
    Matter of the Application of Harriet L. Milliman for a Decree Establishing the Right of Inheritance to Certain Lands Whereof Daniel H. Eastman Died Seized.
    (Surrogate’s Court, Herkimer County,
    February, 1916.)
    Decedent' Estate Law, § go — relatives of the half-blood — intestacy. A decedent who died intestate seized of a farm which descended to him from his father left no widow or descendant, no brother or sister nor descendant of a deceased brother or sister, no paternal uncle or aunt nor descendant of any such deceased uncle or aunt. Held, that under section 90 of the Decedent Estate Law the decedent’s maternal and half-blood cousins took the inheritance.
    Application for a decree establishing the right of inheritance to certain lands of testator.
    S. H. Newberry for petitioner, whole blood.
    Walter A. Swan for Louise Graham, half-blood.
   Bell, S.

Daniel H. Eastman died intestate November 13, 1914, seized and possessed of a farm situate in the town of Fairfield, this county, which descended to him from his father.

He left no widow, or descendant. No brother or sister, nor descendant of a deceased brother or sister. No paternal uncle or aunt nor descendant of such deceased uncle or aunt.

He left descendants of maternal uncles and aunts, both of the whole and half-blood, to-wit: first cousins, etc., of intestate and hereinafter referred to as maternal whole or half-blood cousins.

His maternal grandfather, Christian Barnhart, was married twice; first wife was Euphany Bodine, of which marriage were six children, half-blood brothers and sisters of decedent’s mother.

Second wife was Lydia Eastman, of which marriage were five children, one being decedent’s mother.

Decedent’s father and mother were first cousins.

These maternal whole blood first cousins were also paternal second cousins of intestate; their grandmother, Lydia Eastman Barnhart, was a sister of intestate’s paternal grandfather, Daniel Hitchcock Eastman.

It is claimed that, by section 90 Decedent Estate Law, these maternal half-blood cousins are excluded for the reason that they are not of the blood of the intestate’s ancestor, and that the whole blood cousins take the whole farm.

I am unable to agree with this construction.

If these maternal half-blood cousins are excluded and there was no maternal whole blood cousin, resort would have to be had to the course of the common law, and if no relative was found who would take thereunder then the property would escheat to the state.

Then, again, if the construction claimed is correct, the maternal whole blood cousins would inherit even though they are not of the blood of the paternal ancestor, but unless the maternal half-blood cousins are of the blood of the paternal ancestor they are ex-eluded. I do not think it makes any difference whether any of them are of the blood of the ancestor or not.

Subdivision 4 of section 88 of the Decedent Estate Law, by reason of there being no person on the father’s side to inherit, transfers this farm to certain relatives of the mother and it is to her and not this intestate, or his father, that we look to find who they are, to-wit: Brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died or, if all have died, to their descendants.”

The last part of subdivision 4 provides that, “ In all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intestate’s father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate,” so that this farm descends to these maternal whole and half-blood cousins “ in like manner as if they had been the brothers and sisters of the intestate.” Beebee v. Griffing, 14 N. Y. 235, 239, 240.

Brothers and sisters of the half-blood are included in a statutory provision for descent to brothers and sisters, unless a contrary intention appears. Anderson v. Bell, 140 Ind. 375; Lynch v. Lynch, 132 Cal. 214; Sheffield v. Lovering, 12 Mass. 490; 29 L. R. A. 544, note “ d ” and cases cited.

The 1st clause of section 90, viz.: Relatives of the half-blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree,” may be applicable, but I am convinced that the 2d clause, viz.: ‘1 unless the inheritance came, to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance ” is not applicable to the question presented.

These whole bloods inherit not by reason of being of the blood of the ancestor but by reason of being descendants of brothers and sisters of the mother of the intestate and the half-bloods inherit for the same reason.

Suppose this farm had descended to the intestate from his mother, then I cannot see how the 2d clause of section 90 could ever have been intended to have any bearing, for the reason that maternal uncles and aunts and their descendants are always “ of the blood ” of the mother, may be half-blood but that is “ of the blood.”

It seems incredible that the legislature intended that, after making provision to transfer real property in default of ancestral heirs to certain relatives of the other side — different family — nonancestral, it intended to provide that the maternal whole blood uncles and aunts and descendants of such as shall have died, whether of the blood of the paternal ancestor or not, shall inherit, but if there is a maternal half-blood uncle or aunt or descendant of such they must be of the blood of the paternal ancestor or they shall be excluded.” It is rare to find such a maternal cousin who has any of the blood of such a paternal ancestor.

In Farmers Loan & Trust Co. v. Polk, 166 App. Div. 43, Israel Corse made two trust deeds, one relating to personal and the other to real property for the benefit of James K. Polk who was a son of his sister. This nephew was given the income for life and the power of appointment to dispose of the corpus by his will and, in the event of his failure to exercise the power of appointment, the lawful kindred of said James K. Polk should become invested and entitled to said real property. Polk died without exercising the power of appointment. He left a half brother, Tasker Polk, by the marriage of his father to a subsequent wife not of the blood of Israel Corse, who left children and grandchildren who survived James K. Polk and who claimed said real property, and the court held, that the half brother, Tasker Polk, took said real property as the lawful kindred of said James K. Polk under the provision of said trust deed and that section 90 was not applicable.

In Stack v. Leberman, 169 App. Div. 92, Mary Gannon, the owner of real property, died leaving a will whereby, after directing the payment of debts and funeral expenses, she gave

First. To her step-daughter, Katie, $500:

Second. To her sister, Ellen, $200.

Third. To her daughter Theresa during her life the income of all the remainder and at her death the remainder to Theresa’s heirs.

Theresa died leaving no child or descendant, no parent, no brother or sister nor a descendant of a deceased brother or sister, of the whole blood, but left said-Katie, her half sister (different mothers), and the court held, that Katie, half sister, was the heir of Theresa and took the property under the 4th paragraph of said will to the exclusion of the brothers and sisters of Mary Cannon and that section 90 was not applicable.

In Pond v. Erwin, 113 Ind. 243, intestate, having inherited an interest in land from her mother, left no descendants nor brother or sister of the whole blood, but left maternal uncles and aunts and a half brother, child by the marriage of her father to a second wife, and the court, in construing a statute similar to section 90, held, that if the deceased had also left surviving her a whole blood or half-blood brother or sister on her mother’s side, that is, of the blood of the mother, he or she would have taken the estate which descended from the mother to the exclusion of one who was not of the same maternal blood, but that as the deceased left no brother or sister, either of the whole blood or half-blood, on the mother’s side, her entire estate descended to kindred of the half-blood, her half brother,the same as if he was of the whole blood.

Descent and distribution among kindred of the half-blood are discussed at length in the note to Anderson v. Bell, 29 L. R. A. 541, and also discussed in the note to Stockton v. Frazier, 26 L. R. A. (N. S. 603.

I am of the opinion, that this inheritance descends to both of these maternal whole and half-blood cousins and a decree may be prepared accordingly.

Decreed accordingly.  