The conveyance from Manning V. Knickerbacker to his father, in trust, provides that the trustee or trustees shall, upon the death of the party of the first part, well and truly account for what remains of the personal and real estate, &c. to the “heirs at law and next of kin of the party of the first part, in the manner and proportions prescribed by the statutes of descent and distribution of this state, in cases of persons who die intestate.”
The deed itself does not expressly name the widow, and the question arises whether the language employed is sufficient to include her within its provisions.
As the statute of descents contains no provision for the dower right of a widow, dower being provided for by a separate statute, and as there was no legal estate vested in Manning Y. Knickerbacker, at the time of his decease, I think it can not be claimed that the widow was entitled to dower in the real estate, under the deed.
In reference to the personal estate, a different question is presented. I think it must be conceded that the expression “next of kin” may be employed in a deed or will conveying or bequeathing property so as to authorize a construction which will include the wife or widow; and the authorities hold that this must depend upon the intention to be derived from the whole instrument.
The meaning may also be ascertained by considering- the *206circumstances of the pers'on employing them, the object in view, and the context.
As bearing upon the question as to what was actually intended by the grantor, it should be noticed that the deed provides for the support of his family if he should marry and have any. This, of course, would include the wife, as long as he lived, and from this clause as well as the concluding portion of the deed, it is fairly inferable that at the time of its execution the grantor had in contemplation that he might marry and leave a widow and children surviving him upon his decease. It is unreasonable to suppose, that while he made provision for the one class, he intended to exclude the other from any participation in his estate after his death ; in fact, that he designed to cut off his widow from all enjoyment of his property, and to leave her without even a bare support. It would be contrary to the motives which ordinarily control the actions of men in making a disposition of their estate, to believe for a moment that the grantor had any such intention. The only rational theory is, that when the grantor executed this deed, he had in contemplation the probable contingency, that upon his death he might leave a widow and children surviving him, and that he intended to include under the expression “ heirs at law and next of kin,” his children and one, who, above all others, would have claims upon his protection and his bounty.
Such being the fair intendment as to his intention, I incline to think that the language employed by the grantor in the deed, is sufficient to authorize that intention to be carried out.
The estate is to be distributed in “ the manner and proportions prescribed by the statutes of descent and distribution.” What is that manner; and what are those proportions ? One third to the widow, and the residue in equal proportions to the children. (3 R. 8. 5th ed. 183, § 82.) The widow must have that one third, thus leaving the remaining two thirds for the children. -If the deed does not include the *207widow’s portion, then her one third would he entirely undisposed of. Thus only two thirds of the estate would he divided; a result which could not have been anticipated or intended by the grantor. The deed covered the whole estate, and must necessarily have been intended to dispose of all the property.
[Albany General Term, March 2, 1863.Again. The expression “in cases of persons who die intestate” qualifies the previous language, so as to indicate that it was intended to embrace the widow within the words employed. Were it otherwise, the estate could not be thus distributed. If the widow took nothing, and was entirely cut off, then the provisions of the statute, referred to, could not be carried out as provided in the deed.
It is said the deed selects but one class and directs the estate to be divided among these. If such is the case, then, as I have shown, it leaves a portion of the property undisposed of. It not only does this, but it would tolerate a disposition entirely contrary to the plain and clear intention of the party.
_ I think the construction which I have placed upon the conveyance is also upheld by the case of The Merchants’ Insurance Co. v. Hinman, (34 Barb. 410,) where it was decided that the term “ next of kin,” as used in the section of the Revised Statutes authorizing actions to be brought against the next of kin of any deceased person, to recover the value of any assets that may have been paid to them, was applicable to a widow who had received a portion of the estate. The reasons for upholding the point there decided apply in many respects to the case now under consideration.
In any view in which the question may be regarded, I think that the grantor intended to include the widow, and that she is entitled to one third of the personal estate.
The judgment entered upon the decision of the judge should therefore be affirmed, with costs of the respective parties, to be paid out of the estate.
Gould, Peclctom and Miller, Justices.]