
    Garrett’s Estate.
    
      Wills—Construction—Intention—"Next of Mn in accordance with intestate laws."
    
    1. A husband is not the next of kin to his wife, nor is she of next of kin to him, but the technical meaning of “next of kin” when used in a will must give way to a manifest intention of the testatrix that the objects of her bounty should include a surviving husband.
    2. A testatrix made a bequest to a named beneficiary and subsequently by codicil provided: “I further will and direct that in case of the death before my own decease of......any of the legatees named in my will, the legacy of such legatee so' dying shall not lapse but shall be paid by my executors, to his or her next of kin in accordance with the intestate laws of the State of Pennsylvania.” The beneficiary died in the lifetime of the testatrix leaving her surviving a husband and five children. Held, that the bequest should be distributed among those who would take her estate under the intestate laws, including the surviving husband. •
    Argued March 25, 1915.
    Appeal, No. 113, Jan, T., 1915, by Charles B. Dunn, from decree of O. C. Philadelphia Co., Oct. T., 1913, No. 228, dismissing exceptions to adjudication in Estate of Julia Garrett, deceased.
    Before Bbown, C. J., Mestbbzat, Potter, Elkin and Moschziskeb, JJ.
    Reversed.
    Exceptions to adjudication. Before Lamorelle, J.
    The opinion of the Supreme Court states the case.
    The court dismissed the exceptions. Charles B. Dunn appealed.
    
      Error assigned was in dismissing the exceptions.
    
      John G. Johnson, with him Maurice Bower Saul, for appellant.
    No paper book for appellee.
    April 19, 1915:
   Opinion by

Mr. Chief Justice Brown,

Julia Garret by her will and first codicil thereto made a number of bequests, among them one of $25,000 to Margaret H. Dunn. By a second codicil she provided as follows: “I further will and direct that in case of the death before my own decease of either of the above named legatees or of any of the legatees named in my will and the first codicil thereto, the legacy of such legatee so dying shall not lapse, but shall be paid by my executors to his or her next of kin in accordance with the intestate laws of the State of Pennsylvania.” Margaret H. Dunn died in the lifetime of the testatrix, and, in distributing her estate, the court below awarded the bequest to Mrs. Dunn to the latter’s five children, excluding the surviving husband from any participation in it. From this he has appealed, on the ground that the testatrix intended that the bequest of $25,000 to his wife should be distributed among those who would take her estate under the intestate laws of the State, which give a husband an equal Share with the children in the personal estate of his wife.

A husband is not of next of kin to his wife, nor is she of next of kin to him, and if by the second codicil to the will testatrix had merely provided that, upon the death of any legatee during her lifetime, the legacy should not lapse, but be paid to the next of kin of the deceased legatee, the present appeal would be groundless, for the words “next of kin” would have to be given their strict technical meaning. The learned court below felt constrained to give them that meaning, in construing the will of the testatrix, because it regarded Storer v. Wheatley’s Executors, 1 Pa. 506, and Ivins’s App., 106 Pa. 176, as binding authorities for its action.

The words “heirs” and “next of kin” have a well understood legal meaning, and, in the absence of any intention by the testatrix, to be gathered from her will, to give them a popular or other meaning, their technical meaning would have to prevail, for she would be presumed to have used them in their technical sense; but if it is clear that she did not intend to so use them, her intention as to the distribution of her estate must prevail in spite of them. No inapt use of words by a testator may defeat his manifest intention, unless they compel the application of some rule of law which itself defeats testamentary intention. An illustration of this is the rule in Shelley’s Case; but no such situation is here presented, and the intention of the testatrix, as gathered from her second codicil, must be given effect.

But for the two cases upon which the court below relied, its decree of distribution would evidently have included the appellant, for its learned president judge, in speaking for it, said: “In the absence of authority we would incline to the view that When the testatrix referred to ‘next of kin under the intestate laws of the State of Pennsylvania,’ she used those words not in the strictly technical but in the more popular and perhaps more reasonable sense and intended to refer to the persons entitled under the intestate laws and so to include a husband or wife although technically not ‘next of kin.’ We are however bound by the authorities.” ' Nothing is to be found in Storer v. Wheatley’s Executors or Ivins’s Appeal which conflicts with the rule everywhere recognized, that if a testator intends next of kin to be deemed to be such as would take under the statute of distribution, his intention cannot be defeated by giving a strict, technical meaning to the words. In the first case Chief Justice Gibson, after saying that, after all, the question before the court was as to the intention of the testator in using the words “relations or connections,” proceeded to demonstrate from the will itself that he did not intend that his wife should be regarded as. one of his “relations or connections,” to whom he bequeathed a portion of his estate in the event of his daughter’s death before attaining her majority. In the second case, Ivins’s App., Mr. Justice Gkeen, at the threshold of his opinion, said: “It has been so often held that when technical words are used in a will ór other instrument they must have their technical meaning, unless a contrary intent appear, that it would be a mere affectation of learning to cite the authorities. On the question of intent, in this case, the will and codicil abound with evidence that the intention of the testator corresponded precisely with the strict legal meaning of the words used.” The learned justice then went on to show that the intention of the testator, as gathered from the whole will, was- to use the words “heirs” and “next of kin” in their strict legal sense. In the will before us there is nothing to indicate that the testatrix intended that only the next of kin, in the strict legal meaning of those words, should take the legacy of $25,000. Her intention is to be gathered from the second codicil alone, and the only reasonable meaning to be given to its words is that she intended to save every legacy to a deceased legatee to those who would take from him or her under the intestate laws of the State. The words “next of kin” are to be regárded as superfluous or as having been used by the testatrix in their popular sense, meaning those who are entitled to the personal estate of a decedent under the statute of distribution.

Decree reversed and record remitted that distribution may be made in accordance with the view herein expressed, the costs to be paid out of the fund to be distributed.  