Cushman v. Horton — 8 N.Y. Sup. Ct. 601

Majority

p. 601

CAROLINE A. CUSHMAN, and others, Appellants, v. DAVID M. HORTON, Executor, and others, Respondents.

Headnote

Word “ heirs ” in will — the distinction between the meaning of, in devises and bequests.

When land is devised to a person and his heirs, or to the heirs of a person named, the word “heirs” must be construed to embrace those only who are heirs in the strict, legal sense of the term ; unless there is something in the will to show that it was used in a contrary sense.

In a bequest of personal property, the word “ heirs ” may be construed to mean children, or next of kin.

On the 2d of February, 1865, Hiram Frisbie, of the town of Sennet, in Cayuga county, made his last will, and, by it, made the following bequests, viz.: Fourth. I give and bequeath to my sister, Polly Carter, the use and profits of $2,000, to be paid her by my executor, hereinafter named.

Fifth. After the death of my said sister, Polly Carter, I give and bequeath said $2,000, hereinbefore devised to my sister, Polly Carter, to the lawful heirs of my brother, Medad Frisbie, in equal proportions.

Seventh. I give and bequeath to my said wife, Charlotte H. Frisbie, all the rest, residue and remainder of my estate, of every description, for her own use and disposal.

p. 602

The testator died in May, 1865, and his will was duly admitted to probate, and letters testamentary were duly issued to the executor named in his said will. At some time prior to the 27th' May, 1873, Polly Carter died, and, on that day, a final accounting was had by her executor, of his accounts.

Medad H. Frisbie, the brother of the testator, appeared before the said surrogate, on such accounting, as did the guardian of Hiram F. Horton, together with Caroline A. Cushman and Emilissa Kellogg, grandchildren of Medad H. Frisbie, and demanded the payment to them, of the $2,000 bequeathed to the heirs of said Medad. The widow of the testator also appeared, and demanded the payment to her of said $2,000, on the ground that the said legacy had lapsed, there being no one entitled to take it at the death of Polly Carter, as a living man could not have heirs.

The surrogate held and decided that the legacy had lapsed, .for the reason alleged, and directed the executor to pay said sum of $2,000 to the widow, and from this decree, the grandchildren of said Medad appeal to this court.

Pratt, Mitchell <& Brown, for the appellants.

H. V. Howland, for the respondents.

When land is devised to a person and his heirs, or to the heirs of a person named, the word “ heirs ” must be construed to embrace those only who are heirs in the strict, legal sense of the term, unless there is something on the face of the will, to show that the word was used by the testator in a more general and enlarged sense.^[1]

But when the bequest is of personal property, then the word “ heirs ” may be construed to mean children, or next of kin.^[2]

The word “ heir ” was used by the testator, in this case, in the sense of “ next of kin,” and the decision of the surrogate must be revoked, and the proceedings remitted, with instructions to enter

* Heard v. Horton, 1 Den., 165 .

† † 2d Redfield on Wills, 385 to 391; Wright v. The Trustees of the Methodist Episcopal Church, 1 Hoffman Ch. R., 202, and cases collated at 212, etc.

p. 603

an order that the executor pay to the appellants the amount of the legacy given by the will to Polly Garter, with costs to the appellant, to be paid out of the estate of testator.

Ordered accordingly.