#### Clarence M. Westcott et al., Plaintiffs, *v.*John H. Higgins, as Executor, etc., et al., Defendants.

(Supreme Court, New York Special Term,

June, 1898.)

.Will — Construction. — Next of kin.

A testator made a will in 1878, which contained the following provision: “ I give and bequeath unto the children of my sister E. W. P.

each the sum of $10,000. In the event, however, either of said children shall die before me leaving issue surviving me then in that event I give and bequeath the sum of $10,000 which the one so dying would have taken if living unto his or her issue. If, however, either of said children shall die before me without leaving issue surviving me; then in that event I give and bequeath the sum of $10,000 which the one so *'*dying would have taken, if living, unto the survivors or survivor of them, said children of my said sister E. W. P. and to the issue , of such of them as shall have previously died leaving issue, such issue to take the part or share which his, her or their parent or parents would have taken, if living.” The will contained a similar provision -as to the children of the testator’s other brothers and sisters.

Held, that it was not the .intention of the testator to make bequests for the benefit of the next of kin of nephews and nieces, who had died childless many years before the making of the will.

*23The issue in this action was the construction to he placed on the paragraph of the last will and testament of Nathaniel D. Higgins, quoted in the opinion. There was no dispute as to. any of the facts in the case, the only question being one of law (were plaintiffs entitled to. recover, as legatees, under said will of Nathaniel D. Higgins). This will was made, in 1878, and the testator died in January, 1882.

Henry W. Sackett and C. L. Westcott, for plaintiffs.

Lewis Cass Ledyard (Carter & Ledyard, of counsel), for defendants.

Truax, J.

The testator, Nathaniel D. Higgins, had several brothers and sisters, some of whom died before he made his will, and some of whom were living at the time of the making of said will in 1878. These brothers and sisters had many children, some of whom were living at the time the said Nathaniel D. Higgins made his will and some of whom had died long prior to the making of the will. Some of these children of brothers and sisters of said Higgins had died childless many years'prior to the making of said will, and some of them had died prior to the making of the will leaving children them surviving. For instance, the said Nathaniel D. Higgins had a brother named George Higgins. This George Higgins had a son who was bom in 1837, and died in 1840; he also had another son who was born in 1838 and died in 1843. Another brother of the testator, Amos, had had twelve children, four of whom had died before the making of the will, and three of whom had died childless, infants, a great many years before the making of the will. Altogether ten children of the testator’s brothers and sisters had died prior to the making of the will of the said Nathaniel D. Higgins. This will contained the following provision relating to¡ Ellen W. Perley, a sister of the testator: *“*I give and bequeath unto the children of my sister, Ellen W. Perley, each the sum of $10,000. In the event, however, either of said children shall die before me leaving issue surviving me, then and in that event 1 give and. bequeath the sum of $10,000, which the one so dying would have taken if living nnto his or her issue. If, however, either of said children shall die before me without leaving issue surviving me, then and in that event I give and bequeath the sum of $10,000,. which the one so dying would have taken, if living, unto the survivors or survivor of them, said children of my said sister, Ellen W. Perley, and to the issue of such of them as shall have previously died leaving issue, such issue *24to take the part or share which his, her or their.parent or parents' would have taken, if living.” The said will also contained the same prolusion relating to the children of the testator’s brothers, Amos, Arthur and George, and to his other sisters, Jane and Charlotte. The plaintiffs are the children of Anna Perley Westcott, who was a daughter of the said Ellen W. Perley. The said Anna Perley Westcott died on or about the 23d day of December, 1875. The said Ellen W. Perley also had another child, named Fannie, whó died childless in 1871. The plaintiffs claim (see brief of plaintiffs’ counsel) that they are entitled to $10,000 as the only next of kin of their deceased mother, Anna Perley Westcott, and to the additional sum of $3,333.83, as the next of kin of their deceased aunt, Fannie Perley Higgins. I cannot believe that it was the intention of the testator to make a bequest for the benefit of the next of kin of nephews and nieces who had died childless forty years before the making of Ms will. And yet if the' contention of the plaintiffs is sustained such would be the result. A careful examination of the book does .not aid me in determining what the testator’s intention was. In fact, such an examination helps but to confuse. The legal question presented is a difficult and extraordinary one, about wMch judges and text writers, both in this country, and England, have differed. I shall not try to reconcile the conclusions of these differing judges and text writers. It is the duty of a court to carry out the intention of the testator. I do not believe that it was his intention to give the sum of $10,000 to the next Of kin of the child of George Higgins, who was bom in 1837 and died in 1840. If he did not intend to.give that child that sum I do not believe that he intended to give the next of kin of plaintiff’s aunt, Fannie Perley Higgins, the sum $10,000, and I do not believe that he intended to give the children of plaintiff’s mother the sum of $10,000. Complaint dismissed, with costs.

Complaint dismissed, with costs.