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ingly, it was decided that notwithstanding the use of the word "then," the estate should pass to those who were his heirs at the time of his death.93

§ 853. Who Included in the Term "Next of Kin."

The term "next of kin," strictly applied, refers to the "nearest blood relations" standing in equal degree to the testator or person designated, and does not include relatives by marriage." The English rule is that the next of kin are determined without reference to the statutes of distribution, there being no contrary intention expressed in the will; thus, under a devise to the testator's next of kin, the nearest blood relations in equal degree take in preference to all others even though under the statutes of distribution, their rights might not have priority. Of course, where the nearest blood relations are those who take under the statute, there is no dispute.96 In fact, in the United States, under the statutes regarding succession to the estates of intestate decedents, the next of kin and those who take under the rules of succession will in perhaps a majority of cases be the same. But if not, the legal meaning of "next of kin" is applied in some cases, it being a term which has not acquired a

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93 Dove v. Torr, 128 Mass. 38. 94 Haraden V. Larrabee, 113 Mass. 430; Swasey v. Jaques, 144 Mass. 135, 59 Am. Rep. 65, 10 N. E. 758; Keniston v. Mayhew, 169 Mass. 166, 47 N. E. 612; Leonard v. Haworth, 171 Mass. 496, 51 N E. 7; Watson v. St. Paul City R. Co., 70 Minn. 514, 73 N. W. 400; Supreme Council v. Bennett, 47 N. J. Eq. 39, 19 Atl. 785; Platt v. Mickle, 137 N. Y. 106, 32 N. E. 1070.

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popular meaning as has the word "heirs."'97 Thus, the English rule is approved in some American cases.98

§ 854. The Same Subject: With Reference to the Statutes of Distribution.

A distinction is drawn between a gift to "next of kin” and a gift to "next of kin according to the statute," or a gift to be divided "as in case of intestacy."'99 Accordingly, under a gift over to the "next of kin" of a legatee who died leaving a brother and three nephews, the sons of a deceased brother, on the authority of Withy v. Mangles' it was held that the brother took to the exclusion of the nephews. "It is certainly difficult," said the court, "to distinguish between the expressions, 'next of kin,' 'nearest of kin,' 'nearest kindred,' and 'nearest blood relations'; and primarily the words indicate the nearest de

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97 New York L. Ins. Co. v. Hoyt, 161 N. Y. 1, 55 N. E. 299.

Where the devise was to pass to "her heirs or next of kin," the court held the presumption that the word "heirs" was used as a word of limitation only and was not rebutted by the use of the words "next of kin."-Serfass v. Serfass, 190 Pa. St. 484, 42 Atl. 888.

98 Swasey v. Jaques, 144 Mass. 135, 59 Am. Rep. 65, 10 N. E. 758; Wright v. Trustees of Methodist Episcopal Church, 1 Hoffm. Ch. (N. Y.) 202, 213; Harrison v. Ward, 58 N. C. (5 Jones Eq.) 236; Simmons v. Gooding, 40 N. C. (5 Ind. Eq.) 382; Redmond v. Burroughs, 63 N. C. 242.

Compare: Warren v. Englehart, 13 Neb. 283, 13 N. W. 401; PinkII Com. on Wills-25

ham v. Blair, 57 N. H. 226; Steel v. Kurtz, 29 Ohio St. 191; Seabright v. Seabright, 28 W. Va. 412, 466.

99 Withy v. Mangles, 4 Beav. 358, s. c. 10 Cl. & F. 215; Rook v. Attorney-General, 31 Beav. 313; Avison v. Simpson, John. 43; Elmesley v. Young, 2 Myl. & K. 780; Garrick v. Camden, 14 Ves. Jun, 372 ("as if I had died intestate"); Welsh v. Crater, 32 N. J. Eq. 177; Harrison v. Ward, 58 N. C. (5 Jones Eq.) 236, 240; Redmond v. Burroughs, 63 N. C. 242, 245.

1 Withy v. Mangles, 4 Beav. 358, 8. c. 10 Cl. & F. 215.

2 Swasey v. Jaques, 144 Mass. 135, 59 Am. Rep. 65, 10 N. E. 758, citing, Harris v. Newton, 25 Week.. R. 228; Halton v. Foster, L. R. 3 Ch. App. 505.

gree of consanguinity, and they are perhaps more frequently used in this sense than in any other. What little recent authority there is beyond that of the English courts, supports the English view; and on the whole we are inclined to adopt it." But a gift to "next of kin" with express reference to the statute or to intestacy, while it excludes those in equal degree whom the statutes postpone, includes those who take under the statutes by representation to next of kin, as well as the next of kin themselves. Those taking in such a case would be the same as the distributees under the statute."

§ 855. "Next of Kin" as a Class: As to the Date Which Determines Who Are Included.

The "next of kin" or "next of kin according to the statute" are to be ascertained at the time of the death of the person to whom they stand so related, whether the

3 Swasey v. Jaques, 144 Mass. 135, 59 Am. Rep. 65, 10 N. E. 758, citing, Wright v. Trustees of M. E. Church, 1 Hoff. Ch. (N. Y.) 202, 213; Davenport v. Hassel, 45 N. C. 29; Redmond v. Burroughs, 63 N. C. 242.

In New Hampshire, "next of kin" has been construed as equivalent to "next of kin according to the statute."-Pinkham v. Blair, 57 N. H. 226.

On the authority of Varrell v. Wendell, 20 N. H. 431, where the term in dispute was "relations" and not "next of kin."

4 Garrick v. Camden, 14 Ves. Jun. 372.

5 Lusby v. Cobb, 80 Miss. 715, 32 So. 6; Missouri Pacific Ry. Co. v.

Baier, 37 Neb. 235, 250, 55 N. W. 913; Wilkins v. Ordway, 59 N. H. 378; Duffy v. Hargan, 63 N. J. Eq. 802, 52 Atl. 1131; Snedeker v. Snedeker, 47 App. Div. (N. Y.) 471, 63 N. Y. Supp. 580, affirmed 164 N. Y. 58, 58 N. E. 4; May v. Lewis, 132 N. C. 115, 117, 43 S. E. 550; Seabright v. Seabright, 28 W. Va 412, 466.

6 Bullock v. Downes, 9 H. L. Cas. 1; Bird v. Luckie, 8 Hare 301; Gundry v. Pinninger, 1 De Gex, M. & G. 502; Dove v. Torr, 128 Mass. 38; Minot v. Harris, 13 Mass. 528; Welsh v. Crater, 3 N. J. Eq. 177; In re Letchworth's Appeal, 30 Pa. St. 175; Brent v. Washington's Adm'r, 18 Grati. (Va.) 526, 535.

gift be immediate or by way of remainder over after the expiration of a particular estate. Accordingly, where an estate is limited to one for life and upon his death over to the next of kin of the testator, if at the time of the testator's death the life tenant is his sole next of kin, he will take the property absolutely. However, a very clear expression of an intention that the next of kin be ascertained at the time of distribution may prevail over the rule. Such an intention will not be inferred, however, from the use of words of futurity, such as, after a life estate, a gift of the remainder to those "who shall be the next of kin";10 although when words of futurity are used in connection with the adverb "then," as in a bequest to the persons "who shall then be considered as my next of kin," etc.,11 or to those who "shall then be my legal representatives,''12 the next of kin will be ascertained at the time of distribution. But this effect of the word "then" may be destroyed by being followed by a relative clause, as, for instance, where the bequest is, after the death of A to the persons who shall then become entitled to take out administration of his estate in case he shall have died unmarried and intestate.18 Words

7 Welsh v. Crater, 32 N. J. Eq. 177.

8 Holloway v. Holloway, 5 Ves. Jun. 399; Lee v. Lee, 1 Drew. & S. 85; Ware v. Rowland, 2 Phillips, 635; Wharton v. Barker, 4 Kay & J. 483, 498; In re Buzby's Appeal, 61 Pa. St. 111, 114.

9 Bullock v. Downes, 9 H. L. Cas. 1.

10 Rayner v. Mowbray, 3 Bro. C. C. 234; Holloway v. Holloway, 3 Ves. Jun. 399.

But see, Doe v. Lawson, 3 East 278.

11 Wharton v. Barker, 4 Kay & J. 483.

12 Long v. Blackall, 3 Ves. 486. 13 Cable v. Cable, 16 Beav. 507. See, also, Scofield v. Olcott, 120 Ill. 362, 11 N. E. 351; In re Tucker's Will, 63 Vt. 104, 25 Am. St. Rep. 743, 21 Atl. 272.

See, also, Wheeler v. Addams, 17 Beav. 417, where the words were, "such persons as shall then

of futurity may refer only to the enjoyment of the estate. Thus, where the property of the testator was, if his widow reached the age of seventy-five and unmarried, to be divided into equal shares as "soon as may be" and distributed among his "then" surviving children, it was held that although the words "as soon as may be" were words of postponement, yet the postponement related merely to the situation and character of the estate, and that the vesting of the legacies was not postponed, but only the possession and enjoyment.1

Where there is a gift to "next of kin," or "next of kin according to the statute," of one who dies in the testator's lifetime, the persons who take are to be ascertained at the death of the testator as if he whose next of kin is referred to had died at that time.15

§856. Who Included in the Term "Relatives" or "Relations."

Although the word "relations" is one of very vague and general import, yet it has obtained a certain degree of ascertained meaning in the courts with respect to bequests of personal property; and to control the more extensive meaning of the word, it is generally construed as embracing those persons who in cases of intestacy would have taken under the statutes of distribution.16

be next of kin of A, in case she had died unmarried and intestate." Compare: Doe v. Lawson, 3 East 278, ("if I had died intestate").

14 Harris v. Harris' Estate, 82 Vt. 199, 72 Atl. 912.

15 Philips v. Evans, 4 De Gex .& S. 188; Wharton v. Barker, 4 Kay & J. 483, 502.

The rule is the same in case of a substitutional gift to heirs.Gamboa's Trusts, 4 Kay & J. 756.

16 Green v. Howard, 1 Bro. C. C. 31; Rayner v. Mowbray, 3 Bro. C. C. 234; Doe d. Thwaites v. Over, 1 Taunt. 269; Roach v. Hammond, Prec. Ch. 401; Drew v. Wakefield, 54 Me. 291, 298; Esty v. Clark, 101 Mass. 36, 3 Am. Rep.

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