Opinion
April, 1893.
Henry A. Gumbleton, for defendants Alice Kingston, McGough and others. Johnston Johnston, for Lewis Johnston, guardian ad litem for the infant defendants.
The only relatives whom the intestate left him surviving are collaterals, and they are so remote that the inheritance descends according to the course of the common law. R.S. title V, part 2, chap. 2, § 16; 4 R.S. (Banks Bros. 8th ed.) 2466; 4 Kent's Com. (13th ed.) 411. The principal question presented for solution is whether the second general rule or canon of the common law, that male issue shall be admitted before the female, still applies to a remote case of collateral kinship in this state. It is claimed on behalf of the infant defendants who are the descendants of deceased grandaunts of the intestate, that this rule or canon does not prevail in the United States; and the editor's foot-notes to Chase's Blackstone's Com. 385, 397; Williams Real Prop. (2d Am. ed.) 106; 3 Washb. Real Prop. (5th ed.) 12, are cited in support of this contention. The learned editors do not, however, refer us to any statute or other authority, and these notes, therefore, are practically of no value. Although the common-law rule, that males shall be admitted before females, has been superseded in certain cases in this state, yet it still obtains in cases of remote collateral kinship (4 Kent's Com. [13th ed.] 411), of which the case under consideration presents a remarkable example. It is fair to presume, under the circumstances, that the remarks of the editors in question were intended to apply only to such cases where the rule giving a preference of males has been superseded by express legislative enactment, and that they did not have in view a case where the intestate left him surviving only the issue of a granduncle, grandaunts, and the issue of a deceased grandaunt. A careful examination of the Revised Statutes, relative to the descent of real property, shows that the rule referred to has been superseded only in cases where the right to succeed to the inheritance is expressly given by statute. But the innovation, so far as it relates to collateral kinship, has not been carried farther than to the descendants of brothers and sisters' children to the remotest degree; to the brothers and sisters of the father of the intestate, and their descendants; and then to the brothers and sisters of the mother of the intestate, and their descendants; or to the brothers and sisters of both father and mother of the intestate, and their descendants, according to the various ways in which the estate may have been acquired. 4 R.S. (Banks Bros. 8th ed.) 2463-2467; 4 Kent's Com. (13th ed.) 411. The rights of greatuncles and greataunts and their descendants are laid down by Remsen, in his very handy work on Intestates' Succession in New York, in the following language: "Great-uncles and greataunts inherit no portion of the real estate of a deceased, if such deceased leaves any descendant, parent, brother, sister, descendant of a brother or sister, uncle, aunt, or descendant of an uncle or aunt. If the deceased leaves a widow, the real estate is taken subject to her rights. If the deceased leaves a husband, to whom a child was born alive, the real estate is taken subject to the husband's right of curtesy. Where greatuncles and aunts are not excluded as above, they inherit according to the course of the common law. The common-law rules or canons of descent, as given by Sir William Blackstone in the second book of his Commentaries, are as follows:
"`I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seized, in finitum; but shall never lineally ascend.
"`II. A second general rule or canon is, that the male issue shall be admitted before the female.
"`III. A third rule or canon of descent is this, that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.
"`IV. A fourth rule or canon of descent is this, that the lineal descendants, in finitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living.
"`V. A fifth rule is, that on failure of lineal descendants, or issue of the person last seized, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules.
"`VI. A sixth rule or canon, therefore, is, that the collateral heir or person last seized must be his next collateral kinsman of the whole blood.
"`VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near), unless where the lands have in fact descended from a female.'" Remsen's Intestate Successions (2d ed.), 100-102.
Chancellor KENT in referring to these peculiar features of our law of descents, says: "It is a matter of some surprise that the Revised Statutes of New York did not proceed, and in cases not provided for follow, the example of the law of descents in most of the states of the Union, and direct the inheritance to descend to the next collateral kindred, to be ascertained, as in the statute of distribution of the personal estate of intestates, by the rules of the civil law. Instead of that, we have retained in New York, in these remote cases, the solitary example of the application of the stern doctrine and rules of the common law." 4 Kent's Com. (13th ed.). And the learned commentator also furnished us with the reasons why they have not been altered, in these words: "The claims of such remote collaterals are not likely to occur very often; and as the stream of the natural affections, so remote from the object, must flow cool and languid, natural sentiments and feelings have very little concern with the question." Ibid. 411.
Inasmuch as the common-law rules or canons of descent still apply in cases where granduncles and grandaunts and their descendants inherit from the intestate, it follows that the referee was correct in his conclusions that Patrick McGough under Rule 2 takes the whole of the inheritance to the exclusion of his sisters and their descendants; and also that Patrick McGough being dead leaving Edward J. McGough his sole heir at law, the said Edward J. McGough, under Rule 4, takes the whole inheritance or surplus money to the exclusion of the decedent's surviving grandaunts and the descendants of the decedent's deceased grandaunts.
The referee's report is, therefore, confirmed.