
    The United States Trust Company of New York, Plaintiff, v. Daniel S. Miller, impleaded with Isabel E. Miller, individually, etc., et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1908.)
    Deeds — Interpretation generally: Parties — Who intended as grantee — Next of kin.
    In this State the term “ next of kin ” does not include the widow of a testator, in the absence of an intention to include her in the class which the term is employed to designate.
    Where a trust deed was executed in 1865, providing for the payment of the income of certain personal property to the founder of the trust or his son, and with similar trusts for the benefit of his other children and providing further that, in the event of the death of any one of the children of the founder of the trust after him leaving no child or descendants of a child him or her surviving, then on the further trust to pay over to the next of kin of such child so dying according to the laws oí distribution then in force in the State of New York, the Statute of Distributions in force at the death of the said son must control as to the trust for his benefit; and, upon the distribution of the corpus of the estate upon the termination of'the trust, the widow of said son is not entitled to participate in the distribution.
    Action for an accounting.
    Stewart & Shearer (Geo. L. Shearer and Williamson Bell, of counsel), for plaintiff.
    Cannon & Cannon (Charles M. Cannon and Wilfred N. O’Neil, of counsel), for defendants, Emily Noyes, Daniel S. Miller, individually; Harriet A. Dickinson, Charles E. Appleby and Daniel S. Miller as executor of Daniel S. Miller, deceased.
    Salter & Steinkamp, for defendant Dwight G. Harris.
    Wm, D. McNulty, for defendant Isabel E. Miller as administratrix of John B. Miller, deceased.
    
      Pierce & Greer, for defendants George J. Gould and Howard Gould.
    Leonard & Walker, for defendants Edwin Gould, Helen M. Gould, Anna Gould and Frank J. Gould.
   Leventritt, J.

Daniel S. Miller, by deed dated Hovember 21, 1865, set apart six parcels of personal property in trust directing that the' income from “ Parcel Ho. 6 ” be paid over to himself “ during the life of John B. Miller, son of the said party of the first part, if the said party of the first part shall so long live and, in case of his death before the said John B. Miller, then in trust to pay over such net produce, dividends, interest and profits to the said John B. Miller during the term of his natural life and upon his death leaving a child or children ” the property to be divided as further provided. Then follows this provision: “And this indenture is declared to be made upon this further trust, that * * * in case of the death of any of the said children of the said party of the first part after him and leaving no child or children or descendant of a child him or her surviving then on the further trust to pay over to the next of kin of such child so dying according to the laws of distribution then in force in the State of Hew York the whole of said parcel of stock herein set apart and declared to be held in trust for the said child of the said party of the first part so dying.”

John B. Miller, the son, died after the founder of the trust, leaving a widow but no children nor descendants of any decreased child or children.

The trusts created having terminated, the plaintiff asks that its accounts as trustee be passed and that a distribution of the corpus of the estate be decreed.

Two questions are presented -with respect to the distribution of “ Bar cel Ho. 6: ” 1. What statute governs the determination of the persons entitled to take and the proportions they shall receive? and 2. Is the widow of John B. Miller, deceased, entitled to share as one of the “ next of kin?”

The trust deed itself furnishes the answer to the first question. It provides that, in the event of the death of any one of the children of the founder of the trust after him, leaving no children or descendant of a child him or her surviving, then on the further trust to pay over to the next of kin of such child so dying according to the laws of distribution then in force in the State of Uew York.” This language requires no construction, and it is clear that the Statute of Distributions in force at the time, of the death of John B. Hiller must control.

The widow of John B. Miller is not embraced in the class next of kin ” between the members of which “ Parcel Uo. 6 ” is to be ultimately divided, and she is not entitled, therefore, to share therein.

Section 1870 of the Code relating to decedents’-estates contains this definition:

“ The term next of kin ’ as used in this title, includes all those entitled, under the provisions of law relating to the distribution of ' personal' property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife.”

Section 2514 governing Surrogates’ Courts reads:

12. The term ‘ next of kin,’ includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after the payment of debts and ex- ' penses, other than a surviving husband or wife.”

Section 2732 relating to distribution provides: “ If there be no widow, and no children, and no representative of a child, the whole surplus shall be distributed to the "next of kin.”

“ The words * next of kin ’ * * * are usually limited . in legal meaning, as in common use, to blood relations and do not include a husband or wife.” 14 Cyc. 34.

In this State it has uniformly been held that the term “ next of kin” does not include the widow of a testator, in the absence of any evidence of an intention to include her in the class which the term is employed to designate. Murdock v. Ward, 67 N. Y. 387; Tillman v. Davis, 95 id. 17; Burns v. Burns, 190 id. 211; Matter of Devoe, 171 id. 281.

In the case last cited the Court of Appeals hy Cullen, J., says: It is conceded that in its primary meaning the term (next of kin ’ includes neither a widow nor a husband. I think that it is settled by authority in this state that a direction that the property shall be distributed among the next of kin the same as in the case of intestacy is not sufficient to extend the meaning of the term ‘ next of kin ’ so as to include either of the relatives named, though he or she would share in the property of the deceased if it were 'a case of actual intestacy. * * * It might be more decent, where a large estate is given to a man for life, the principal to go to his issue or to his heirs, to make some provision for his .wife, in case she survives him. An examination of the cases, however, shows that it is not the prevalent practice; and that a testator rarely makes provision for the surviving wife of the life tenant, and in the analogous case of a surviving husband practically never makes provision for him, unless in a few exceptional instances where the husband is in existence at the time and Imown to the testator.”

That language is' pertinent here. Ho facts are shown indicative of an intention to include the widow of John B. Miller in the term next of kin ” and the deed of trust contains no intimation of such an intention. Furthermore, at the time the deed was executed John B. Miller was unmarried.

The case of Betsinger v. Chapman, 88 N. Y. 487, does not apply as it involved a construction of the words “ next of kin ” as used in the Revised Statutes (2 R. S: 144, § 9) authorizing “ next of kin entitled to share in the distribution of the estate ” of a decedent to commence an action against the executor or administrator. It was held that the words “ next of kin,” in a strict or primary sense, did not include the widow, but that, -as the widow would have been without any remedy under the statutes if she was excluded from its beneficent provisions, she came within the. spirit of the section. . •

It follows that the widow of John B. Miller is not entitled to participate in the distribution of “ Parcel Ho. 6.”

Decreed accordingly.  