Opinion
July, 1908.
Willis W. Byam, for Frederick P. Smith, administrator.
McMahon Larkin, for George P. Smith and others, cousins of deceased.
John C. Evans, special guardian of Lizzie Douty, an incompetent person, and Marguerite Smith, an infant.
Lucius M. Manley, for Clarinda, Edward and Jerome B. Nichols, aunt, and uncles of deceased.
This is a proceeding for the judicial settlement of the administrator's account herein.
The intestate died August 22, 1907, possessed of personal property only. He left no widow, ancestor, descendant, brother, or sister, but was survived by Edward Nichols, Jerome B. Nichols and Clarinda Nichols, who were his uncles and aunt, and by a number of first and second cousins. The first and second cousins each claim a portion of the estate by representation. The question of their right to any portion in the estate was raised by written objections, filed on behalf of the uncles and aunt, who claim the entire estate by inheritance.
For the purpose of a decree of distribution it becomes necessary to construe subdivision 12 of section 2732 of the Code of Civil Procedure. At the time of the death of the deceased, said subdivision read. "No representation shall be admitted among collaterals after brothers' and sisters' descendants." Under this subdivision, the descendants of brothers and sisters to the remotest degree, by representation, share in the distribution of an estate. All collateral relatives, except descendants of brothers and sisters, are precluded from sharing in the decedent's estate by representation. Where they are all of the same degree of kinship, to wit, uncles and aunts, and nephews and nieces, the rule of representation does not apply, still they take by reason of that degree.
In the case at bar, the uncles and aunt are of the third degree of kinship, while all of the cousins are of the fourth degree. It, therefore, follows that the cousins are precluded by reason of their degree of kinship, and by reason of the prohibition found in said subdivision 12, from sharing in the distribution of this estate. Matter of Davenport, 172 N.Y. 454.
Subdivision 10 of section 2732 provides that "Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal."
A decree may, therefore, be prepared and presented, providing for a distribution of this estate in equal parts to Edward Nichols, Jerome B. Nichols and Clarinda Nichols.
Decreed accordingly.