In re the Judicial Settlement of the Account of Proceedings of Youngs

Fowler, S. This matter now comes before the surrogate on the settlement of a decree which provides for the distribution of intestate’s personal property. The point submitted to the surrogate involves the construction of the Statute of Distributions of this State, as finally expressed in the Decedent Estate Law. George W. Adams died intestate in this county on the 20th day of November, 1909. The surplus of his personal property is now to be distributed. The point presented to the surrogate for determination is, whether or not on such distribution of the property of the intestate, who leaves no parents, no wife, no children or descendants of children him surviving, an only aunt (in this instance ex parte materna) is entitled to distribution to the exclusion of the children and the grandchildren of deceased aunts and of deceased uncles of intestate. The aunt in question is, by any recognized method of computation, the nearest of kin in degree of propinquity to intestate, and unless representation is permissible among the descendants of deceased uncles and of deceased aunts of intestate, the aunt will, in this instance, take all to the exclusion of such descendants. — 367 — The points involved have been extremely well argued at the bar, and with such research and profundity that it would be ungracious, I think, in the surrogate not to notice some of the elaborate historical arguments of counsel which the surrogate deems himself bound to exclude in his conclusions. The property passing under the decree is large, and the interests affected by it are important, but above all in importance is the question itself. It demanded the careful consideration which it certainly has received at the hands of counsel. It is, of course, entirely familiar learning that the English Statute of Distributions in 1774 became, by express re-enactment, a part of the law of this State, as it was probably before such re-enactment. It was only revised by the revisers of the Revised Statutes of 1830, without substantial change. Revisers’ Note to 2 R. S. 96, § 75. Chapter 686 of the Laws of 1893 next transferred without material change the Statute of Distributions as contained in the Revised Statutes (2 R. S. 96, § 75) to section 2732 of the Code of Civil Procedure. If we disregard a temporary alteration of the year 1898 (chap. 319), soon removed, in effect, from the statute book (Laws of 1905, chap 539), the Statute of Distributions, as re-enacted in the Code of Civil Procedure by chapter 686 of the Laws of 1893, remained substantially as displayed in the Revised Statutes, at least until the year 1903, when chapter 367 of the Laws of 1903 varied the language of subdivision 5 of section 75, 2 R. S. 96. Chapter 539, Laws of 1905, in like manner somewhat varied the language of subdivision 11 of section 75, 2 R. S. 97. In other respects the Statute of Distributions, as first enacted, temp. Charles II, remains in substance on the present statute book of this State. The proposition now argued for the remoter kindred of the intestate in this cause is, that the variations of language — 368 — so made by the acts of 1903 (chap. 367) and of 1905 (chap. 539) introduced an entirely new. rule in the Statute of Distributions, viz.: one extending representation and partibility among collaterals of every degree. This claim is large and counter to the principle hitherto underlying the statute, and any other of its amendments except the temporary one of 1898. If I understand the elaborate and learned argument of counsel for Sarah A. L. Vanderbilt and other persons who are the children and grandchildren of deceased aunts or uncles of the intestate, it is contended in their behalf, that the Statute of Distributions in force in this State until 1903 was in reality a re-enactment of the English Statute of Distributions (22 and 23 Car II, chap. 10, amended 1 Jac. II, chap. 171) ; that the English statute was derived from the 118th Novell of Justinian, and that the Legislature of this State, fully recognizing this established fact, intended by the passage of chapter 367, Laws of 1903, and chapter 539, Laws of 1905, to change the principle on which the Justinian law scheme and the Statute of Distributions were originally framed, and to substitute therefor a principle which is more consistent with the present institutions of this State and with a wider diffusion of property among next of kin of remoter degrees of propinquity to the intestate. If this argument, so elaborately constructed and fortified by reference to Latin writers of authority and distinction, were, indeed, foundfed on conceded facts, there would be a practical difficulty in following it to its logical conclusion. The English Statute of Distributions, now substantially our own statute, is comparatively ancient, and it has become imbedded in a mass of well-considered construction which deprives its adventitious origin of any practical significance. Statutes of this State, in force for upwards of 200 years, ought not, I think, to be construed on the basis of assumptions concerning — 369 — their remote origin and intention, and their consequent unfitness for continuation. The surrogate would not dare to venture to construe an ancient statute of this State on any subtlety not precisely sanctioned by authority. That cardinal maxim of the fundamental law of this State, “ stare decisis, et non quieta movere,” Would prevent such audacity. It has always been the rule that any judicial officer of this State, even the most exalted, must abide by established authority and not substitute his own conceptions therefor. Manning v. Manning, 1 Johns. Ch. 527, 530. This rule, so plainly announced by Chancellor Kent, is especially applicable to such inferior courts as those of the surrogates, possessed of a limited or special jurisdiction. Within bounds, principles of testamentary law, when taken literally and bodily from Roman or other ancient sources, may doubtless receive illustration by reference to the original source and even to recognized commentaries on the original text itself. This course has the sanction of high authority. Farther than that the ecclesiastical courts of England, or the probate courts of this State, have never felt authorized to go. When the consideration of such courts is directed to statute law, they must look wholly to the text of the statute and to decisions on its text. The surrogate knows of no ancient statute of England or of this country (and the same “ Statute of Distributions ” is in substance in force in both countries) which has been construed on such remote analogies or principles as those suggested in this cause by the counsel for the more distant kindred of intestate. While such arguments are no doubt very proper for counsel, seeking in every legitimate way to illuminate paths of difficulty, and it is pleasant to see them, they would, I think, ill-become a modern court of justice to adopt. Positive law is eminently a practical science, one intended to regulate and resolve the affairs and the interests of the living. Its consistent application, according to established — 370 — usuage, is most important. • In the construction of statutes it would seem to be unwise to reach for novelties or to attempt to pursue recondite historical theories to their logical conclusion, if such theories contravene the approved experience of centuries. Profound historical inquiries, doubtless, have their proper use in law as elsewhere, but at this time of day they are seldom determinative of practical legal conclusions, although at rare intervals they may be of great service in ascertaining the vis virida, of a principle which has animated or inspired the development of legal doctrine and the just application of such doctrine to the affairs of those who are obliged to come into courts of justice for the solution of their difficulties or for practical assistance. Certainly the construction of amendments to an ancient statute, such as the “ Statute of Distributions,” settled in the reign of Charles II and James II, the surrogate cannot, I think, with sobriety, be expected to make on any theory elaborated from the ascribed motives for the legislation of Justinian. But for the satisfaction of counsel we may stop awhile to examine the validity of the assumptions involved in their historical contention. There is no doubt recognized judicial authority for their claim that the original “ Statute of Distributions ” was founded on the 118th Novell of Justinian (Matter of Suckley, 11 Hun, 344; Adee v. Campbell, 14 id. 551), although the court of Appeals in affirming the judgment in the latter case (79 N. Y. 52), made no reference whatever to the historical allusions below. In Matter of Davenport, the court simply refers generally to the Justinianian legislation. 172 N. Y. 460. For a long time material differences in principle have, however, been noticed in the course of critical comparison of the Statute of Distributions with the 114th and 127th Novells of Justinian. .4 Burns Ecc. Law, 555. Whenever courts of justice enter on the field of the his- — 371 — torian it is for the purpose of enabling them to take judicial notice of facts, and in such cases the parties are always at liberty to prove the facts to be otherwise. There is no such thing as an adjudication of a historical problem by a court of justice. While the statement that the English Statute of Distributions was taken from the 118th Novell of Justinian was adopted by no less a personage than the great commentator on American Law (2 Kent Com. 422), the statement itself was not original with him. See Ld. Raym. 573. That Kent did not stop to investigate with his usual profundity a matter so collateral to the real purposes of his Commentaries is perhaps evident. Blackstone, on the other hand, in his equally famous Commentaries on the Laws of England, is much more guarded in his statement on this subject than is Kent. 2 Black. Comm. 516. Blackstone does not profess to fix the origin of the Statute of Distributions. That Kent’s statement was most general is evident from the fact that he made no reference whatever to the 127th Novell of Justinian, although it was an important part of the Justinianian scheme for the distribution of the property of intestates, and, indeed, in reference to the cause before the surrogate Novella CXXVII “ De fratrum flliis,” cap. I, would be the most important if the Justinianian legislation had in fact any real or precise relationship to the origin or construction of the old Statute of Distributions still, in substance, in force in this State. See Revisers’ Note to 2 R. S. 96, § 75. That the Statute of Distributions was founded on the Justinianian scheme, modern historical scholars have at last come to doubt. That statute probably finds its logical and immediate origin in the sequence of ancient customs of English-speaking peoples, as those customs were established in the reign of Charles II; but more particularly in the ancient practice of the ecclesiastical courts in granting letters of administration. Palmer v. Allicock, 3 Mod. 61; 2 Williams Admrs. — 372 — & Exrs. (ed of 1838) 1060. Precisely what law controlled this practice is uncertain. The ecclesiastics, though canonists and civilians, were eminently practical men, and they were, above all, Englishmen. Whether or not the customs and practice of the ecclesiastical courts in England do not in some respects go back in turn to a time anterior to even the legislation of Justinian, is one of the interesting problems of modern historical scholarship, as yet, I believe in this instance, unsolved. But I do not regard these things as of real importance in the solution of this matter. My only object in referring to them at all is to disclose to counsel that the surrogate has not left out of serious consideration the real force of their contention. It is not to such things as the theory of the Justinianian legislation, but to the final decisions of the courts of justice on the text of the Statute of Distributions that the surrogate must look for light and guidance when he comes to consider the effect of the recent amendments. These decisions disclose fundamentally that from the earliest times in the distribution of the property called in our law “ personal ” (as contradistinguished from the partition of the property called by common lawyers “ real property ”) representation was not to be admitted among remote collaterals of intestates. This basic rule is found, of course, in the text of the Statute of Distributions (Car. II, chap. 10, §§ 7, 22, 23; N. Y. Laws of 1774, chap. 11; 5 Col. N. Y. Laws, 614, chap. 649; Laws of 1787, chap. 38; 2 J. & V. 71; 1 K. & R. 535, § 15; 1 R. L. of 1813, § 16; 2 R. S. 97, § 11; Laws of 1893, chap 686, enacting Code Civ. Pro., § 2732, subd. 12), but it received its most precise application from the construction soon given by the courts to the text of the statute. Not long after the first enactment of the Statute of Distributions in 1683, the question arose whether the words of the statute providing “ that there be no representation among collaterals after brothers’' and — 373 — sisters’ children ” were to be intended of brothers and sisters of intestate only, or of another beside intestate, and the court held that representation should be confined to the brothers and sisters of intestate; that the intestate was the subject of the act, and that it was his brothers and sisters only who were intended. Maw v. Harding, 2 Vern. 233. The principle of this case was soon afterward applied in Pett v. Pett, 1 P. Wms. 25; 1 Salk. 250. Since then it has never been doubted that among” collaterals representation is confined, by the Statute of Distributions, to the intestate’s immediate fraternal kindred. Doughty v. Stilwell, 1 Bradf. 300, 302; Matter of Suckley, 11 Hun, 244; Adee v. Campbell, 79 N. Y. 52. I use the words “ fraternal kindred ” in this connection advisedly, instead of brothers and sisters, because of the recent amendments. If the principle of succession by representation among all collaterals were engrafted on the Statute of Distributions by the acts of 1903 and 1905, it would (as noticed in Matter of Davenport, 172 N. Y. 454, 457) lead to very minute subdivisions among very remote kindred of intestate. If representation is not admitted among remote collaterals from intestate, but the succession in confined to a stirps or stock, the propositus of which is that most proximate to intestate, problems of distribution are much simplified. It is obvious to my mind that the amendments of 1903 and 1905 to the New York statute do not in any event extend the principle of representation to this case now before me, and that is the sole question here. What the intention and effect of those amendments of 1903 and 1905 in other respects were is not involved in this matter, and any expression of opinion on that point would be gratuitous and inexpedient, as it is not involved here and it has not been argued in this matter. My conclusion is that the aunt of intestate, under the statute in force, is, as next of kin to intestate, solely entitled to distribution — 374 — of this intestate’s property to the exclusion of the other kindred claiming the same adversely to her. I am very happy to observe that my conclusion is consistent with decisions rendered in the co-ordinate jurisdictions of this State by gentlemen of more experience and wisdom. Matter of Nichols, 60 Misc. Rep. 299; Matter of Barry, 62 id. 456; Matter of Schlosser, 63 id. 166; Estate of Lohman, Surr. Decs. 1908, p. 237. NOTE ON DESCENT AND DISTRIBUTION. I. By What Law Governed. 1. ' Questions relating to the distribution of personalty in cases of intestacy under foreign wills must be determined under the foreign law. Simonson v. Walker, 9 A. D. 503. 2. The matter of the succession to the estate of a decedent is controlled by the law in force at the time of the decedent’s death. Matter of New York S. T. Co., 46 Misc. 224. 3. Where a woman dies intestate, leaving a husband but no descendants, in a state where the distribution of her estate is governed by the common law, a chose in action which her husband failed to reduce into possession belongs to her next of kin. Matter of Nones, 27 Misc. 165. II. Statutory Provisions. 1. Section 2732, Code of Civil Procedure, subdivision 12, which provides for the distribution of personalty, must be construed in the light of all the other provisions of such section and of the amendments contained in Chapter 319 of the laws of 1898. Matter of Davenport, 172 N. Y. 454; affirming 67 A. D. 191. 2. The rule contained in subdivision 3 of section 2732, Code of Civil Procedure, regarding the surplus under certain conditions, held not to be affected by subdivision 12 of the same section as amended by laws of 1898, chapter 319; and held, that whatever changes were made by such amendment were among collaterals, and do not affect distribu — 375 — tion as between a collateral and a distributee in the direct line. Matter of Hardin, 97 App. Div. 493. 3. The only effect of the amendment of 1898 above referred to, was to remove the limitation prescribed by the former provision. Matter of Davenport, 36 Misc. 475. 4. The provision of the revised statutes (1 R. S. 753), that in case an inheritance came to an intestate by descent, devise or gift of one of his ancestors all those not of the blood of such ancestor shall be excluded from the inheritance refers to the immediate ancestor from whom the intestate derived the inheritance, not to a remote ancestor who was the source of title. Emanuel v. Ennis, 16 J. & S. 430. 5. The provision of the revised statutes (1 R. S. 753), that in case an inheritance came to an intestate by descent, devise or gift of one of his ancestors all those not of the blood of such ancestor shall be excluded from the inheritance, refers to the immediate ancestor from whom the intestate derived the inheritance, not to a remote ancestor, who was the source of title. Wheeler v. Clutterbuck, 52 N. Y. 67. Dargin v. Wells, Daily Reg. 9 August, 1883. III. Inheritance. 4. Under section 290, Real Property law, providing that where an inheritance comes to the intestate from an ancestor, all those who are not of the blood of such ancestor shall be excluded from such inheritance, the word “ ancestor ” is not to be limited to lineal ancestors or progenitors but includes other relatives from whom the inheritance came. Matter of Reeve, 38 Misc. 409. IV. Source of Title. 1. Where land is conveyed absolutely in fee to his wife, and both die, leaving a son as their sole heir at law, and he inherits the land, upon his death without lineal descendants the land descends to the mother’s relatives. Shires v. Shires, 76 A. D. 621. 2. Where a woman dies incompetent, leaving only cousins as her legal representatives, the court in determining the relative interests of the cousins on her father’s side and those on her mother’s side cannot consider the sources from which the property came to the decedent. Matter of New York S. T. Co., 46 Misc. 224. 3. Where a mother dies testate, leaving a husband and three sons, C. F. and E., the latter born after the making of her will, and the — 376 — shares of C. and F. never vested absolutely in them under the will, because they successively died intestate and without issue and unmarried, the shares which passed from C. upon his death to F. did not, on F’s death, pass under the provisions of the Real Property Law to E., but to his surviving father, because E. did not take directly from his mother. Richter v. Ludwig, 39 Misc. 416. 4. On the death of an intestate leaving a parcel of realty purchased by him at a referee’s sale it appeared that the intestate, in order to complete the purchase of such realty, had mortgaged other realty which he had derived from his mother, held, that under the statute of descents, the parcel in question could not be deemed, to the extent of the mortgage, to have come to the intestate upon the part of the mother. Adams v. Anderson, 23 Misc. 705. 5. One P. died intestate, seized and possessed of certain realty received from his mother by devise, which realty had formerly come to him from his father by descent and been conveyed by him to his mother for value. The intestate left no relatives nearer than first cousins,—held, that under the statute of descents the realty must be deemed to have come to the intestate from his mother and would descend to those of her blood. Adams v. Anderson, 23 Misc. 705. 6. Where a testator gave his wife a life estate with remainder to the children of John Grady, and all testator’s relatives by his father’s side who were in the United States at the date of his will and he expressly cut off from inheritance the wife of his brother John and any person related to her by blood or marriage, it was held that the clause of disinheritance did not defeat the right of his brother John’s wife and her descendants unless the persons to whom the testator attempted to devise the remainder were in existence. Where the widow testified that she knew John Grady, that he had been dead several years, and had never married, and left no children and that she had heard the testator’s father say that he was the only child of his parents who died in Ireland, and that he had no relatives living, and this was corroborated by her sons, it was held that the evidence was sufficient to establish the fact that the testator had no relatives living in the United States at the date of his will or death. Gallagher v. Crooks, 132 N. Y. 338; s. c. 44 St. Rep. 436; reversing s. c, 32 St. Rep. 1098. (Vol. 2, col. 2419, pl. 22; col. 2595, pl. 73; vol. 3, col. 4590, pl. 542.) 7. A direction by a testator that his estate be divided among his heirs-at-law in accordance with the laws of the State of New York, — 377 — applicable to persons who die intestate, was held to mean that his property should be divided according to law, as if he had not made a will; and having all personal property and leaving no ancestors, descendant, or widow, it was held that grandnieces and grandnephews were properly excluded from the distribution. Lawton v. Corlies, 127 N. P. 100; s. c. 37 St. Rep. 923; affirming s. c. 35 St. Rep. 600. 8. Where lands descend to two heirs ex parte paterna, and after making partition one of them dies his share will descend to his mother to the exclusion of brothers and sisters of the half-blood, not of the blood of the ancestor from whom the estate originally descended; by the partition, neither of the parties acquires a new estate in the premises. Conkling v. Brown, 57 Barb. 265; s. c. 8 Abb. Pr. (N. S.) 345. 9. Where real estate decends from a father to three children, and by the death of two of them their estates vest in the survivor; on her decease, the one-third which descended immediately from the father will go to his brothers and sisters; but the other two-thirds which the intestate derived by descent from her brothers will vest in a half-sister, born of her mother by a second marriage. Valentine v. Wetherill, 31 Barb. 655. 10. The estate of. an heir in an undivided interest in real estate is derived not from the decree in partition, but by descent, within the statute that descendants of relatives of the half-blood shall inherit in the same manner as the descendants of the whole blood, “ unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors; ” so the term “ ancestors ” includes collaterals. Adams v. Smith, 20 Abb. N. C. 60. 11. Where the decedent died intestate, leaving a paternal grandfather and a brother, who was a minor, but no widow, child or descendants, nor parent, it was held that the brother took to the exclusion of the grandfather. Matter of Marsh, 5 Misc. 428; s. c. 26 N. Y. Supp. 718. Where a man dies intestate and leaves no relatives nearer than the son of a deceased grand-uncle, grand-aunts, and descendants of deceased grand-aunts his real estate passes to the son of the deceased grand-uncle to the exclusion of grand-aunts and their descendants. Hunt v. Kingston, 3 Misc. 309; s. c. 51 St. Rep. 505. 12. Where a decedent leaves as her next of kin, her mother and a half sister, the half sister • takes equally with the mother, in the personal estate. Matter of Cruger, 68 St. Rep. 241; s. c. 34 N. Y. Supp, 191. — 378 — 13. Where a decedent dies seized of lands, leaving nephews and nieces as his heirs-at-law they take per stirpes, and not per capita. Roosevelt v. Thurman, 6 Johns, 322. 14. Prior to the revised statutes, there was no representation among collaterals beyond brothers' and sisters’ children. Hannan v. Osborn, 4 Paige 336. 15. An heir who is a resident citizen, is entitled to inherit, although he be compelled to trace his right through two non-resident alien ancestors. Callahan v. O’Brien, 72 Hun, 216; s. c. 55 St. Rep. 201. 16. Where a citizen dies intestate, seized of real estate which she acquired by purchase, her collateral relatives, although some of them be resident citizens, and others non-resident aliens, take such real property, in the same manner and proportion, as if they had all been resident citizens, but real estate acquired by the intestate by descent, descends to resident citizens to the exclusion of non-resident aliens. Callahan v. O’Brien, 72 Hun, 216; s. c. 55 St. Rep. 201. 17. Under the revised statutes, where the intestate leaves collateral relations in unequal degrees, they take by representation. Pond v. Bergh, 10 Paige 140. 18. Where the only heirs are a son of a deceased sister and the four sons and a grand-daughter of a deceased brother of the intestate, the former is not entitled to one-half as the representative of the deceased sister of the intestate but all are entitled to an equal share, that is, to one-sixth of the inheritance. Adams v. Smith, 20 Abb. N. C. 60. 19. A descent from brother to brother is immediate; and in such case, the heir is constituted a new stock of descent; the land descends from him, both, to paternal and maternal collateral relatives. Hyatt v. Pugsley, 23 Barb. 285. 20. The term “ ancestor,” when used with reference to the descent of real property, embraces collaterals as well- as lineals through whom the inheritance is derived. Wheeler v. Clutterbuck, 52 N. Y. 67; Dargin v. Wells, Daily Reg. 9 August, 1883. 21. First cousins take per capita and not per stirpes. Kelly v. Kelly, 5 Lans. 443; affirmed in 61 N. Y. 47. — 379 — WHO ENTITLED AND TO WHAT EXTENT. V. Heirs and next of Kin. 1. Where an intestate leaves as his heirs at law only a mother and brothers and sisters, the latter are at once seized of a vested estate in the realty subject to the life interest of the mother. Barber v. Brundage, 169 N. Y. 368. 2. An intestate died possessed of personal property only, leaving no husband, ancestor, descendant, brother or sister, but being survived by a nephew and niece, two uncles, two aunts and a large number of cousins, the descendants of deceased uncles and aunts, held, that the estate should be divided equally between the niece and nephew, two uncles and two aunts, as they were the next of kin in equal degree, being the third degree. Matter of Davenport, 172 N. Y. 454. 3. Where a testator left property to his brother who died prior to the death of the testator, so that for practical purposes he died intestate, his grandnephew, son of a deceased nephew, is entitled to a distributive share in the personal estate by representation, under subd. 12 of sect. 2732, Code of Civil Procedure, as amended by ch. 319, Laws of 1898, to the effect that representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate. Matter of DeVoe, 107 App. Div. 245. 4. Under Code of Civil Procedure 2732 as amended by laws of 1898, a grandnephew and grandniece take by representation the share to which their deceased parents would have been entitled to in the personalty of an estate. Matter of Hadley, 43 Misc. 579. 5. Under the above section as so amended, admitting representation among collaterals in the distribution of personal property in the same manner as in the distribution of real estate, where an intestate is survived by nephews and grand-nephews, all of whom spring from the intestate’s deceased brother, the grand-nephews are entitled to their parents’ share of the estate. Matter of Ebbetts, 43 Misc. 575. 6. A testator bequeathed a remainder in personalty to cousins for life with remainder to their issue, and provided that if any of the cousins died without issue the shares of such should pass to the issue of the others,—held, that the share of one dying without issue during the life of the testator passed to the issue of the surviving cousins per capita and not per stirpes. Jay v. Les, 41 Misc. 13. 7. Where a will is void an intention expressed therein by the testatrix to disinherit her son has no effect upon the distribution of the estate, and while the void provisions thereof may be resorted to for the — 380 — purpose of ascertaining the intention of the testator with reference to the right of -any person to take under other provisions of the will, they cannot be resorted to for the purpose of preventing the operation of the statute of descents and to substitute collateral for direct heir-ship. Henriques v. Sterling, 26 App. Div. 30. Henriques v. Yale University, 28 App. Div. 354. VI. Surviving Husband or Wife. 1. Where the death of an intestate is followed by that of his only child and his widow in the order named, the personal estate of the intestate descends to the legal representatives of the widow, and the father of the intestate is not entitled to letters of administration on his estate, which may be issued only to relatives who are presently interested in the estate. Matter of Seymour, 33 Misc. 271.