership,T
of all his property to his “ legal heirs,” except that in case any of Ins “ legal heirs ” should attempt in any manner to interfere
with or restrain his wife in the use and enjoyment of the property, such one of his “ legal heirs ” was to be forever debarred from any interest in his estate, and the share that otherwise would have gone to him or her was to be divided among the “ remaining heirs, according to law.” He left a brother, two half-sisters and nine nephews and nieces, the children of a brother, a half-brother and a half-sister, respectively, deceased, and the plaintiff, a grandchild of a deceased brother. It was held that the words “ legal heirs,” as used in the will, meant those who would take in case of intestacy and in the proportions prescribed; that the remaindermen, therefore, took
per stirpes,
and not
per capita,
and as, under the Statute of Distributions, representation goes no further than brothers’ and sisters’ children, and the rule of intestacy applies to the quantity of interest to be taken, the plaintiff had no interest in the personal estate. We are unable to distinguish that case in principle from the one now under consideration.
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Vann, J.
The appellants claim that the testator is presumed to have used the words “ heirs-at-law ” in their strict and prnnary acceptation as
descriptio personowum,
and that the context, “in accordance with the laws of the state of Sew York,” determines the method of division and indicates an intention that the estate should be divided
per stirpes
among those who, as his heirs-at-law, would have succeeded to his real estate if he had left any and had died intestate.
The respondents, aside from the executors, who are apparently neutral in this controversy, claim that the testator used the words “heirs-at-law” according to their common acceptation, to denote the class who receive the property of deceased persons; that the language of the will indicates that he owned real property, at its date, and of the codicil, that he contemplated owning real estate at the time of his death, and that by the direction to divide his property “ in accordance with the laws of the state of New York applicable to persons who die intestate,” he meant that his real estate should be divided according to the Statute of Descents, and that his personal property should be divided according to the Statute of Distributions.
The question presented, although important, is so narrow as to greatly restrict discussion, so far as it bears directly upon the point involved. It depends upon the intention of the testator, which is to be gathered from the few words used by him in relation to the subject, considered, if their meaning is doubtful, in the light of the circumstances surrounding him when he used them. (4 Kent’s Com. 535.) One object that he had in making a will was to avoid the appointment of administrators and to relieve those who should succeed to his estate from the heavy burden of furnishing bail to the amount
of nearly half a million of dollars. Prominence was given to this feature in both the will and codicil, and in the latter, for further ease and convenience in settling his estate, he authorized his executors to sell and convey any real property of which he might die possessed. The unfortunate situation of one of his relatives, who would have been entitled to letters of administration if he had died intestate, in connection with the other circumstances, may have made this his sole object in making a will. (4 E. S. p. 2552, §§ 27, 28 [8th ed.].) With what intent did the testator direct that his estate should be divided among his heirs-at-law, in accordance with the laws of the state of New York applicable to persons who die intestate ? It is to be observed that he directed that his estate should be “ divided ” without using any other word importing a gift, devise or bequest. This tends to confirm the theory, already suggested, that he intended to simply appoint executors to make the distribution, and to leave the distributees and the proportions to be determined by law. At the date of his will his heirs-at-law and next of kin were the same persons, as John Edgar Oorlies, the father of the appellants, was then living. It does not appear whether at that time he owned real estate or not, except as a presumption may arise from his general reference to his estate as composed of both real and personal property. It does not appear that he owned real estate at the date of his codicil, except as a like presumption may arise from the language used by him in authorizing his executors to sell and convey. While he owned no realty at the time of his death, the will and codicil each speaks, as to existing facts, with reference to the date when it was written. It is clear, if he did not own real estate when he made the will or codicil, that he expected to own some at the date of his death, and lfis use of the word “ heirs ” is to be considered in the light of that fact. While technical words in a will, when uncontrolled by the context, are presumed to have been used in their teclmical sense, ■still the context may overcome the presumption when it appears thereby, and from extraneous facts of the kind already alluded to, that the testator used the words in their common
and popular sense. The context in the case in hand shows that the estate was to be divided in accordance with the laws of the state of Hew York applicable to persons who-die intestate. The use of the words “ heirs-at-law ” in such a connection indicates, as we think, the legal heirs, in the sense of persons who would legally succeed to the property in case of intestacy, according to its nature or quality, the heirs-at-law taking the realty and the next of kin the personalty. The cardinal idea seems to be that the division should be made in accordance with the statute in case of intestacy. This, as was-said by the learned General Term, seems to be “the plain import of the language used by the testator, * * * giving to the persons forming each of these classes whatever of the estate would go to them under the laws of the state. * * * As already suggested, there is nothing to indicate any other purpose. It is precisely as if the testator had said, £ I do not intend that there shall be any dispute over my estate. I mean to declare that the persons who are recognized by the law of the state of Hew York as entitled to a portion of it shall have it to the extent that the law declares. My real estate shall be divided amongst those to whom it would descend, and my personal estate shall be distributed between those who would be entitled to it, just as if no will had been made. And I make this will only for the purpose of securing the co-operatian of the executors whom I have named to take charge of my estate and protect it.’ ”
This construction is in conflict with no decision of this court to which our attention has been called, and it is in accordance-with the recent case of
Woodward
v.
James
(115 N. Y. 346),, which we regard as controlling. In that case the testator gave to his wife one-half the income from all his property of every kind, and the use of certain real estate during her life, and some specific personal property absolutely. He gave the remainder of the income to his “ legal heirs ” during the life of' his Wife, and upon her death he gave the “ reversion and
ownership,T
of all his property to his “ legal heirs,” except that in case any of Ins “ legal heirs ” should attempt in any manner to interfere
with or restrain his wife in the use and enjoyment of the property, such one of his “ legal heirs ” was to be forever debarred from any interest in his estate, and the share that otherwise would have gone to him or her was to be divided among the “ remaining heirs, according to law.” He left a brother, two half-sisters and nine nephews and nieces, the children of a brother, a half-brother and a half-sister, respectively, deceased, and the plaintiff, a grandchild of a deceased brother. It was held that the words “ legal heirs,” as used in the will, meant those who would take in case of intestacy and in the proportions prescribed; that the remaindermen, therefore, took
per stirpes,
and not
per capita,
and as, under the Statute of Distributions, representation goes no further than brothers’ and sisters’ children, and the rule of intestacy applies to the quantity of interest to be taken, the plaintiff had no interest in the personal estate. We are unable to distinguish that case in principle from the one now under consideration. In that case as in this there was personal property to distribute and a relative who would take under the term “heir ” in its technical sense, who could not take under the Statute of Distributions; and it was held that “legal heirs” applied to those who would take, and as they would take under either statute if there had been no will. The phrase “ according to-law,” was relied upon as indicating the intention of the testator, if any share was forfeited, to have such share distributed as if he had died intestate,. In this case the intention is indicated by a much stronger phrase, for the testator declares that he wants his property divided “in accordance with the laws of the State of Hew York, applicable to persons who die intestate.”
The appellants mainly rely upon
Luce
v.
Dunham
(69 N. Y. 36);
Keteltas
v.
Keteltas
(72 id. 312), and
Tillman
v.
Davis
(95 id. 17).
In
Duce
v. Dunham, the testator devised certain real estate,, being all that he had at the date both of his will and of his death, to his wife, and,' after a bequest to her and others, directed that the residuum of his estate, real and personal.
■should be divided among his “heirs and next of kin in the .same manner as it would be by the laws of the state of
New
York,” if he should die intestate. The widow claimed that .the use of the word “ heirs,” showed an intention to include ber, but the court held that it related only to the realty devised, while the expression “ next of kin ” related to the personalty bequeathed, and excluded her from sharing in the residuary •estate, citing
Murdock
v.
Ward
(67 N. Y. 387). The substance of the decision was that the widow was neither heir nor next of kin, and that the reference to the statute did not extend either term to her.
The other two cases involved the question whether the -widow was included by either form of expression, as. used by the respective testators, and it was held that she was not. They are not analogous in their facts to the case in hand, although the learned and extended discussion as to the meaning of the word “ heirs,” under varying circumstances, has a bearing more or less direct upon the question involved here.
In
Cushman
v.
Horton
(59 N. Y. 151), the court considered ■the question whether a testator meant his heirs apparent, as they -were at the date of his will, or his heirs actual, as they would be at the date of his death. All of these cases recognize the principle that where the context of the will shows that the testator used the word “ heirs,” or the expression “ heirs-at-law ” ■or “ next of kin ” in a sense other than the primary legal sense, the actual intention must prevail over the use of technical, language. In every case the aim was to get at the intention, and when that was found, not by conjecture, but by careful .study of all the provisions of the will, it was blindly followed. So in this case, after giving due force to the term “heirs-at-law,” we think that the testator meant, as he said, that his. property should be divided according to law, the same as if he bad not made a will, and hence that the judgment of the General Term should be affirmed, with costs to the respondents, payable out of the estate.
All concur, except Potter, J., dissenting.
Judgment affirmed.