
    Matter of the Judicial Settlement of the Account of William B. Davenport, Public Administrator of the County of Kings, as Administrator of the Goods, Chattels and Credits which were of Walter W. Smyser, Deceased.
    (Surrogate’s Court, Kings County,
    December, 1901.)
    Statute of Distributions — Construction of Code C. P., § 2732, subd. 12, as amd. in 1898.
    The only purpose of the amendment, made in 1898 to Code O. P., § 2732, subd. 12, admitting, in personalty, representation among collaterals as in real estate, was to remove the former restriction forbidding representation after brothers and sisters’ children; and it is still the law that, where the intestate leaves no widow, child, descendant, father, mother, brother or sister, the next of kin of equal degree and the legal representatives of the deceased next of kin of that degree, without the former limitation, take the entire personal estate.
    Proceedings upon the judicial settlement of the account of William B. Davenport, public administrator of the county of Kings, as administrator, etc., of Walter W. Smyser, deceased.
    Frederick H. Chase, for public administrator.
    Robinson, Biddle & Ward, for Susan Smyser.
   Abbott, S.

I am asked to construe the statute of distributions for the purpose of determining to whom the personal estate of Walter W. Smyser, deceased, should be paid.

The intestate left him surviving and claiming a share of his personal estate his paternal grandmother, Susan Smyser; an aunt, his father’s sister, Lydia E. Herr; an aunt, his father’s sister, Savilla Baughman; a cousin, Harry F. Smyser, son of his father’s deceased sister; and Edward D. Coe, a half brother of his mother.

Hnder the provisions of the Statute of Distributions (Code Civ. Pro., § 2732, subds. 5, 10, 11, 12) it is clear that prior to the amendment of subdivision 12 in 1898 the paternal grandmother, Susan Smyser, would have been entitled to the entire personal estate. Bogert v. Furman, 10 Paige, 496; Sweezey.v. Willis, 1 Bradf. 495; Hill v. Nye, 17 Hun, 457.

Prior to the amendment of 1898 subdivision 12 provided:

“No representation shall be admitted among collaterals after brothers’and sisters’children.” It now provides: “Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate.”

The only purpose of the amendment was to remove the limitation prescribed by the former provision; in all other respects the law remains the same. It is still the law that next-of-kin of equal degree and their legal representatives; that is, the personal representatives of any such deceased next-of-kin without the limitation formerly prescribed by subdivision 12, are entitled to the entire personal estate where no widow, child or descendant, father, mother, brother or sister survived the intestate.

For the purpose of determining what legal representatives are entitled to a share in the estate, we must first ascertain who are next-of-kin; that is, nearest of kin to the intestate.. Susan Smyser, the intestate’s grandmother, is only two degrees removed from the intestate, and is therefore the nearest of kin, and determines the class, grandparents. Therefore, grandparents and the personal representatives of deceased grandparents are entitled to share in the personal estate.

The class 'originally consisted of four grandparents — two paternal and two maternal. It appears by the account and stipulation filed that no maternal grandparents survived the intestate; one personal representative of both maternal grandparents survived the intestate, namely, Edward D. Ooe.

He succeeds to two full shares of the personal estate and is entitled to one-half.

On the father’s side there survived the intestate, a grandmother and the personal representatives of a deceased grandfather. Accordingly the share of the estate represented by the paternal grandparents must be divided into two parts, one representing the share of Susan Smyser, the paternal grandmother, and the other representing the personal representatives of the deceased paternal grandfather. The descendants of the deceased grandfather are two daughters, Lydia E. Herr and Savilla Baughman, and the son of a deceased daughter of intestate’s grandfather, Harry F. Smyser.

My conclusion is that Edward D. Coe is entitled to one-half, Susan Smyser to one-quarter and Lydia E. Herr, Savilla Baughman and Harry F. Smyser are each entitled to one-twelfth of the personal estate. See Matter of Healy, 27 Misc. Rep. 352.

Let decree be presented accordingly on two days’ notice.

Decreed accordingly.  