The question is, were the bond and mortgage included in the bequest to John E. Lee ?
It is true, as contended by the appellant’s counsel, that the language of the will is sufficiently broad to carry the bond and mortgage to Lee, but we are at liberty in giving construction to this provision to look at the surrounding-circumstances, the situation, condition in life of the testator, the amount of the estate and. the condition of those naturally dependent upon her bounty.
Where there are two equally, probable interpretations of the language of a will, “that one is to be adopted which prefers the kin of the testator to strangers.” (Quinn v. Hardenbrook, 54 N. Y., 83; Wood v. Mitcham, 92 id., 375.)
Words in general, whether technical or popular, are to be taken in their plain and usual sense, unless a clear intention to use them in another sense can be collected and that sense ascertained. (Schouler on Wills, § 472.)
A broad or restricted meaning may be given words to arrive at the intention. The terms that are used in a will are to be construed according to the ordinary acceptation of language in the transactions of mankind. (Williams on Executors, § 1080.)
The bequests to Effie Dwight, who, we assume, was a relative of the deceased, and to her sister and Mrs. Goff, were of small value.
She was providing in her will for the education and support of her only child, twelve years of age. The amount that she could leave him in any event was small; his welfare was, undoubtedly, the chief thing she had in mind. No reason appears why she should give to Mr. Lee, who, so far as appears, had no claim upon her bounty, nearly one-fourth of her entire estate. Had she intended *528to bequeath to Lee the bond and mortgage she would naturally have mentioned them specifically.' A person learned in the law would have understood that the words used included the bond which represented the indebtedness and carried the mortgage given as collateral to it, but it may well be doubted if Mrs. Dwight so understood it.
Mrs. Dwight knew that the real estate upon which the mortgage was a lien had been transferred to Crittenden. He had, three months before she made her will, paid interest thereon to Mr. Lee, the testator’s agent. We assume that he paid it to Mrs. Dwight as it was his duty to do. Knowing that Crittenden had purchased the land upon which her mortgage was a hen, and that he intended to pay the mortgage, she undoubtedly had been informed that he had retained from the purchase-price a sum equal to the amount of the mortgage, under tlie circumstances she would naturally look to him as the person to pay the mortgage, and not to Mr. and Mrs. Lee The language used in the bequest to Lee, to the comprehension of a person in the station of life of Mrs. Dwight, would include only the indebtedness of Mr. and Mrs. Lee mentioned, amounting to $200, and a small amount due from Lee. As she intended to make Mr. Lee the executor of her will she was willing to forgive him and his wife their indebtedness to her, but had not in mind, we think, to include the bond and mortgage. To hold that it includes the bond and mortgage excites surprise and inquiry as to the testator’s reasons for giving so large a proportion of her estate to one having, so far as appears, no claim upon her bounty, to the detriment of a son whose welfare, we must assume, was a matter of solicitude to her. This construction makes the plan and qmiqiose of the will harmonious.
The construction given to the will by the surrogate meets with our approval, and the decree appealed from should be affirmed, with costs to the respondent, to be paid out of the estate.
Dwight, P. J., and Macomber, J,, concurred.Decree of the surrogate of Allegany county appealed from affirmed,. with costs to the respondent, to be paid out of the estate.