Opinion
August 20, 1938.
Thomas G. Frost, for the administratrix.
The administratrix has filed her account. The decedent died intestate on the 18th day of July, 1935, leaving her surviving ten nephews and nieces. In the proposed decree settling her accounts she seeks to distribute the estate, one-third to herself, a niece, one-twelfth to each of the four children of one deceased brother, and one-fifteenth to each of the five children of another deceased brother. This method of distribution is erroneous.
The distribution of this intestate estate is governed by subdivision 8 of section 83 of the Decedent Estate Law, which reads as follows: "Where the distributees of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal." The administratrix is proceeding on the theory that subdivisions 6 and 9 of section 83 of the Decedent Estate Law authorize the distribution proposed by her. The mere fact that the deceased sister and brothers of the decedent each left surviving a different number of children does not bring the distribution of this estate within the provisions of subdivisions 6 and 9 of section 83 of the Decedent Estate Law. These subdivisions apply only to the distributees of an estate where the surviving next of kin are not equally related to the decedent. That is not the case here. This decedent left surviving next of kin all of whom are of equal degree in relationship to her.
I hold, therefore, that the estate of this decedent should be distributed equally between the ten surviving nephews and nieces.
Submit decree settling the account accordingly.