(dissenting):
I do not disagree with my brother Scott that where the heirs at law or next of kin of a testator are given by will the same estate or interest they would take by descent their title is by descent and not by devise; but this rule, in my opinion, has no application to the present case. The-title to the property here involved does not come through the decedent. He parted with it in 1864, when he executed the deed of trust, and the respondent’s title comes through the trustees therein named. The provision in the deed of trust to the effect that, in- the event that the grantor dying without a will, whatever remained of the trust fund should be conveyed and transferred by the trustees to the person or persons who would be entitled to take the property under the intestate laws of Massachusetts, merely provided a means for ascertaining, in that contingency, the individuals who would take and the amount they should receive. The title to the property at the time of the death of the decedent was in the trustees and had they refused to transfer it ,to the respondent, they could have been compelled to do *178so. Had an administrator of Hawes been appointed he would not have taken the property in question since the trustees were obligated to transfer it according to the terms and conditions of the trust deed.
But even if it be assumed, which I do not think it can be, that the administrator of Hawes would have taken the property, then before any tax can be imposed on the transfer, the debts of the decedent would have to be ascertained and paid. No administrator, however, has been appointed.
On both grounds, therefore, I think the order appealed from is right and should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and matter remitted to surrogate as stated in opinion. Order to be settled on notice.