#### Holt v. Rudolph, et al.

(Decided March 18, 1919.)

Appeal from- McCracken Circuit Court.

Deeds — Construction of Words “Nearest Relatives” — Description' of Parties Who May Take. — Under a deed conveying land to “A”.' and if she died without issue, “to her nearest relatives at her' death,” on the death of “A” without issue a child af a sister who *162died before she did took an equal share in the land with her only-surviving brother.

D. *G.*PARK and E. H. PURYEAR for appellant.

A. M. NICHOLS and BRADSHAW, NICHOLS and MCDONALD for appellees.

Opinion of the Court by

Chief Justice Carroll

Affirming.

In 1875 A. N. Holt conveyed to liis daughter, Penina E. Trice, a tract of land in Ballard county “To have and to hold her natural life, unless she has an heir living, then the said land belongs to the children at her death, if no child living the said land comes back to her nearest relatives at her death. ’ ’

At the time the deed was made A. N. Holt had three living children — Penina E. Trice, the grantee in the deed, M. Y. Rudolph, a daughter, and J. P. Holt, a son.

Before the death of either A. N. Holt or his daughter, Penina, his daughter, M. V. Rudolph, died, leaving surviving her three children, who are the appellees here. Penina E. Trice died childless, and after her death this controversy came up between J. P. Holt, the only brother of Penina, and the children of her deceased sister, M. Y. Rudolph, as to the interest they had in the land conveyed by A. N. Holt to his daughter, Penina E. Trice. The issue between them turns on the meaning of the words “nearest relative,” in the deed. J. B. Holt insists that being the only brother of Penina he is her “nearest relative” and entitled to the whole of the land, while the-children of M. V. Rudolph contend that they are entitled to one-half of it as the heirs at law of M. Y. Rudolph, the only sister of Penina.

The lower court adjudged that the land should be divided equally between the brother and the children of the deceased sister, and J. P. Holt prosecutes this appeal.

So far as our investigation goes the exact question here presented has not come before this court, but there are many cases from courts of last resort in other states construing the meaning of the words “nearest of kin,” “nearest of relatives” and “next of kin,” as found in wills, and there is marked difference of opinion in the decisions as to who these words include. This difference of opinion, however, may in many instances be at*163tributed to the efforts of the court to arrive at the intention of a testator in the use of the words. In some cases it was held that the intention of the testator as gathered from the surrounding circumstances and the instrument would indicate a purpose that the estate should go to those who were in the strict meaning of the words the nearest relatives or nearest of kin, while in others the rule ascribing to these words the meaning given to them in the Statute of Descent and Distribution prevailed. Illustrative of cases on this subject are: Clark v. Mack, 161 Mich., 545, 28 L. R. A. (N. S.) 479, and the cases found in the notes; Storer v. Wheatley, 1 Penn. St. 506; Sturner v. Weitemeyer, 126 Wis. 660, 5 Ann. Cas. 508; Lemuel v. Locke, 45 N. J. Eq. 97; In Re Altdorfer, 225 Penn. St. 136; Pinkham v. Blair, 57 N. H. 226; Slosson v. Lynch, 43 Barb. N. Y. 146; Murdock v. Ward, 67 N. Y. 387.

But i.t seems to us that the decision of this court in Graves v. Spurr, 97 Ky. 651, announces the principle that is controlling in this case. In that case the testator gave to his grandchild, Eleanor Graves, certain real estate and provided it should go “at her death to her child or children, and if she leaves none, to her brother and sisters.” The question before the court was whether the estate devised to Eleanor Graves, who died without issue, went at her death to her then living brother and sisters to the exclusion of a child of one.of her sisters who died before she did, and the court held that the child of the deceased sister took his mother’s share in the estate of Eleanor Graves and was entitled to equal interest therein with her surviving sisters and brother.

We are unable to make any distinction between the meaning and effect of a provision devising the estate on the death without issue of a devisee “to her brother and sisters, ’ ’ and the meaning and effect of a provision giving the estate of the devisee upon her death without issue “to her nearest relatives.” If in the Graves ease 'a child of a deceased sister took his mother ’s part and shared equally in the estate with the surviving brother and sisters of the devisee, so in this case the children of a deceased sister should share equally in the estate of the devisee with her brother, who was her nearest relative at her death. The words “nearest relatives” in one ease and the words ““ sisters and brother” in the other *164describe tbe same class of people. In tbe Graves case tbe brother and sisters of Eleanor Graves were ber nearest relatives at ber death and in tbe case we have the nearest relative of Penina Trice was ber brother, J. P. Holt. ■

We also think this construction conforms to tbe intention of A. N. Holt in tbe deed conveying this land to bis daughter, Penina. It is hardly reasonable to assume that tbe father intended to exclude bis grandchildren from participation in tbe estate devised to Penina in tbe event she died without issue, and accordingly we think what A. N. Holt intended to and did do was to provide that in tbe event of the death of bis daughter, Penina, without issue tbe land given to ber should go to those persons who would take *the*same under tbe Statute of Descent and Distribution.

Wherefore tbe judgment is affirmed.