
    Matter of the Judicial Settlement of the Accounts of Bessie Gibson Marble, as Administratrix, etc., of Ira Gibson, Deceased.
    
      (Surrogate’s Court, Chenango County,
    
    
      December, 1914.)
    Compromise—Of Actions—Action by Administratrix to Recover fob. Death of Intestate—Code Civ. Pro., 1903.
    Where in 1914, and after the reversal of three successive verdicts in favor of plaintiff in an action commenced in 1908 by an administratis to recover for the death of her intestate by defendant’s wrongful act, the action was compromised and settled, the amount received in excess-of attorney’s fees and expenses must be distributed as provided by section 1903 of the Code of Civil Procedure as it stood- prior to the -amendment of 1911. So held on a contention of the ad-ministratix that under said amendment she took the whole amount to the exclusion of decedent’s next of kin, two brothers and two sisters.
    Proceeding upon the judicial settlement of account of an administratrix.
    Julian Scott, for accounting administratrix;
    Hubert L. Brown, for objector.
   Hill, S.

This final accounting involves the distribution of a recovery had for the death of the intestate by reason of negligence. The intestate died on or about June 30, 1907, and letters of administration were issued on July 1, 1907. On May 5, 1908, an action- was commenced in the Supreme Court by the administratrix against the Case-in Manufacturing Company to recover damages for injuries sustained by reason of negligence, which injuries caused decedent’s death. Such action was twice tried, each trial resulting in a verdict for plaintiff, but each of such verdicts was reversed. During, the month of January, 1914-, the action was settled and compromised, 'the estate receiving $1,250 in excess of attorneys’ fees and expenses. The decedent left him surviving a widow, his mother, two brothers, two sisters.

It is maintained by the widow, the administratrix, that the amendment of 1911 -to section 1903 of the Code applies, and she takes all to the exclusion of the next of kin.

Objections are made to that portion of the account only. The attorney for the accountant argues very forcefully that the words “ and when they are collected,” contained in said section, defers the determination of those sharing until the money is actually received. It would seem that- such words are useless, and that the section would convey the meaning given it in Matter of Brennan, 160 App. Div. 401, quite as well without them. However, this cause of action being property, and being such property as has been held to vest at the time of death, and. which could be sold, and which would survive the death of the next of kin entitled to share, and pass to his estate, I incline to the opinion that the division should be made as of the date of death of the intestate.

Thus, while not absolutely regarding Matter of Brennan (supra), as stare decisis, as it was decided in another department, but as such case was identical in all particulars with the case at bar, and for the reasons given above, I hold and decide that the $1,250 should be distributed as provided by section 1903 of the Code as it stood after the amendment of 1904, and prior to the amendment of 1911.

Ordered accordingly.  