In Re the Accounting of Davenport

Bartlett, J. This appeal involves the construction of the statute regulating the distribution of personal property. (§ 2732, Code of Civil Procedure, as amended by chapter *456 319, Laws of 1898.) This amendment took effect September 1st, 1898. The intestate died on the 15th day of September, 1898, possessed of- personal property only. She left no husband, ancestor, descendant, brother or sister, but was survived by a nephew and niece, Charles Christopher Carroll and Cliloe Carroll Rehm, children of a deceased brother, two uncles, two aunts, forty-five first cousins, thirty-three second cousins and one third cousin, making in all eighty-one next of kin, the first, second' and third cousins being descendants and representatives of deceased uncles and aunts. This appeal is taken by the special guardian of three second cousins and one third cousin, being infants over the age of fourteen years. The decree of the Surrogate’s Court divided this estate into eighty-one shares and distributed the same to all of said col-laterals. The nephew and niece appealed from this decree, insisting that they were entitled to one-half each of the net amount of the personal property to be distributed. The Appellate Division modified the decree of the surrogate, holding that the nephew and niece and the two uncles and two aunts were next of kin in equal degree, being the third degree, and that the estate should be divided into six equal parts and so distributed. The other collaterals named were excluded. The special guardian and appellant now claims that the order of the Appellate Division should be reversed and the decree of the surrogate affirmed, while the only respondents on this appeal, the nephew and niece, insist that they alone are entitled to the personal estate of the intestate. The nephew and niece have not ajipealed from the order of the Appellate Division. Prior to the amendment of 1898 subdivision 12 of this section read as follows: “ Mo representation shall be admitted among collaterals,.after brothers’ and sisters’ children.” By chapter 319 of the Laws of 1898 this subdivision was amended so as to read as follows : “ Representation shall be *457 admitted among collaterals in the same manner as allowed bylaw in reference to real estate.” The theory upon which the decree of the Surrogate’s Court rests is, that the nephew and niece, uncles and aunts are all next of kin in equal degree, and that the descendants of deceased uncles and aunts, of whom there are a large number, take by representation. It is not reasonable to assume that the legislature in amending a statute, coming down, in substance, from Justinian, providing that “no representation shall be admitted among collaterals after brothers’ and sisters’ children,” would open wide the gates to all collaterals, thus dividing up estates, in many instances, into sums so small as to benefit no one. In repealing this ancient statute the legislature provided a new rule, to the effect that “ representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate.” The descent of real property is regulated by chapter 547 of the Laws of 1896, article IX, known as the Real Property Law (V"ol. 1, p. 620). Section 287 reads as follows : “ If all the brothers and sisters of the intestate be living, the inheritance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees.” Section 288 provides for the manner in which uncles and aunts of the intestate and their descendants shall take “if there be no heir entitled to take, wider the preceding sections.” It follows that if the Surrogate’s Court was right in hold *458 ing that the law of representation was to control among col-laterals, the nephew and niece would be entitled under section 287 of the Beal Property Law to the entire estate. It is clear, from the reading of section 288, that uncles and aunts and their descendants inherit only when there are no brothers and sisters or their descendants. It, therefore, becomes necessary to construe section 2732 of the Code in the light of all its provisions and of the new rule as to representation established by the amendment of subdivision 12 of this section in 1898. Subdivision 5 reads: “ If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives.” Subdivision 10 reads: “ 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 share shall be equal.” The important question in this case is, reading all the provisions of section 2732 together, when is the rule of representation to be invoked in the distribution of personal property ? In subdivision 5, as quoted, we have the clear rule laid down that the next of kin, in equal degree to the deceased and their legal representatives, are to take, and subdivision 10 declares that where the next of kin entitled to share are in equal degree their shares shall be equal. The surviving nephew and niece, the two uncles and the two aunts are all of the same degree of kinship, to wit, the third, and under these circumstances it is unnecessary to invoke the rule of representation. To give any other construction to the present law of distribution would be, in the great majority of cases, to divide estates into shares so small as to benefit none of the next of kin. We cannot conceive that it was the intention of the legislature to establish any such rule of distribution as indicated by the decree of the Surrogate’s Court. *459 If the construction we have indicated is the true reading of this section, it follows that the order of the Appellate Division must be sustained. The result of our construction would be that if in this case the nephew and niece had not survived, but the two uncles and two aunts were living at the time of testatrix’s death, these four of equal degree would have taken the estate. If, however, the testatrix left no nephew, niece, uncle or aunt her surviving, but there Avere descendants of nepheAvs and nieces, uncles and aunts, then the rule of representation Avould apply “ in the same manner as alloAved by law in reference to real estate.” As already pointed out, under the Beal Property Law, brothers and sisters and their descendants inherit in the first instance, and if there be none then the aunts and uncles of the intestate and their descendants take. The order of the Appellate Division should be affirmed, Avitlr costs to both parties payable out of the estate.