#### In the estate of Sigmund Sinzheimer, deceased.

*(Surrogate’s Court of New York County,*

*Filed December*8, 1886.)

1. Will — Coxstkuctiox of — Natubal heies.

m. testator died leaving a wife but no ancestors, descendants, brothers, sisters, nephews or nieces, his only next of kin at the date of his will and on the day of his death was his aunt. The third article of his will provided, “ all the rest residue and remainder of my property both real and personal, I give, devise and bequeath to the following parties, viz. and the balance to my natural heirs.” *Held,*that there was nothing in the context of the will from which it can be inferred that by the use of the word “natural” it was designed to enlarge or restrict the meaning which would have been accorded the word “heirs.” That the word “heirs” when used by the testator to indicate the beneficiaries of a bequest of personal property must be interpreted as equivalent to the term “next of kin,” in the absence of anything pointing to some other interpretation as more consonant to the testator’s intention, and that a man’s widow is neither his heir nor next of kin, it was *held,*therefore that the aunt, as the testator’s only next of kin, was entitled to his entire residuary estate.

*2.*Same.

At the date of testator’s will, T., who afterwards became his wife, owned a dwelling-house on which were two mortgages. In the lifetime of testator, and before his marriage with T. one of the mortgages was paid off by her, and satisfied of record. The moneys thus applied were borrowed by T. and pot repaid until after testator’s death. The second clause of testator’s will provided “ I hereby order and direct my executors in case my said friend T. retains at the time of my decease, the ownership of the house and lot now occupied by her, to pay and fully discharge the two mortgages one of- and the other of —, now liens upon the said house and lot, *or any balance of either or both,*and to fully free, release and discharge said property therefrom, and to satisfy such mortgage. *Held,*immaterial in what way T. acquired the money for the payment of the mortgage which was discharged, and so far as concerns that mortgage, the situation for which he made contingent testamentary provision had ceased to exist.

*Frazer $*Minor, Attys. for Admx.; *John F.*Brodsh/, Special Guardian for Maria Betty, Sophie Masiges; *Samuel Gr.*Sheyer, Atty.for Laura Levinger; *Wm. 3. Neuschafer-,*Atty. for Csecilia Odenheimer *ei al.*

*378This decedent died in May, 1885, leaving as Ms last will an instrument wMcb was executed in July, 1882. In Nov., 1884, be bad married one Christina Terns to whom by the first article ■ of the will be has bequeathed a legacy of $5,000. Mrs. Sinzbeimer survived her busbaud and as administratrix *c. t. a.*of bis estate is now .accounting before the surrogate. Upon this accounting two questions have arisen for determination.

*First.*"Wliat is the true construction of the third article of the will ? Its language is as follows :

“ All the rest, residue and remainder of my property both real and personal I give, devise and bequeath to the following parties, viz : Five thousand dollars to Katie Terns and the balance to my natural heirs.” Now who are the testator’s *natural heirs ?*No children were born of his marriage. He left him surviving no ancestors, descendants, brothers, sisters, nephews or nieces. So far as appears, Ms only next of Mn at the date of his will and on the day of his death, was Ms aunt Laura Levinger.

There can be no doubt that if he had given his residuary estate (which consists wholly of personalty) to *his*“ *heirs*” instead of to Ms“ *natural heirs*” this aunt would have been entitled thereto to the exclusion of all other persons. The recent- decision of the court of appeals in *Tillman*v. Davis, 95 N. Y., 17, has conclusively established that the word “ heirs,” when used by a testator to Mdicate the beneficiaries of a bequest of personal property must be interpreted as equivalent to the term “next of Mn ” in the absence of anytMng pointing to some other Mter-pretation as more consonant to the testator’s intention; and that a man’s widow is neither his heir nor his next of Mn, has been repeatedly declared by the courts of tins State. *(Drake*v. *Pell,*3 Edw. Ch., 251; *Slosson*v. Lynch, 43 Barb., 147; *Murdock*v. *Ward,*67 N. Y., 387; *Keteltas*v. *Keteltas,*72 N. Y., 313; *Tillman*v. *Davis, supra.)*Unless, therefore, this testator’s use of the word “ natural ” in connection with the word “ heirs ” somehow affects the signification wMch the latter word by itself would have, I must regard the case last cited as decisive of the matter under discussion. Counsel have referred me to two reported testamentary causes in which the expression “natural heirs” has been the subject of judicial interpretation. These are *Miller*v. *Churchill,*78 N. C., 372 and *Ludlum*v. *Otis,*15 Hun, 410. In the former the bequest was in these words. I bequeath to my sisters Nancy and Martha each one thousand dollars, and, in the event of the death of either without leavmg natural heirs, the amount I have bequeathed shall go to the survivor.” It was held that the testator must have used the term “ natural heirs ” as an equivalent for the term “ children” - or “ issue.”

For very palpable reasons that conclusion was unavoidable.

The testator whose will was before the supreme court of this *379department in *Ludlum*v. *Otis, sufra,*left him surviving a sister, his mother and several cousins. He left neither wife nor child. It was held that a bequest given by his will to his “ natural heirs ” belonged to his mother and sister, they being the persons who, because of proximity of blood, would have succeeded to his personal property in the event that he had died intestate.

The case just cited differs from the case at bar in this particular. In the former it was of no practical consequence whether the term “ natural heirs ” was construed as meaning “heirs,” or was held to have no meaning at all. Upon the one theory the mother and daughter were entitled as next of kin to take under the will; upon the other they were similarly entitled to take under the Statute of Distributions. But in, the present case) if the disposition of the residuary estate is to stand, the testator’s aunt will receive the benefit, while if it is to be held void because of uncertainty in the description of the legatee the property thus ineffectually bequeathed must fall to his widow. I do not find sufficient ground for holding the bequest of the residue invalid, in the mere fact that the testator has somewhat obscured his intentions regarding it by tacking the adjective “ natural ” to the noun “heirs.”

There is nothing in the context of the will, nothing, so far as appears, in the circumstances of the testator or the state of his family, from which it can be inferred or suspected that by his use of the word, “ natural ” he designed either to enlarge or restrict the meaning which would have been accorded to the word “ heirs ” standing by itself. •

I hold, therefore, that Laura Levinger is entitled as the testator’s only next of kin to his entire residuary estate.

*Second.*At the date of this testator’s will Miss Terns, who afterwards became his wife, was the owner of a certain dwelling house in this city on which there were then subsisting two mortgages, one of $8,000, the other of $2,000.

In the life-time of the testator and before his marriage to Miss Terns the $2,000 mortgage was paid off by her and was satisfied of record.

It is admitted that the moneys thus applied were borrowed by Miss Terns, and that the lender was not repaid until after the testator’s death.

It is now claimed in her behalf that under the second article of the will, she is entitled to be reimbursed for this payment. Such second article is in these words:

“ I hereby order and direct my executors,- in case my said friend, Christina Martha Terns, retains at the time of my decease the ownership of the house and lot now owned and occupied by her, to pay and fully discharge the two mortgages, one of $8,000, and. the other of $2,000, now liens upon the said house *380and lot, *or any balance of either or*both, and to fully free, release and discharge said property therefrom and to satisfy such mortgages.”

‘ The portion of the foregoing provision which I have italicized is inconsistent with any other interpretation than this : that to the extent that the mortgages in question were a lien upon the house and lot at the time of the testator’s death, and to that extent *only*are his executors authorized to apply all or part of the sum of $10,000 for discharging the incumbrances upon such property.

Whether Miss Terns borrowed the $2,000, or found it, or received it as a gift of the testator, or otherwise obtained it, is therefore immaterial.

The smaller of the two mortgages was in fact discharged before the testator’s death, and so far as concerns that mortgage the situation for which he made contingent testamentary provision has ceased to exist.