By the Court,
Sutherland, J.
It is evident that the sole question is as to the meaning of the words, next of kin, in that clause of the settlement limiting the property to the next of kin, in default of appointment and of issue. [149]*149Had we not "been referred to certain comparatively recent English cases, (Elmsley v. Young, 2 Myl. & K. 780; Witty v. Mangler, 4 Beavan, 358,) affirmed by the house of lords, (10 Clark & Finnelly, 215,) holding that the;words “next of kin,” used simpttciter, are to be taken to mean “nearest of kin,” I should probably have stated the question in the principal case to be, whether the words “next of kin” were used in the settlement in their technical statutory sense, or meant nearest of kin; and then, assuming that the words “next of kin,” used simpttciter, had a well known technical statutory meaning, I should have contented myself with saying, that there being nothing on the face of the instrument, or in the context, to show that the words were used in a sense other ■than the technical statutory sense, it was to be presumed the parties used them in that sense:
Though the English decisions referred to are not obligatory upon us, yet respect for so high authority prevents me from assuming that the words “next of kin,” used simpttciter, in a limitation or disposition of personal property, by will or deed, have any technical meaning; and Twill therefore state the question in the principal case to be, whether the words “ next of kin,” in the limitation by the deed of settlement, in default of issue and of the exercise of the power of appointment, mean nearest of kin ? By stating this to be the question, I do not assume that the words “next' of kin,” used simpttciter, have a technical meaning; .but I undertake to show that they have a technical statutory meaning, and that this meaning is not the nearest of kin, but those of the kindred or relations by blood, who in cases of intestacy, by the statute of distributions, succeed to, or share in, the intestate’s personal property; and that the words “next of kin” and the word distributee, under the’ statute, are not. synonymous, but that the words “next of kin” mean such of the distributees as are of the kindred or relations by blood. ■ .
It may be well to refer to a few of the established rules in [150]*150construing wills and other instruments disposing of or limiting the property, before examining the question in' the case.-
1. They are to be construed so as to carry into effect the intent of -the parties, to be gathered from the whole instru-. ment, so far as such intent can, by law, be carried into effect.
2. Words are to be taken in their ordinary popular meaning, and the intention is not' to be defeated by the use or misuse of technical terms.
3. Nevertheless, if technical terms are used, it will be presumed that they are used in their technical legal sense, unless - the context shows that they were intended to be used in a different sense. (De Kay v. Irving, 5 Denio, 646. Lane v.Lord Stanhope, 6 T. R. 352. Hodgson v. Ambrose, Douglas, 337.)
In the principal'case, there is certainly nothing in the con- - text to show that the words “ next of kin,” in the limitation to the “next of kin,” were not used in their strict technical legal sense, if they had any. On the contrary, I think the' use of the words “or other next of kin,” in. mentioning the objects of the power" of appointment, and the use of the technical terms per stirpes, and not per capita, in the limitation to the issue of Mrs. Lawrence, and the children of such as may be deceased, previously, in -the same sentence, tend to indicate that the words “next of kin,” in the limitation to the “next of, kin,” were used in a technical sense if they had any.
The question, then, is whether the words “next of kin” simply had or have the technical meaning above stated. I think it may be said that they have had this technical meaning since the statute of distributions, (22 and 23 Car. 2d. c. 10,) and that this statute originated and gave this technical meaning to them.
The word next, as used in the sixth section of the statute, was not used to express near or nearest alliance by blood to the intestate, but next in place or order, to or. after children and their representatives, previously "mentioned -in the section. The truth is, that the word next, as an adjective, is [151]*151rarely, if ever, used even in conversation, to express nearness, or degree of nearness by blood or affection, between another person and the speaker, except as next after, next in order or degree, to some other person, previously mentioned.
Certainly, if one should hear a person call another his next friend, he would not, by these words, unexplained, understand his near or nearest, dear or dearest friend by affection, without-reference to any other person; but he would probably understand his next door neighbor, or a friend next in place, time or degree, to or after some other fi-lend, or technically his “next friend” in some legal proceeding. I suppose it will not be denied, that the words “next friend” have acquired a technical meaning, which originated in a very old statute.
The word next was not used in the statute of distributions to express the relationship, or the degree of relationship, by blood to the intestate, but, as between the children and their representatives and other kindred of the intestate, the order in which the kindred should succeed to" or share in the personal estate.
The children and their representatives are not expressly called kindred in the statute, but they are impliedly called so, and so are the legal representatives of the “next of kindred” within a certain limitation.
Sow, considering that, previous to this statute, there appears to have been no way of enforcing the distribution of estates of intestates; that the administrator could keep- the whole surplus, (Edwards v. Freeman, 2. P. Wms. 447, 448; 2 Blk. Com. 515;) that the statute may therefore be said to have first given the right of distribution; that the statute regulates the distribution as between the widow, by the term wife, and the kindred, and then the order in which kindred shall take or share, first, children and their representatives, and then, the next kindred in equal degree, and their representatives, within a certain limitation; and that the statute probably originated the principle of representation in the [152]*152succession to personal estates of intestates; is it not plain, as the word heir or heirs acquired its technical legal meaning, from the act or fact of the succession to estates of inheritance (ex hereditate) by descent, that is, by law, so the words “next of kindred,”.or “next of kin,” taken from the statute of distributions, would be likely, after the statute,- to acquire a technical legal meaning from the act or fact of succession under or by the statute; and that this meaning would be likely-to be, not synonymous with distributees, under the statute, but the kindred 'or blood relations (including those claiming by representation, but excluding a widow as such) who, in fact, had the right of succession, or the right to share in the distribution by the statute ?
The whole history of the administration of this statute 'of distribution and of the statute 1 Jac. 2d, ch. 17, altering it in certain respects, and of our statutes of distribution, (1 R. L. 313, § 16; 2 R. S. 96, § 75,) shows that the words “next of kin” have acquired this technical meaning.
The cases holding that the widow, as such, is not included in these words used simpliciter, nor the husband, where the wife has a power of appointment to her next of kin simply, show that the words “next of kin” have acquired this technical meaning. (Green v. Howard, 1 Bro. Ch. Rep. 29. Watt v. Watt, 3 Ves. 244. Garrick v. Lord Camden, 14 id. 381, 382. Bailey v. Wright, 18 id. 49. Wilson v. Frazier, 2 Hump. 30. Wright v. Meth. Fpis. Ch., Hoffman, 212, 213.) No doubt these words have been used frequently as meaning distributees generally, including the widow, when there was no occasion to discriminate as to the description or character, by which the distributee or distributees claimed; but, when thus used, they were used in a secondary, statutory and technical sense.
I doubt whether it can be said that these words have ever acquired an ordinary, popular meaning, synonymous with nearest relations or nearest of kin.
/As was pertinently said on. the argument, no one speaks [153]*153of his or another’s dearest next of kin. Any one .would he surprised to hear a sane person say such a one has a next of kin horn, or another next of kin horn, or has a certain number of next of kin. There has been no occasion (the wants of the language have not required) that the statutory word next should supplant, or be used instead of, the word near or nearest, to express close or closest alliance by blood or affection to the speaker.
The philosophy of language shows that one word is much more likely in course of time to acquire a secondary, and a variety of secondary (if the expression is permissible) meanings, than three words, used in connection in a particular manner and for a particular purpose, in a statute, neither the first or last of which' could be dropped without destroying their statutory meaning.
It is easy to see how the. word heir, or heirs, came to have a secondary, and, perhaps, moré than one secondary meaning. First, you have heir, or heirs, meaning he, or they, who succeed to estates of .inheritance by descent, by law; then you have heir, or heirs apparent or presumptive, and then you have heir or heirs, with the word apparent or presumptive dropped, meaning a living child or children. ¡No one would be surprised at the remark that A. B., his neighbor, has an heir, or another heir, or a certain number of heirs.
I think it may be said, that all of the English cases prior to Elmsley v. Young, (2 Myl. & Keen,) before mentioned, (in 1835,) tended to show that the words “next of kin,” used simpliciter, in a will or deed, disposing of, settling or limiting personal property, had this meaning. I am certainly safe in saying that this was the first decision to the contrary.
In Roach v. Hammond, (Prec, in Ch. 401,) the devise was to H. of all the testator’s personal estate, for the use of his relations, without specifying any in particular, or using any other words; and it was decreed that those relations (as I understand the report of the case,) who, by the statute of [154]*154distributions, would be entitled to personal estate in case the testator had died intestate, should take the property in the same proportions.
In Thomas v. Hole, (Cases in Eq. in temp. Talbot, 251,) there, was a bequest of £500 to the relations of Elizabeth Hole, to be divided equally between them. At the testator’s death, Elizabeth Hole had two brothers living, and several nephews and nieces. It was determined first, that the word relations should be confined to such relations as were within the statute of distributions, and next, as the testator had directed the £500 to be divided equally among them, that the brothers, nephews and nieces take per capita.
This decision appears to have governed the decisions in Edge v. Salisbury, (Ambl. 70,) and Isaacs sv. Defriez, (Id. 595,) where the words were “poorest relations;” Widmere v. Woodroffe, (Id. 636,) where the words were, “the most necessitous of my relations ;” Harding v. Glynn, (1 Atk. 469 ;) Winthorne v. Harris, (2 Ves. 527,) where the words were, “near relations;” Green v. Howard, (1 Bro. Ch. R. 28, Park, ed.,) where the words were, “ to my own relations who shall then be alive, share and share alike;” Phillips v. Garth, (3 Bro. Ch. R. 64,) where the words were, “to be divided among the next of kin, share and share alike;” Rayner v. Mowbray, (Id. 234,) where the words were, “ to and among all and every such person and persons who shall appear to be related to me only, share and share alike;” Lowndes v. Stone, (4 Ves. 649,) where the gift was of a residue to the testator’s “ next of kin, or heir at law, whom I appoint my executor,” (the testator in this case leaving one brother, and by deceased brothers a niece and several nephews, one of whom was his.heir at law, and distribution according to the statute being decreed;) Vaux v. Henderson, reported in note to Horseman v. Henderson, (1 Jac. & Wal. 387,) where there was a legacy tó A. “and, failing him by decease before the testator, to his heirs,” and A. dying before the testator, . the legacy was decreed to belong to the next of bin of A. [155]*155living at the time of the testator’s death; Stamp v. Cooke, (1 Cox, 23,) where the words were “next relations,” coupled with words tending to show that the testator meant by “next relations” sisters, nephews and nieces, and where Lord Kenyon expressly said, if a testator makes a bequest to his “next of kin,” and stops there, the statute was the rule to go by ; Hinckley v. McLaurens, (1 Myl. & Keen, 27,) where the words were, “next of kin,” used simpliciter, in a gift over, and where it was held, that these words, without any explanatory context .showing a different intent, must be taken to mean next of kin according to the statute of distribution. Of these cases, the last, and Phillips v. Garth, (3 Pro. Ch. Rep.) are directly in point, for in these cases the words “next of kin” were used simpliciter, and without any words qualifying them, as descriptive of the object or objects of the gift. It will be recollected that in Phillips v. Garth, the words were, “ to be divided among the next of kin, share and share alike.” Justice Buller held that the gift should be divided per capita, and not per stirpes, among surviving brothers and nephews and nieces, representing deceased brothers and sisters, because, the gift was to “next of kin, share and share alikebut I do not see that this holding impeaches the decision as to the technical meaning of the words “next of kin.” The words “share and share alike” did not qualify the words “next of kin,” as descriptive of the objects of the gift. It is probable, however, that the holding, that the brothers, nephews and nieces should take per capita, led to the doubting remarks, (Brandon v. Brandon, 3 Swanst. 319 ; Garrick v. Lord Camden, 14 Ves. 385, and Smith v. Campbell, 19 id. 404,) about the decision in Phillips v. Garth, but those cases did not call for such doubts. In Brandon v. Brandon, the words of the marriage settlement were, “to the nearest and next of kin” of the wife. In Garrick v. Lord Camden, the words of the residuary clause of the will were, “to be divided amongst my next of kin, as if I had died intestate.” In Smith v. Campbell, the words of [156]*156the bequest were, “to my nearest surviving relations in my native country, Ireland. In none of these cases were the words “next of kin” used without qualifying words.
In Brandon v. Brandon the word nearest may be said to have qualified the words “next of kin;” in Smith v. Gampbell the words “surviving relations” were qualified by the word nearest and the subsequent words. The very question in the principal case is, whether the words “next of kin,” used simpliciter, mean nearest of kin; and that was the question in Elmsley v. Young, (2 Myl. & K. 780,) reversing the decision of the master of the rolls in the same case, (Id. 82,) and overruling Phillips v. Garth, and Hinckley, v. Maclarens. In Garrick v. Lord Camden, the additional words, “as if I had died intestate,” left no room for doubt. If, in' the principal case, the words, as if she had died intestate, had been added to the words, “ the next of kin of the-said party of the first part,” we never should have had this case before us.
In Anonymous, (1 Madd.31,) and in Wimbles v. Pitcher, (12 Ves. 433,) where the words were, “next of kin, in equal degree,” the decisions went upon the additional words, “ in egual degree.”
In Colton v. Scaranke, (1 Madd. 35,) where the words in a limitation by settlement were, “ to the' next of kin óf the said Anne Parr, her own blood and family, as if she had died sole and unmarried,” it was held that the next of kin took as under the statute of distributions.
I. will refer to a few cases prior to Elmsley v. Young, where other general words were used as descriptive of the object or "objects of the limitation, devise or bequest. In Robinson v. Smith, (6 Simons, 47,) the testator bequeathed £700 to his daughter’s husband, his executors, &c. in trust, to pay "the interest to his daughter, for her separate use for life; after her death to such persons as she should appoint by will, and in default of appointment, to “her personal representatives ;” and it was held that her next of kin, to the [157]*157exclusion of her husband, were entitled to the £700. (See also Baines v. Otley, 1 Simons, 465.)
In Crosby v. Clare, (Amb. 397,) and Parsons v. Baker, (18 Ves. 476,) the general word was descendants, but that was qualified by other words, so as to show that a class of descendants was meant. In neither of these cases was there any question of claiming by representation. In Butler v. Stratton, (3 Bro. Ch. 367,) the legacy was to the descendants of A. and B. equally, and it was held that children and grandchildren took per capita.
In Wright v. Alkyns, (1 Turn. & R. 143,) it was held, that under an immediate devise to A. for life, remainder to “my family,” the heir-at-law of the testator is entitled in remainder. (See the opinion of the lord chancellor in this case, 158 to 164.)
I think it may be said, that not one of the cases prior to the decision in Elmsley v. Young, (2 Myl. & K. 780,) interferes with the decisions in Phillips v. Garth and Hinckley v. Maclarens, but that most of them tend forcibly to support these decisions; but it is not to be denied, that as the views of the lords commissioners in Elmsley v. Young were affirmed by the house of lords in Witty v. Mangler, (10 Clark & Fin. 215,) it may be said, to be now established in England, that the words “next of kin,” when used simpliciter, as descriptive of the objects of a bequest, or of a limitation of personal property in a marriage settlement, without any reference to the statute of distributions, or any words in the context to show a different meaning, must be taken to mean “nearest of kinbut Lord Campbell said, in substance, that he concurred in this decision with great reluctance; that they were driven to put a construction upon the terms “which could not by possibility have entered into the contemplation of the parties, or the gentleman who framed” the settlement; that the law had, “by some bad luck, got into a strange state,” and that, upon the whole, it seemed to him, that greater mischief would ensue “from shaking or overturning [158]*158that case of Elmsley v. Young than by adhering to it.” He further said: “If I had had to decide Elmsley v. Young, I should certainly have hesitated a good deal before I came to the decision that was pronounced by those very learned judges, the then lords commissioners.”
I think the decision in Elmsley v. Young, by the lords commissioners, shows that the greatest judicial mind is liable to fall into a rut, and, when it does, common sense teaches that its very load of learning tends to keep it in.
In my opinion, there is nothing in the opinions of the lords commissioners in Elmsley v. Young, or in the opinion of Lords Cottenham and Campbell in Witty v. Mangler, which shows that the decisions in these cases should be adopted or followed here. .
I am not aware of any case in this state deciding the question in the principal case.
The last sentence in the second paragraph of the head note in Wright et al. v. Trustees of Methodist Episcopal Church, (Hoffman’s Ch. 202,) is wholly unauthorized. It was not decided in the case, and there was no occasion to decide, that the phrase “next of kin,” when used simpliciter, does not mean those entitled under the statute of distributions, but the next in blood. It was held, in that case, that the legacy to Euphemia Murray did not lapse, but that her next of kin-took. She left children, but no grandchildren.
There was no claim by representation, or per stirpes. Vice-Chancellor Hoffman refers to the decision of the lords commissioners in Elmsley v. Young, but he says that the decision did not interfere with his decision, and it clearly did not.
In Drake v. Pell, (3 Edward’s Ch. 251,) the words “heirs, devisees or legal representatives of the child so dying” were held to mean “next of kin” of the child so dying, the subject of the gift being money. There was no claim per stirpes, or by representation, in this case.
In Dominick v. Sayre, (3 Sand. S. C. Rep. 555,) there was a devise by Dominick of eight lots of land to the testator’s [159]*159daughter, Margaret, for life, with power to give the same by deed or will to any of the male descendants of the testator’s family of the name of Dominick. The daughter, by her will, devised the lots to male descendants of the testator by the name of Dominick, and among them she gave to her nephew John Jacob, son of her deceased brother Jacob F., two of the lots. The nephew died before his aunt, whereby the devise to him lapsed, and thereby the legal estate in the two lots became vested in the residuary devisees of the original testator and their heirs, subject to the execution by the court of chancery of the power so given to the daughter. The only male descendants of the family of the testator of the name of Dominick were, as I understand the facts, grandsons of the testator and sons of two of the grandsons, and it was held that all the male descendants were entitled to take per capita, and not per stirpes.
This decision was probably right, for it might be said that the power of appointment given to the daughter was limited, to a class of the testator’s descendants, that is, his male descendants of his family of the name of Dominick; but I have no hesitation in saying, that, in my opinion, a devise to A. B. for life, remainder to his descendants, or to “ my descendants,” simpliciter, should and would be held to be a devise to A. B. for life, remainder to the heirs at law of A. B., or of the testator. In either case, I think the word descendants would be held to mean “heirs at law.” Whether the heirs at law would be deemed to take by descent, or under the devise, is another question. Since the statute 3 and 4 Will. IV, ch. 106, no doubt, in England, the heir would be deemed to take in the character of devisee. (See 4 Kent’s Com. 5th ed. 412, note c.)
In Phyfe v. Phyfe, (3 Bradf. 45,) there was a bequest to sons “and their legal representatives,” adding, “the legal representatives or children of my said sons to receive such part only,” &c.; and it was held, that the words “legal representatives” meant the children, and not the “next of kin” [160]*160of the sons, and that substitution was not intended beyond the children of the sons. This decision evidently went on the additional words “or children,” &c. (See also Barstow v. Goodwin, 2 Bradf. 413.)
In McCullock v. Lee, (7 Ohio Rep. 15,) the question was between the mother and aunt of a child, under a statute regulating the descent of lands. The words of the statute were: “ If there be no brothers or sisters, or their legal representatives, the estate shall pass to the next of kin and of the blood of the intestateand it was held that the mother took. I do not see how it could have been held otherwise, considering the additional words, “and of the blood,” &c., and the extraordinary use of the words “next of kin,” in a statute regulating the inheritance of lands. See also McNeilledge v. Galbraith, (8 Serg. & R. 43,) and McNeilledge v. Barcly, (11 id. 103,) where the devise of real and personal property was to the testator’s wife, “and at her decease, to be divided between her and my poor relations equally.”
It is evident that all that has been said about the English statute applies to our statutes of distribution, especially to our present statute, (2 R. S. 96, 97, § 75,) which was worded with much more precision and distinctness than the English statute.
Perhaps the remark in the fore part of this opinion, that the English statute of distributions originated and gave a technical meaning to the words “next of kin,” requires explanation. I meant, that the statute originated and gave the technical meaning contended for, with reference to the succession to or the distribution of the personal property of intestates; I did not mean that the statute originated the phrase next of kin.
A statute of 31 Edward III provided that, in cases of intestacy, “ the ordinaries shall depute of the next and most lawful friends of the dead person intestate to administer his goods.” Lord Coke, in Hensloe’s case, (9 Coke, 39,) speaking [161]*161of ths statute, says “next and most lawful friends” meant the next of blood.
The statute of 21 Henry VIII, ch. 5, provided, that in case any person die intestate, or that the executors named in any testament refused to prove it, the ordinary should grant administration “to the widow of the deceased, or to the next of kin, or to both, as by the discretion of the ordinary shall be thought good.” Lord Coke, in speaking of this statute, in Hensloe’s case just cited, says, that it gave power to the ordinary to commit administration to the next of blood; but how palpably unauthorized the conclusion (Cooper v. Denison, 13 Simons, 295, 296) from this, that, long after the statute of distributions, the words next of kin and next of blood were synonymous ; the very point insisted on being, that the words next of kin were likely to acquire, and had acquired, a technical meaning, in consequence of that- statute.
It is not probable-that Miss Ogden, when she executed the settlement, thought of the meaning of the words “next of kin.” It was natural that she should think of her anticipated issue, and their children. She takes care of them by a special limitation. If she thought of her brothers and sisters, why did she not take care of them by a special limitation ? It is evident that the settlement was drawn with technical precision by one well acquainted with the technical meaning of legal terms and phrases. He must be presumed to have inserted the words “next of kin,” in the limitation to “the next of kin of the said party of the first part,” with knowledge of their technical meaning, if they had any; and the parties, by their execution of the settlement, must be presumed to have adopted them with such technical meaning. And as I can not say that I have a doubt that those words used simpliciter meant and mean next of kin, under or according to the statute of • distributions, including those claiming per stirpes or by representation, my conclusion is, that the judgment of the special term should be reversed; and that we should declare that the defendants, the three [162]*162children of Mrs. Lawrence’s deceased brother, are entitled to the share of the fund which their father would be entitled to were he living.
[New York General Term,
November 7, 1864.
We would not be justified in rendering blind obedience to authorities, however respectable or high, which have neither the force of constitutional obligation, nor state nor national judicial precedent or approval.
I will say in conclusion, partly by way of excuse for this rather elaborate examination of a question which, unembarrassed by cases, would appear to be so simple, that I find in a deservedly popular law dictionary (Burrill’s) the words “next of kin” defined first and most prominently “nearest of blood,” (qsrochien du saunlc;) and even Judge Story, in his Eq. Juris, (vol. 2, § 1065, b,) says, “next of kin is sometimes construed to mean next of blood, or nearest of blood citing Wittey v. Mangler, (supra,) without one word of comment, or of approval or disapproval:
The question of costs is reserved until the settlement of the decree.
Judgment reversed.
Zeonard, Geo. G. Barnard and Sutherland, Justices.]