In re the Judicial Settlement of the Account of Schnitzler

The sixth paragraph of the last will and testament of Frederick Wolfram, deceased, contains the following provision:

“ To the legal heirs of Mrs. Lisette Lockstaedt, the sum of $2,000.00, forever, in consideration of her services to me as housekeeper

Said Lisette Lockstaedt received the income of the estate of said deceased up to and including the 1st day of December, ■1901; said Lisette Lockstaedt died on or about the 4th day of *27'April, 1908, leaving a last will and testament, which was duly admitted to probate by the Surrogate’s Court of the county of Queens on the 14th day of May, 1908, and letters testamentary thereunder were duly issued to Emile E. Rathgeber, sole executor named in said will.

Said Lisette Lockstaedt left her surviving her husband, Herman Lockstaedt, who is now confined in the Manhattan State Hospital, Ward’s Island, in the city, county and State of Hew York, as an insane person; and Paul Schnitzler, the trustee of ■Frederick Wolfram, the decedent herein, has been duly appointed as committee for said Herman Lockstaedt.

Said Lisette Lockstaedt also left her surviving her sister, Louisa Stiep, and Ferdinand August Weigle, August Carl Weigle, sons of Carolina Weigle, deceased, who was a sister of sadi Lisette Lockstaedt, and Annie Weigle, a daughter of Frederick Weigle, deceased, who was a son of Carolina Weigle, deceased. Other than the foregoing, said Lisette Lockstaedt left surviving her no other heirs at law or next of kin.

The rule of construction that has been adopted in this State is that the word “heirs,” when used in connection with personal property, means the next of kin of a decedent, or “ those related by blood, who take personal estate of one who dies intestate.” . Tillman v. Davis, 95 N. Y. 17.

(Section 2514 of the Code of Civil Procedure, subdivision 12, defines “ next of kin ” as including “ all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife.”

Therefore, the words “ legal heirs of Mrs. Lisette Lockstaedt,” used in the sixth paragraph of the will of the decedent herein, must be construed as meaning the “ next of kin ” of said Lisette Lockstaedt, or those related to her by blood who would share in the distribution of her personal estate had she *28died intestate. This, of course, excludes the husband of said Lisette Lockstaedt from any share in the legacy left, to her under the will of Frederick Wolfram, deceased; and said legacy should be distributed among those related by blood to said Lisette Lockstaedt, or her legal next of kin, according to the degree of such relationship.

The executor under the last will and testament of said Lisette Lockstaedt, deceased, is entitled to receive the income on said legacy of $2,000, from December 1, 1907, the date of the last payment to her of such income, to the time of her death, April 4, 1908:

Enter decree accordingly.