
    Henry Hess, Junior, as sole surviving Executor and Trustee under the Last Will and Testament of Casper Hirtler, Plaintiff, v. Rosa Zahn, Henry Zahn, Bernard Zahn, Charlotte Z. Kramer, Marie E. Hirtler, individually and as Executrix under the Last Will and Testament of William Hirtler, deceased; Theresa W. Hirtler, Hebry Hirtler, Junior, and Frank C. Hirtler, George Hoch, as Executor under the Last Will and Testament of Margaretha Hirtler, deceased, and Ira F. Brainard, Frank Brainard and Walter H. Brainard, composing the copartnership of Brainard Brothers, Defendants.
    (Supreme Court, New York Special Term,
    January, 1908.)
    Wills — Interpretation and construction: Designations and descriptions of persons, etc.— Particular terms of. doubtful meaning — Gift to class — To deceased or surviving persons or to their heirs; Heirs: Terms creating legacies, etc., and releases of debts — Rules and implications — Legacies to debtor — Charging legacies with indebtedness — Effect.
    . Where a testator left the residue of his estate to the executors in trust to receive the income therefrom and apply the net income to his wife during the term of her life or widowhood, and further provided that upon her 'death his estate should he divided into three equal parts, “ one of which equal parts I give and bequeath to my son William or to his heirs at law should he have died; another of said equal parts I give to my son Henry, or to his heirs at law should he have died, and the third and remainder of said equal parts I give to my executors ” to apply the income to the use of the testator’s daughter during her life " and upon her death, I give said part so "held in trust for her unto her children then living, and the issue of any of her children who may have died leaving issue; the issue of any deceased child to take the share or portion which his, her or their parent would have been entitled to, if living;” and where the testator’s sons William and Henry died before his widow; held that the interests of the testator’s sons William and Henry, under the will, were contingent and dependent upon their surviving the life beneficiary, and that the widow of the testator’s deceased son William was not one of the heirs at law of William and could not take as such under the will.
    And where the testator, by a codicil to his will, charged against the share to be received by his son William the amount of an indebtedness due him from William, and upon the share to be received by his son Henry an indebtedness due him from Henry, and it appears that it was the testator’s intention that the principal and interest of such indebtedness should not be payable until the sons received their respective shares in his estate, payments which the sons voluntarily made to their mother during her lifetime could not be considered as part of the testator’s estate and recovered after her death from her estate by those who then took under the terms of testator’s will.
    Action for the construction of a will.
    Finck, Embree & Cobb (Mr. Cobb of counsel), for .plaintiff.
    Hitcbings & Palliser, for defendant Rosa Zahn.
    Rushmore, Bisbee, Rogers & Stern, for defendant Marie E. Hirtler.
    Baldwin & Blackmar (Lucius E. Hudson of counsel), for defendants Brainard.
    Henry Herrold, for defendant Hoch.
    James W. McElhinney, for Henry Fairband, guardian ad litem.
    
   Newburger, J.

Casper Hirtler died on the 1st day of November, 1891, leaving him surviving Margaretha, his widow, and William Hirtler, Henry Hirtler and Rosa Zahn, children. He left a last will and testament and a codicil.

William Hirtler, a son, married the defendant, Marie E. Hirtler, on the 16th day of April, 1895, and died on the 15th day of March, 1904, no issue him surviving, but leaving a last will and testament by which he bequeathed and devised all his property to said Marie E. Hirtler, his widow. Henry Hirtler, a son of the deceased, married the defendant, Theresa W., on November 10, 1885, and died on the 2d day -of April, 1900, intestate, leaving him surviving Theresa W., his widow; and Gasper Hirtler, a son, who had just attained his majority; and Frank Hirtler, an infant, over the age of fourteen years. Margaretha Hirtler, the widow of Gasper Hirtler, died on February 3, 1906, leaving no issue, but leaving a last will and testament which has been probated and not contested.

'Casper Hirtler, by his will, after providing for the payment of his debts and making a number of bequests, provided in the fourth, fifth and sixth clauses of said will the following:

Fourth. All the rest, residue and remainder of my estate, real and personal, of whatever kind and wherever situated (excepting my dwelling house and premises, Number One hundred and thirty-five East Ninety second Street, in the City of New York, and the furniture and other articles therein contained, and my personal effects hereinbefore devised and bequeathed to my wife during her life), I give, devise and bequeath-to my executors hereinafter named, or such of them as may qualify, and the survivors or survivor of them, in trust, To Have and to Hold the same and receive the rents, issues, profits, and income thereof, and from time to time to pay and apply the net income arising therefrom to my beloved wife, Margaretha, for and during the term of her natural life so long as she remains my widow.
“Fifth. In case my said wife shall re-marry, then it is my will and I do hereby direct, that upon such re-marriage, my said Executors and said Trustees, their survivors or survivor, shall divide the said rest, residue and remainder of my said Estate (excepting the house and premises Humber One hundred and thirty-five East"Hinety second Street, in the Oity of Hew York, and the furniture and other articles therein contained, and my personal effects) into three equal parts, and my said Executors, their survivors or survivor shall continue to hold one of such parts in trust as aforesaid, to receive the rents, issues, profits and income thereof, and pay and apply the net income arising therefrom to my said wife for and during the rest of her natural life; and the. other two parts of the rest, residue and remainder of my estate shall thereupon he further subdivided into three equal parts, one of which three equal parts I give to my son William, or to his heirs at law should he fail to survive mé; another of said equal parts I give to my son Henry or to his heirs-at-law should he fail to survive me, and the third and remainder of said parts I give to my Executors, or such of them as may qualify, or the survivors or survivor of them, in trust, nevertheless, To Have and to Hold the same, to invest and re-invest the same as hereinafter provided, to receive the rents, issues and profits thereof, and to pay and apply the income thereof to the use of my daughter, Eosa Zahn, for and during the term of her natural life, and upon her death I give said part so held in trust for her unto her children then living; and the issue of any of her children who may have died leaving issue; the issue of any deceased child of my said daughter to take the share or portion which his, her or their parent would have been entitled to, if living.
The foregoing provisions for my said wife are made for her in lieu of dower.
" Sixth. It is my will and I do hereby direct that, upon the death of my .said wife, Margaretha, all my estate real and personal which may then remain undivided shall be divided into three equal parts, one of which equal parts I give and bequeath to my son William or to his heirs-at-law should he have died; another of said equal parts I give to my son Henry, or to his heirs-at-law should he have died, and the third and remainder of said equal parts I give to my Executors, or such of them as may qualify, or the survivors or survivor of them, in trust, nevertheless,- To have and to Hold the same, to receive the rents, issues and profits arising therefrom and to pay and apply the income thereof to the use of my said daughter, Eosa Zahn, for and during the term of her natural life, and upon her death, I give said part so held in trust for her unto her children then living and the issue of any of her children who may have died leaving issue; the issue of any deceased child to take the share or portion which his, her or their parent would have been entitled to, if living.”

The executors ask the court to construe whether, under these provisions of the will, the interests of William and Henry were vested or contingent in view of the fact that both died before Margaretha, the widow, the life beneficiary.

There can be no question that, from a-reading of the entire will and codicil, under the sixth clause of the will, the interests of the sons were contingent and dependent upon their surviving the life beneficiary.

The rule has been laid down in the case of Warner v. Durant, 76 N. Y. 136, by Mr. Justice Folger in delivering the opinion of the court, as follows: “ This case presents the question, whether a legacy became vested in the legatee in his lifetime, though he died before the time fixed for the payment.

It is a general principle that where a gift is absolute, and the time of payment only, postponed; time, not being of the substance of the gift, but relating only to the payment, does not suspend the gift, but merely defers the payment.

“ This principle will not act in this case to vest the legacy ; for the gift was not, in the outset, to the legatee; and another rule is to be noticed. It is this: Where there is no gift but a direction to the executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives. Here the gift was at first to executors, to hold in trust for five years; and at the expiration of that period, to pay over to the legatee. But this rule does not act in this ease; for there has been a distinction grafted upon it. It is this: Where the gift is to be severed instanter from the general estate, for the benefit of the legatee; and in the meantime, the interest thereof is to be paid to him; that is indicative of the intent of the testator that the legatee shall, at all events have the principal, and is to wait, only for the payment, until the day fixed.” -

The rule thus laid down has been followed in a long line of decisions, and is now the settled rule of this State.

The second question submitted is: Who are the respective heirs at law to take under the sixth clause of said will ?

Having determined that the interests of the sons William and Henry were contingent and not, vested, the only heirs at law under the sixth clause of the will are ¡Rosa Zahn and the children of Henry Hirtler, namely, Casper and Frank C. The claim - of Marie E. Hirtler, the widow of the son William, that under the will of her husband she is an heir at law, is untenable. It has .been repeatedly held in this State that the word “ heirs ” means next of kin, and that the words next of kin ” do not include a widow or husband.

In Tillman v. Davis, 95 N. Y. 17, the court said: The primary meaning in the' law of the word heirs ’ is the persons related to one by blood, who would take his real estate if he died intestate, and the.word embraces no one not thus related. It is not strictly proper to designate persons who succeed to the personal estate of an intestate. The proper primary signification of the words next of kin is those related by blood, to take personal estate of one who dies intestate, and they bear the same relation to personal estate as the word ‘ heirs does to real estate. The words ‘ heirs and next of kin ’ would not ordinarily be used by any testator to designate persons who were not related to him by blood. In this case, if the testatrix had intended that the widow of David should take by substitution in his place the whole or any part of the legacy given to him, it is presumable that her name would.have been mentioned. Or if it had been intended by the testatrix that those persons should sueceed to the shares mentioned in the eighth, ninth and tenth clauses of the will, who were entitled to take under statutes of distribution, she would not have used the word ‘ heirs ’ but would have designated them as the persons entitled by law to take the. personal property in such’ cases. It is presumable that she was attached to the legatees named in those clauses by ties of affection or of blood, and hence that she desired that the persons of the same blood, who might also be relatives of her blood, should succeed to the property.

“ In" this State it has uniformly been held, when the question has arisen for consideration in the courts so far as" we are able to discover, that the word ‘ heirs ’ applied to the succession of personal estate means next of kin, and that the words ‘ next of kin ’ do not include a widow or a husband of an intestate. In Drake v. Pell, 3 Edw. Ch. 251, the will directed a division of personal estate among nine children of the testator, and provided that in case any of them should die after him, and after having attained the age of twenty-one years, then the portion or interest of the child so dying should go to the ‘ heirs, devisees, or legal representatives ’ of the child so dying. One of the children, a daughter, died intestate, leaving a husband and children, and one of the sons died intestate, leaving a widow and children; and it was held that neither the term ‘ heirs ’ nor ‘ legal representatives ’ included the husband or widow; that those terms meant ‘next of kin’ and that a husband or widow did not' answer to the description of ‘ next of kin.’ In Wright v. Trustees of Meth. Epis. Church, Hoff. Ch. 202, a legacy was given by a testator to his second cousin, Euphemia Murray or to her heirs. She had died before the date of the will, leaving a husband and children; and it was held that the word ‘ heirs ’ meant next of kin and did not include the husband, as he was not next of kin to the wife. The learned assistant vice-chancellor writing the opinion, cited various English authorities to sustain his decision. In Slosson v. Lynch, 43 Barb. 148, under a marriage settlement the wife was ¡to have the income for life of certain personal property with a certain power of appoiútment by will or otherwise and in the event of her death before her husband, and in the absence of any appointment,- then the property was to go to her issue then living and the children of such as might be deceased, and in default of such issue, to the next of kin of the party of the first part ’; and it was held that the words ‘ next of kin ’ meant those of the kindred or blood who took by the statute of distributions, in case of intestacy, but excluding a widow as such; and the learned judge writing the opinion cited and commented upon many English decisions. In Murdock v. Ward, 67 N. Y. 387, the residue of personal property was directed to be ‘ equally divided among and paid to the persons entitled thereto as their, or either of their next of kin according to the laws of the state of New York, and as if the same were personal property, and they or either of them had died intestate.’ And it was held that next of kin 'meant relatives in blood and did not include a widow. In Luce v. Dunham, 69 N. Y. 36, a testator directed that all the rest, residue and remainder of his estate should be divided among his heirs and next of kin in the same manner as it would be by the láws of the State of Hew York ’ had he died intestate; and it was held that the words ‘ next of kin ’ did not include a widow, and that the addition of the words referring to the laws in case of intestacy did not enlarge the class of legatees so as to include her.” See also Snyder v. Snyder, 11 App. Div. 171; Matter of Devoe, 171 N. Y. 281; Platt v. Mickle, 137 id. 106.

Having determined -that the interests of William and Henry were-contingent and not vested, it is unnecessary for me to further discuss the claim of the defendants Brainard, for, unless they had a vested -interest in the estate, the mortgage executed by them to the Brainards is not a valid lien upon the proceeds of the estate in the executors’ hands.

The next question as to whether the sum of $5,087.50, now in the hands of the executor of Margaretha Hirtler, was received by Margaretha Hirtler, as executrix, makes it necessary to examine the second and third clauses of the codicil, which provide:

“Second. I do hereby charge against the share or portion of my estate to be received by my son William or to which he may be entitled under the provisions of my said Will, the sum of Eight thousand two hundred and fifty Dollars together with interest thereon from the date of my decease; being one half of the sum of Sixteen thousand five hundred Dollars which I have loaned and advanced to him and my son Henry. And I direct that the said sum shall be deducted from the share or portion of my estate to which my said son William may be entitled to under the provisions of my said Will.
“ Third. I do hereby charge against the share or portion of my estate to be received by my son Henry or to which he may be entitled under the provisions of my said Will, the sum of Eight thousand two hundred and fifty Dollars together with interest thereon from the date of my decease; being one half of the sum of Sixteen thousand five hundred Dollars which I have loaned and advanced to him and my son William. And I direct that the said sum shall be deducted from the share or portion of my estate to which my said son Henry may be entitled to under the provisions of my said Will.”

It will be noticed in these clauses that the decedent charged against his sons’ interests in the estate, or against any sums of money to which they might be entitled under the provisions of the will, the amount of their indebtedness to him, together with interest; and it is clear, from a reading of these clauses, that the principal with interest should not be payable until the sons received their share of the estate; and if during the lifetime of their mother any payment was made by them, it was voluntary and could not be held to be either income or profit; and, therefore, the plaintiff herein is not entitled to recover from the executor of Margaretha Hirtler’s estate any sum of money she may have received from the sons of the decedent, 'Casper Hirtler.

Ordered accordingly.  