
    Matter of the Judicial Settlement of the Account of The New York, Security & Trust Company of the City of New York, as Administrator, Etc., of Emily T. Parker, Deceased.
    
      (Surrogate’s Court, Westchester County,
    
    
      January, 1905.)
    Statute of Distributions—Second Cousins Entitled to Shake by Representation—Code Civ. Peo., § 2732 (5).
    The law in force at the date of a decedent’s death controls the disr position of her personal estate.
    Where a testatrix, whose estate consisted solely of securities representing the proceeds of an equitable interest in land and United States government bonds, inherited from her father and mother, left her surviving no husband, no ancestor, brother or sister; no descendants of brothers or sisters and no uncles or aunts but only nine first cousins, six on the father’s side and three on the mother’s side, and also representatives of two first cousins on her father’s side and one first cousin on the mother’s side, the second cousins are entitled to share in the estate by representation.
    The statute (Code Civ. Pro., § 2732, subd. 5), directing that distribution shall be “ to the nextT of kin in equal degree to the deceased and their legal representatives,” the court, upon the question as to the relative interests of the cousins on the father’s side and the cousins on the mother’s side, may not consider the sources from which the personal property came to decedent.
    See 48 Misc. 484.
    Proceedings upon the judicial settlement of the account of an administrator.
    Cary & Whitridge, for administrator; Simpson, Thacher, Barnum & Bartlett, for Mary J. P. Stewart; John Bindley, for Charles A. Lindley and Willard P. Lindley; Thomas Holden, Jr., for Ellen G. Butler; Bassett & Thompson, for Marie A. Carver and Lizzie W. Stone; Bird & Tarbox, for Willard Parker.
   Silkman, S.

Emily T. Parker, whose estate is about to be distributed, died April 26, 1903. She was adjudicated insane on August 7, 1897, and the Continental Trust Company of the city of New York was appointed the committee of her property. The New York Security & Trust Company is the successor corporation to the Continental Trust Company, and under the latter title became the administrator of the estate of decedent.

The property comprising decedent’s personal estate was received by her under the following circumstances: Decedent’s father, Grenville Parker, formerly a resident of West Virginia, died prior to January 1, 1882-, intestate, possessed of personal property consisting of $18,000 of United States bonds and also of 'an equitable interest in certain real property in West Virginia. Grenville Parker left him surviving a widow and an only daughter, the decedent, Eimily T. Parker, as his only heirs-at-law and next of kin. Under the laws of West Virginia one-third of the property of said Grenville Parker descended on his death to and was inherited hy his widow, and two-thirds went to his daughter. Grenville Parker’s widow died shortly after he did and the one-third of his property which she had inherited from him descended to and was inherited by their daughter, Emily. In 1883, long before she was: adjudged insane, Emily sold her equitable interest in the West Virginia lands, inherited from her father and mother, for $18,000. She invested the proceeds in securities, which afterward, upon her being adjudged insane, came into the possession of and were sold by her committee, the proceeds being reinvested, and the securities representing such reinvestments disposed of by her administrator here accounting. The one-third of the $18,000 of United States government bonds which went to her mother came to Emily upon her mother’s death, subsequently passing into possession of her committee, who sold the same and reinvested the proceeds in other securities. All the securities representing the proceeds of the West Virginia lands and the United States government bonds have now been sold and converted into cash ready for distribution. It is agreed that the decedent was, and at all times continued to be, insane from the time she was so adjudicated to the time of her death.

She left her surviving no husband, no ancestor, brother or sister; no descendants of brothers or sisters, and no uncles or aunts, but only descendants of uncles and aunts, namely, nine first cousins; six on the side of the father and three on the side of the mother; and also representatives of two first cousins on the side of the father and one first cousin on the side of the mother.

The questions I am asked to determine are, first, as to the night of second cousins to a distributive share of the estate by representation, and second, as to the relative interests of the cousins on the father’s side and the cousins on the mother’s side, as affected by the source from which the property came.

Section 2732 of the Code of Civil Procedure, as amended by chapter 319 of the Laws -of 1898, was the law in force at the d-ate of decedent’s death and controls the distribution of her estate in this proceeding. As this statute is to be construed, in the light of authority, second cousins have the right to a distributive share by representation. Matter of Davenport, 67 App. Div. 191; affd., 172 N. Y. 454.

In the Davenport case, eighty-one cousins, descendants of deceased uncles 'and aunts, .were not allowed to take by representation, for the reason as pointed out in the opinion of the’Courc of Appeals, that it was not the intention of the Legislature by the amendment of 1898 to let down the bars and to establish such a wide distribution as was 'adjudicated by the decree of the. surrogate, allowing all descendants of deceased uncles and aunts to participate. The court concluded that the surviving nephew and niece and the two uncles and two aunts, being of the same degree of kinship, to wit, the third, it was unnecessary, under the circumstances, to invoke the rule of representation. But we find in the opinion of the Court of Appeals this .statement at p. 459: “If, however, the testatrix left no- nephew, niece, uncle or aunt her surviving, but there were descendants of nephews and nieces, and uncles and 'aunts, then the rule of representation would apply, in the same manner as allowed by law in reference to real estate.” The case now under consideration, comes within the language used.

The class or stock among which division must primarily be made is composed of decedent’s cousins only. Had the decedent’s estate contained real property to be divided, the second cousins would have been entitled to receive per stirpes the shares the deceased first cousins would have taken if living. Such first cousins if living would each have inherited a share of such real property in his own right, there being no brothers or sisters and no descendants of brothers or sisters living; and as to each deceased cousin there would have been the right by the second cousins to receive the parents’ share of such real property by representation.

It is a fair construction of the Statute of Distributions, as amended by the Legislature in 1898, and it is in consonance with the opinion of the Court of Appeals in the Davenport case, to say that since such second cousins (had there been real property) would have taken a share thereof by representation, they are entitled under the circumstances existing in this case to take a share of the personal property by representation. And thus I dispose of the first question.

Upon the second question, counsel have argued with much ingenuity that the sources from which the personal'property came to decedent should determine the devolution of the descent and distribution from her, and that such distribution should be made in conformity with those provisions of the statute in reference to the descent of real estate which recognized the source from which the property came. In disposing of this question it would seem that this court is bound by the decision of the Appellate Division in Matter of Davenport, supra. At page 195 is to be found the solution. The court there say: “ If the intent of the Legislature had been to distribute personal estate •among collaterals in the same manner to the same persons and ■in the same proportions as real estate descends, no reason can be suggested why apt language should not have announced the radical departure from the long-existing policy of the State. The language of the enactment relates to' representation alone and to representation alone must its construction and effect be strictly limited.”

Furthermore, subdivision 5' of section 2732 of the Code of Civil Procedure directs that distribution shall be “ to the next of kin in equal degree to the deceased and their legal representatives,” and not, as counsel contend, in accordance with the descent of real estate. It is the policy of the law to avoid such a construction of a.statute as will lead to and promote litigation. Were it to be held that the source from which personal property came controlled in any way its distribution, untold litigation and uncertainty would result by reason of the difficulty in tracing and identifying personal property.

My conclusion is that each first cousin should receive one-twelfth of this estate, and the remaining three-twelfths should be distributed among the representatives of the deceased first cousins per stirpes. Let findings and decree be submitted in accordance with the views expressed.

Decreed accordingly.  