Opinion
February, 1909.
Joseph Pool, for petitioner.
Charles H. Kelby, for respondent, administrator.
The question upon this motion is whether, where the decedent has left no nearer kin than cousins and the descendants of deceased cousins, the descendants of deceased cousins are entitled to share in the distribution of personal property.
This question, upon authority, cannot be regarded as unsettled. Once Code, § 2732, sub. 12, read: "No representation shall be admitted among collaterals after brothers' and sisters' children."
Its meaning was then found to be that the representation which was permissible among the children of brothers and sisters was not to be admitted among collaterals further removed than brothers and sisters. Clements v. Babcock, 26 Misc. 90; Adee v. Campbell, 79 N.Y. 52.
In 1903, subdivision 5 of the section cited was so amended that representation in the line of brothers and sisters was extended beyond their children to their descendants of whatever degree.
In 1905, obviously to conform to subdivision 5 as thus amended, subdivision 12 was changed so as to read: "No representation shall be admitted among collaterals after brothers' and sisters' descendants."
No new standard for a right of representation among collaterals beyond brothers and sisters, or their descendants, was introduced by this change. If the former statute contained a limit of representation among collaterals who were not brothers and sisters, or their children, the same limit would prevail among collaterals who were not brothers and sisters, or their descendants.
If the word "descendants" has produced no change, then the cases under the former statute control the present discussion. But the statute as it now stands has been construed (Matter of Nichols, 60 Misc. 299), and this court is not only constrained by the authority but is persuaded by the reasoning of the learned surrogate who wrote in the case cited. He says: "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 such 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 aunts 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."
The argument which was there used to contrast the rights of uncles and cousins is equally applicable to the contrast between first cousins and second cousins.
The motion should be denied.
Motion denied.