I cannot agree with Judge BARTLETT as to the effect of the amendment of 1898. Section 2732 of the Code provides how distribution shall be made in intestacy. This case falls within subdivision 5: "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." The uncles or aunts and the nephews or nieces of a deceased are equally near of kin to him (McClellan Surrogate's Practice, 642), all in the third degree. (Hurtin v. Proal, 3 Brad. Surrogates, 414; 2 Kent Com. 424.) Subdivision 11 of the section provides that when such descendants or next of kin are of unequal degree of kindred the surplus shall be divided between them according to their respective stocks, so that those who take by representation shall receive the share to which the parent whom they represent, if living, would have been entitled. If these provisions had stood alone, personal property would have been distributed by representation as *Page 460 is the case with real estate. But subdivision 12 provided that "no representation shall be admitted among collaterals, after brothers' and sisters' children." It was questioned whether this inhibition prevented representation of those who are not brothers' and sisters' children, such as the descendants of the uncles and aunts or of cousins. But this court held in Adee v.Campbell (79 N.Y. 52) that the limit of representation prescribed by the subdivision applied to all collaterals and that hence first cousins took to the exclusion of second cousins. By the amendment of 1898 the provisions of subdivision 12 were repealed, and in lieu thereof it was enacted: "Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate." This provision is general and applies to all collaterals. If, as was held in the case cited, subdivision 12, as it formerly stood, applied to representation among all collaterals, is it not clear that the repeal of that provision and the direct enactment that representation shall be admitted among collaterals to the same extent as in the descent of real estate authorize representation among all collaterals? It is suggested that "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." It seems to me that this is just what the legislature has done and that it could have used no more efficacious language for that purpose. The fact that in this case the property will be divided into small sums cannot affect the general rule. If the estate were large, even small fractions would represent substantial amounts. Moreover, representation among descendants of brothers and sisters is quite likely in many cases to cause minute subdivision of the estate. That in this case the descendants of the uncles and aunts are numerous, while there are no descendants of deceased nephews and nieces is merely the accident of the particular case. *Page 461
I do not see that the law which obtains in the descent of real estate, that the descendants of brothers and sisters inherit to the exclusion of uncles and aunts, has any application to the question under discussion. It may be argued that by the enactment of the new provision in subdivision 12, the legislature intended to provide that the distribution of personalty should be made in accordance with the descent of realty. But this argument proves too much, for if it is sound it would prevent the uncles and aunts from sharing in the estate. There can be no consistent or logical construction of the statute as it now stands which will admit uncles and aunts and exclude their descendants. There is this further suggestion to be made. If we affirm the doctrine of the Appellate Division, what is the law when an intestate leaves uncles and aunts and descendants of deceased uncles and aunts but no brothers or sisters or descendants of brothers and sisters? Will representation then be allowed in the shares of deceased uncles and aunts? If it is denied, it will be in express contradiction of the direction of the statute, that representation shall be allowed among collaterals in the same manner as admitted in reference to real estate. But on what principle can it be admitted consistently with the decision below? The contention that since the change in the statute, distribution is to be made in conformity with the descent of real estate, is not seriously pressed. If it were, a perfect answer to it is that subdivision 5 of section 2732 remains in full force, and directs that the distribution shall be, not in accordance with the descent of real estate, but "to the next of kin in equal degree to the deceased and their legal representatives."
I think the judgment must be reversed and the representatives of deceased uncles and aunts allowed to share. This seems to me the only logical construction of the statute.
PARKER, Ch. J., O'BRIEN, HAIGHT, VANN and WERNER, JJ., concur with BARTLETT, J.; CULLEN, J., reads dissenting opinion.
Order affirmed. *Page 462