Adee v. . Campbell

Rapallo, J. The intestate having left no widow or descendant, his personal estate was distributable among his collateral next of loin in equal degree and their legal representatives. (2 R. S., 96, § 75, subd., 5.) It is provided however by the same section (subd., 11) that no representation shall be admitted among collaterals, after brothers and sisters children. Our statute is in this respect the same as that of England, and it has long been settled that the brothers and sisters referred to, are those of the intestate. (Carter v. Crawley, T. Raymond, 496; Doughty v. Stilwell, 1 Bradf., 300.) In the present case, the intestate having left no descendant or parent, brother or sister, or descendant of any brother or sister, nor any uncle or aunt, his nearest of kin were his irst cousins. The personal property was properly distributed among them. *54 The appellants are children of some deceased, first cousins of the intestate, and claim to be entitled to take as representatives of their parents, the shares to which such parents would have been entitled if living. This claim is excluded by the statute. The children of deceased cousins are much more remote in degree of kinship than those of deceased brothers and sisters of the intestate, and cannot, under the express provision of the statute cited, be admitted as representatives, when persons nearer of kin are living. The statute provides for no representation among collaterals except in the case of brothers and sisters children. If there are none of these, the nearest of kin in equal degree, take the whole. (See Hurtin v. Proal, 3 Bradf., 414.) The appellant contends that the limit of representation applies only where there are brothers and sisters children, and that consequently where the intestate leaves none, the. right of representation among more remote collaterals is unlimited. Such a construction would be in the highest degree unreasonable, and contrary to the plain intent of the statute. The judgment should be affirmed. All concur. Judgment affirmed.