Blossom v. Sidway , 5 Redf. 389 ( 1882 )

The Surrogate.

The first question presented by the argument of the counsel is, whether the discretion to be exercised by the executor and his wife extends to anything more than the mere distribution of the various lots of equal value into which the articles mentioned in the said clause are to be divided by them, or whether they may allot, to the several legatees, such articles, of whatever value, as they may deem proper. I think the intent of the testator was to have the allotments equal, since he has directed that the articles be valued. This would be unnecessary, were the discretion intended to be without limit, and to authorize the executor and his wife to make the allotment without regard to their valuation. The discretion reposed in the executor and his wife, I think only relates to the allotment of the various equal shares, to the several legatees.

The next question presented is as to whom the testator intended to include in the term, ‘ ‘ my relatives mentioned in my will.” The word “ relatives,” used generally in a will, is construed to mean the testator’s next of kin, who would take under the statute of distributions, in case he had died intestate (2 Jarm. on Wills, 4 Am. ed., 34). In this case, it is used in a limited sense, and the relatives are specifically mentioned, to wit: “The relatives mentioned in my will,” and the rule does not apply, as the identity of the relatives to be benefited is established by the limitation (Id., 35).

But there are legatees who are relatives by marriage, and the question is further made, whether they can be brought in, to share in the legacy given by this clause. I think not. A gift to next of kin or relatives does not extend to relatives by affinity, unless the testator has subjoined to the gift expressions declaratory of an intention to include them ; such as a bequest expressly to relatives “ by blood or marriage ” (Maitland v. Adair, 3 Ves., 231 ; Devisme v. Mellish, 5 Id., 529).

It follows, from the foregoing construction of the clause in dispute, that the executor and his wife will appraise and divide the-property mentioned therein into shares of equal value, and distribute the various shares to the legatees who are mentioned in the will, being blood relatives of the testator ; allotting the shares, in their discretion, to the several legatees. The allotment to be per capita and not per stirpes (2 Jarm. on Wills, 4 Am. ed., 35).

Ordered accordingly.