
    James N. Platt, Trustee, Resp’t, v. Andrew H. Mickle et al., Resp’ts, and Lizzie Mickle, Individually, and as Ex’rx, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 31, 1893.)
    
    Will—“Next of kin.”
    To extend the meaning of the word’s "next of kin,” so as to include a husband or wife, such an intention must definitely appear from the context, or other portions of the will.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of judge at special term construing will.
    
      II. 0. Harris, for app’lt;
    
      John W. Weed, for resp’ts.
    
      
       Affirming 45 St. Rep., 750.
    
   Gray, J.

In the distribution of this trust fund, held by plaintiff as trustee under the provisions of the will of Rachel Miller, deceased, Andrew and George Mickle, sons of her deceased grandson, George Benjamin Mickle, claim to be entitled to share, to the exclusion of Lizzie Mickle, the widow of their father. She insists upon her right to share in it, upon the ground that she should be regarded as one of her husband’s next of kin, to whom Rachel Miller by her will had given her grandson’s share upon his decease. Turning to the will in question, which was made in 1847, we find that she had created a trust in one-fourth of her residuary estate for the benefit of her grandson, during his life, and directed that such trust estate should determine upon his decease. I will quote her further language: “And I thereupon after his decease give, devise and bequeath all his said one-fourth part of the said rest and residue of the said trust estate then being in the hands of my said executors and trustees, the survivor or survivors of them, their heirs, legal representatives or successors, to such person or persons as shall then be the heirs at law and next of kin of nay-said grandson,George Benjamin, respectively, in such parts, shares and proportions as, having regard to the form in which the said estate shall then exist, such heirs and next of kin would have been then respectively entitled thereto and therein by law if my said grandson had been seized thereof in fee simple as an inheritance on the part of his mother, or possessed of the same, and he had died intestate and they had inherited or become entitled thereto from my said grandson, George Benjamin Mickle.”

The appellant wants us to hold that the words “next of kin ” were not used in their strict technical sense, and that they should be so liberally construed as to include her, and she thinks there would be justification for our so doing in view of the scheme of the will and of the circumstances of her marital relation. But there is nothing in this, or in any other part of the will, or in the fact of her marriage, which, in any view, could lead us to suppose that the testatrix had in her mind persons who would not answer strictly to the designation of next of kin of her grandson. It is conceded, and it, perforce, must be conceded, that, in construing this testamentary provision, we must be guided by what appears to have been the intention of the testratrix. So far as its language goes, it is most explicit. Husband and wife are not, and never were regarded as next of kin to each other. By the primary meaning of these words only relatives in blood are understood. To extend their meaning, só as to include a husband or a wife, such an intention must definitely appear from the context, or other portions of the will. In this case, in the utter absence of anything from which it might be possible to deduce such an intention, to give them the interpretation contended for would be to disregard a fundamental rule in such cases. The case is governed by Murdock v. Ward, 67 N. Y., 387, and the other authorities cited below by Judge Lawrence in his careful opinion. I find no authority for giving to these words an enlarged sense, in the absence of something in the context, or of some requirement of a statute, which would furnish the court with a reason for doing so. Here, as I have said, there is nothing which, being rationally considered, would justify us in reading these words in any other than their strict legal sense, and, therefore, the judgment should be affirmed, with costs to the respondent, to be paid by the appellant.

All concur.  