Opinion of the Court, per EARL, J.

substituted legatees. (2 Sandf. Ch. 586; 2 Redf. on Wills, 653; Wright v. Methodist Episcopal Church, Hoff. Ch. 202; Slosson v. Lynch, 43 Barb. 147; Drake v. Pell, 3 Edw. Ch. 266, 270; Hamlin v. Osgood, 1 Redf. 410.) Where a bequest is left to a man's next of kin, relations or descendants, to be divided among them as if he had died intestate, his widow is not included and can take no part in the distribution of it. (Slosson v. Lynch, 43 Barb. 147; Green v. Howard, 1 Bro. 29; Watt v. Watt, 3 Ves. 244; Garrick v. Lord Camden, 14 id. 381, 382; Bailey v. Wright, 18 id. 49; Wilson v. Frazier, 2 Humph. 30; Wright v. M. E. Church, Hoff. Ch. 212, 213; Murdock v. Ward, 67 N. Y. 387– 390; Cushman v. Horton, 59 id. 149, 152.) The testatrix will be presumed to have known that the laws of New York would be applied in interpreting her will, and that those laws excluded the widow in case of a bequest of personal property to a man's "heirs." (Richards v. Miller, 62 Ill. 417; 1 Jarman on Wills, 1,2; 2 Greenl. Ev., § 671; Story on Conflict of Laws, § 479 e; Chamberlain v. Chamberlain, 43 N. Y. 424, 433; Holmes v. Remsen, 4 Johns. 460; Vroom v. Van Horn, 10 Paige, 549; Parsons v. Lyman, 20 N. Y. 103, 112; White v. Howard, 56 id. 144, 159; Hawley v. James, 7 Paige, 213; Mills v. Fogel, 4 Edw. Ch. 559; Stewart's Will, 11 Paige, 398.) This is a case which calls for the authoritative application of the maxim stare decisis. (Curtis v. Leavitt, 15 N. Y. 9, 247; Leavitt v. Blatchford, 17 id. 521, 543; Van Winkle v. Constantine, 10 id. 422; Baker v. Lorillard, 4 Comst. 257; Wilkes v. Lyon, 2 Cow. 394; Ohio v. Debolt, 16 How. [U. S.] 416– 432.)

EARL, J. Julia A. Gentil, a resident of New York, died January 26, 1874, leaving a last will and testament, in which, after directing her debts and funeral expenses to be paid by her executors, and after giving and bequeathing to her friend, Walter P. Tillman, one of her executors, the sum of $5,000, she gave, devised and bequeathed all the residue of her estate, real and personal, to her executors in trust for the uses and purposes

Opinion of the Court, per EARL, J.

expressed in her will, and she authorized and empowered them to take possession of all her real estate, and to collect and receive the rents and profits thereof, and to sell and dispose of all or any part thereof, at such time or times, and in such manner as to them, in their discretion, might seem expedient and proper; and to execute and deliver deeds to the purchasers, and also to convert or collect her personal estate; and to invest and keep invested the proceeds of her real and personal estate, in such manner as to them might seem most judicious; and to collect and receive the income thereof. Then she directed them to set apart out of her real and personal estate, or of the proceeds thereof, the sum of $10,000, to receive the rents and income of that sum and apply the same to the sole and separate use during life of her aunt, Anna B. Davis, and at her death. she gave the sum thus set apart to persons named in her will. In the sixth clause she willed and directed her executors to collect and receive the rents and income of all the remainder of her estate, and to apply the same to the sole use of her husband, Theodore Gentil, during his life. By the seventh clause of her will, from and after the decease of her husband, she gave various legacies therein named. The eighth clause of her will is as follows: "I will and direct that all the remainder of my estate so set apart for the use of my said husband during his life, immediately after his decease, first deducting therefrom the legacies bequeathed by the last preceding clause of this will, shall be divided into two equal parts as near as may be, and that then one of said shares or equal parts shall again be subdivided into seven equal shares or parts, and I give, devise and bequeath one of said seven equal parts of one of the said two equal parts to each of the following persons and their heirs, yiz.: to Eugenia Newman, of Philadelphia, one part; to Charles Mifflin, of Boston, one part; to Sophia Gardiner, widow of the late Edward Gardiner, of Boston, one part; to Matilda Van Buren, the wife of Thomas Van Buren, of Chicago, one part; to Elizabeth D. Tillman, of Troy, one part; to William N. Davis, of Illinois, one part, and to the children of William A. Bird, of Black Rock, in the State of New York,

Opinion of the Court, per EARL, J.

one part, the heirs of any or either of the foregoing persons who may die before my said husband to take the share which the person or persons so dying would have taken if living." By the ninth clause of her will she directed that the other of the two equal parts of the remainder of her real estate should again be subdivided into two equal parts, each part being equal to one-fourth of the whole remainder of her estate; and she gave one of such parts to three persons named, to be divided between them equally; the heirs of any or either of them who might die before her husband, to take the share which the person or persons so dying would have taken if living. In the tenth clause she gave the other of said last-named parts to five persons named, to be divided equally between them, share and share alike, the heirs of any or either of them who might die before her husband to take the share which the person or persons so dying would have taken if living. She appointed her husband and the plaintiff Tillman executors of her will. Her husband survived her, and died April 6, 1880, intestate and leaving no known heirs. William N. Davis died in 1878, in the life-time of the husband, in the State of Illinois. He left a widow, the defendant, Ellen A. Davis, but no children or parents. His nearest blood relatives were the respondents, Grace E. Bird, and others. He left a will wherein he devised to his wife all his interest in the property bequeathed to him in the will of the testatrix. By the laws of the State of Illinois Davis dying intestate his widow was entitled to the whole of his personal estate; and upon the trial of this action it was the contention of Mrs. Davis that she took the part bequeathed to her husband, either under his will, or as his heir under the will. of the testatrix; and on the part of the Bird defendants, the contention was that they took that part as the heirs of Davis under the will of the testatrix. The latter contention was upheld by the Supreme Court, and whether or not that was right is the sole question for our determination upon this appeal.

It is quite clear, as contended by the learned counsel for the appellant, and as was held by the Supreme Court, that at the

V

Opinion of the Court, per EARL, J.

termination of the life estate of the husband of the testatrix, all her real estate was to be converted into money for the purpose of distribution, according to the terms of the will, and hence that the whole estate at that time is, for the purpose of construing this will and giving effect to its provisions, to be treated as personalty.

It matters not whether the interest taken by Davis under the eighth clause of the will was a vested or contingent interest. Whatever it was, it was to be terminated by his death, in case he died before the husband of the testatrix. In that event it is quite clear that his heirs were to take by substitution in his place under the will of the testatrix. They were to take, not as heirs from him, but as heirs under the will. It is undoubtedly the rule laid down in many cases, that where a gift is made to a person, in absolute terms, as here, to him and his heirs, the estate thus given will not be held to be cut down or destroyed by a subsequent clause or provision in the will, unless the intention of the testator to do so is clearly manifested by the language used. Here the intention is clear. There can be no mistake about it. The testatrix intended, in case of the death of either of the legatees mentioned in the eighth, ninth and tenth clauses of her will, before her husband, that the heirs of the person so dying should take by substitution under the will. Hence it follows that Davis could convey nothing to his wife by the will which he executed, and that her only claim can be to take as the heir of her husband under the will of the testator. Thus we are brought to the main question in this case, which is, the meaning of the word "heirs" as used in the eighth section, and also in the ninth and tenth sections of this will.

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, who 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 testatator to designate persons who were not related to him by blood. In this case, if the testatrix had intended that the widow of Davis 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 succeed 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 person 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 or "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 SICKELS VOL. L.

4.