I concur in the view of Judge O'BRIEN regarding the difficulties and perplexities which attend the construction of wills. I admit that they proceed largely from the inaccurate use of language in the instruments, but I insist that they are also largely occasioned by the conflicting decisions of the courts. I think a review of the numerous antagonistic decisions cited by Mr. Jarman in his work on Wills makes it *Page 283 apparent that this is a most potent factor in the creation of the difficulties. The trite aphorism that the intention of the testator is to be deemed the polar star in the interpretation of a will has, it seems to me, but little application where the very subject in controversy is, what was that intention. The state has a great interest in this subject, for it is certainly to the public detriment that the construction of wills should create such a large and increasing field for litigation, thus involving not only uncertainty in the tenure and titles of property, but imposing a great cost on the state itself. It is conceded that in its primary meaning the term "next of kin" includes neither a widow nor a husband. I think that it is settled by authority in this state that a direction that the property shall be distributed among the next of kin the same as in the case of intestacy is not sufficient to extend the meaning of the term "next of kin" so to include either of the relatives named, though he or she would share in the property of the deceased if it were a case of actual intestacy. The clause of the will in construction on this appeal is: "In case of the death of any of the beneficiaries or persons entitled to share in the investments herein directed to be made before the time limited for the payment thereof, my will is that the same be paid over to their next of kin as, according to the statute of distributions, their personal estates would be divided and distributed." The argument is that the property cannot be paid over according to the Statute of Distributions unless the widow be allowed to share. I am not disposed to underrate the force of this contention, and if it were an original proposition it might command my assent. Let us see, however, how far it is consistent with the decided cases. InMurdock v. Ward (67 N.Y. 387) the will provided that upon the death of the beneficiaries without receiving the principal then it was "to be equally divided among and paid to the persons entitled thereto as their, or either of their, next of kin, according to the laws of the State of New York, and as if the same were personal property, and they, or either of them, had died intestate." The same argument was there made for extending *Page 284 the meaning of "next of kin" as has been advanced in this case. Yet this court held, reversing the decision of the General Term, that the widow did not take. In Luce v. Dunham (69 N.Y. 36) the will, after a gift to testator's wife of the homestead and a legacy, proceeded: "All the rest, residue and remainder of my estate, real and personal, present and hereafter to be acquired and wherever situated, I give, devise and bequeath, and do desire and will that the same shall be divided among my heirs and next of kin in the same manner as it would be by the laws of the State of New York had I died intestate." It was held that the widow did not take, and it is to be remarked that in that case the decision was against the testator's own widow, not as here against the widow of a legatee. Speaking of the argument made here Judge RAPALLO said: "This same position was taken and argued by counsel with much force in the case of Murdock v. Ward (67 N.Y. 387), and it was urged that a distribution could not be made according to the statute without including the widow. Some of the judges, while the case was under consideration in this court, were strongly inclined to maintain the position contended for, but a full examination of the authorities constrained them to abandon it, and it was finally held that where the bequest was to the next of kin, the addition of the words, `according to the statute as in case of intestacy,' was not sufficient to enlarge the class of legatees so as to include the widow." The question again came before this court in Platt v. Mickle (137 N.Y. 106). In that case the will read: "And I thereupon after his (the life tenant's) decease give * * * said rest and residue * * * to such person or persons as shall then be the heirs at law and next of kin of my grandson George Benjamin respectively, in such parts, shares and proportions as, having regard to the form in which the said estate shall then exist, such heirs and next of kin would have been then respectively entitled thereto and therein by law if my said grandson had been seized thereof in fee simple as an inheritance on the part of his mother, or possessed of the same, and he had died intestate, *Page 285 and they had inherited or become entitled thereto from my said grandson." Again it was held that under such a provision the widow was not entitled to share in the estate. Judge GRAY there wrote: "The case is governed by Murdock v. Ward (67 N.Y. 387), and the other authorities cited below by Judge LAWRENCE, in his careful opinion. I find no authority for giving to these words an enlarged sense, in the absence of something in the context, or of some requirement of a statute, which would furnish the court with a reason for doing so." Plainly the learned judge did not deem the qualification that the distribution should be made as in case of intestacy to constitute "something in the context" to justify interpreting the term "next of kin" in an enlarged sense. Of course, the language used differs in the different cases, but the effect of it is the same in all. In fact, the appellant's argument could have been more forcibly made in any of the cases cited than in the one before us. Nor is there any such uniformity of sentiment on this subject as there is with reference to the disinheritance of children, an intent to effect which the courts are loath to impute to a testator unless it be unmistakably expressed, and properly loath, because in all probability the testator had no such intent. It might be more decent, where a large estate is given to a man for life, the principal to go to his issue or to his heirs, to make some provision for his wife, in case she survives him. An examination of the cases, however, shows that it is not the prevalent practice; and that a testator rarely makes provision for the surviving wife of the life tenant, and in the analogous case of a surviving husband practically never makes provision for him, unless in a few exceptional instances where the husband is in existence at the time and known to the testator.
Reliance is placed by the appellant on the case of Betsinger v. Chapman (88 N.Y. 487). It was there held that a widow could bring an action to recover her distributive share under sections 9 and 10, title 5, chapter 6, part 2 of the Revised Statutes, authorizing such suits to be maintained "by any legatee or by any of the next of kin." That decision proceeded, *Page 286 however, on the ground that unless the term "next of kin" in this title of the statute was given this extended meaning, no provision was to be there found providing for the citation of the widow on an accounting for making a decree thereon conclusive against her, or for enabling a creditor of the estate to recover from her the value of the assets thereof she might have received. In that case Judge ANDREWS refers to the cases of Murdock v.Ward (67 N.Y. 387) and Luce v. Dunham (69 N.Y. 36), but in no respect does he criticise either. The decision cannot, therefore, be considered as impairing the authority of the earlier cases. However that may be, Platt v. Mickle (supra) is the last authority in this court and is controlling. I think that the decisions of this court, on the construction of provisions in wills similar to the one now before us, have created a rule of property which we are not justified in overthrowing, especially where the proposition that the testator might have had a different intent from that which we have ascribed to him is the merest surmise. Probably he never thought on the subject, and what testamentary disposition he would have made had the contingency that has arisen been called to his attention, no one can tell.
The order appealed from should be affirmed, with costs payable out of the estate.