Davis v. Vanderveer's Administrator

The opinion of the court was delivered by Bedle, J. This appeal is from the decree of the Ordinary, dismissing an appeal from a decree of distribution of the Orphans Court [581] of the county of Somerset. The intestate, Dr. Henry Manderver, was never married. His nearest relatives at his death were five cousins, to whom his whole personal estate was ordered distributed. The appellants are his second and third cousins, and they claim a share in the distribution as representatives or descendants of other cousins deceased in the lifetime of the intestate. The question for decision is whether, under our statute of distributions, (Nix. Dig. 305, §§ 12, 13,) the five cousins take the whole personal estate, to the exclusion of the children and grandchildren of the other cousins deceased — or, in another shape, whether collateral relatives can take by representation, except in the case of the children of a deceased brother or sister of the intestate. Our act was passed in 1795, and is in all material respects, (so far as it affects the question before us,) a transcript of the act of 22 and 23 Car. II, cap. 10, the analogous proviso in which latter act is in these words : “ That there be no representation admitted among collaterals after brothers’ and sisters’ children.” It has been well settled by the courts in England, for over a century and a half, and always acted upon, so far as anything to the contrary appears, since the passage of the act, that the effect of this proviso is to limit or qualify the right of representation among collaterals, so that they can take only as next of kin, per capita, except in the one case of the children of deceased brothers and sisters of the intestate, among whom alone, of the collaterals, the right to take, per stirpes, by way of representation, may exist. Carter v. Crawley, Sir T. Raym. 496; Maw v. Harding, 2 Vern. 233; Pett v. Pett, 1 P. Wms. 25; S. C., 1 Salk. 250, and 1 Ld. Raym. 571; Blackbrough v. Davis, 1 P. Wms. 41; Bowers v. Littlewood, 1 P. Wms. 594; Caldicot v. Smith, 2 Show. 286; Woodroff v. Wickworth, Prec. in Chan. 527; Walsh v. Walsh, Prec. in Chan. 54; Durant v. Prestwood, 1 Atk. 454; Stanley v. Stanley, 1 Atk. 455 ; 2 Vesey, sen., 213; Toller on Ex’rs 383 ; 2 Wms. on Ex’rs 1298 ; 2 Black. Com. 515; Bac. Ab., Ex’rs and Adm’rs I.; 2 Kent’s Com. 425; 4 Burns’ Ecc. Law 358; L. R. 13 Eq. Cases 286, Ross’ Trust. [582] This construction of the English statute was well understood when our act was adopted, and since then it has been recognized in our treatises in common use, and been approved of by the learned of the bar. Griffith’s Treatise 292; N. J. Justice 99 ; 4 Griffith’s Reg. 1257. Besides, we have no doubt that the Orphans Courts of the state have followed that construction. The same, we think, is also justified by the natural reading of the statute. It was intended in section thirteen that, whenever the estate in whole, or in part, (whether a widow or not,) goes to col-laterals, the right to take by representation, among them, should be limited to the children of the intestate’s brothers and sisters. Under this view, the appeal of the Ordinary was properly dismissed, and his decree should be affirmed, with costs, to be paid by the appellants. The whole court concurred.