
    Matter of the Estate of Charles P. Ebbets, Deceased.
    (Surrogate’s Court, Kings County,
    May, 1904.)
    Statute of Distributions — Construction of Code Civ. Pro., § 2732, subd. 12, as amd. in 1898 — Bight of grand-nephews to take by representation.
    Under the amendment made in 1898 to Code Civ. Pro., § 2732, subd. 12, changing its provision that no representation shall be admitted among collaterals after brothers’ and sisters’ children so as to make the subdivision read: “Representation shall be ad-
    mitted among collaterals in the same manner as allowed by law in reference to real estate”, where an intestate is survived by nephews and nieces and by grandnephews who are the children of a deceased nephew and niece, all of such persons having sprung from the intestate’s deceased brother, the grandnephews are entitled to receive their parents’ share of the personal estate.
    Morion by two grandnephews for a payment on account of their distributive share in decedent’s estate.
    William P. Burr, for petitioners, Harry Y. Ebbets and Walter Ebbets, grandnephews.
    Joseph Gf. Williamson, Jr., for petitioner, Fred E. Payne.
    Robinson & Robinson (Alfred Gr. Reeves, of counsel), for Ebenezer W. Ebbets and others.
    Carrington & Pierce, for administratrix.
   Church, S.

This is a motion by two grandnephews for a payment on account of their distributive share in decedent’s estate. It is opposed on the ground that they are not next of kin under the statute.

Although the deceased left a will, as the legacy had lapsed, the parties take as if he had died intestate. His only relatives were as follows: Three nephews and a niece, the children of a deceased brother, James Ebbets; a grandnephew, the son of a deceased niece, who was the daughter of the said James Ebbets, deceased; two grandnephews (the petitioners herein), sons of a deceased nephew, Harry Y. Ebbets, who was the son of the said James Ebbets.

Prior to 1898 subdivision 12 of section 2732 read: “ No representation shall be admitted among collaterals after brothers’ and sisters’ children.” This was always known as the Justinian rule, and under it, of course, the petitioners would be excluded. In 1898 this was amended, however, to read as follows: “Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate.”

What is the effect of this amendment? The objectors contend that it was not a repeal of the old provision, but that it was only intended to be effective when there was no person within the Justinian rule who would be entitled to take. The counsel, in a very learned and ingenious argument, has shown the wisdom of such an interpretation, and that it is unwise to disturb such an ancient rule; and in the Matter of Davenport there are certain expressions which are favorable to this contention.

I have held the matter in abeyance as an appeal from the surrogate of Saratoga county brought up certain features which might settle the whole question, but the Court of Appeals affirmed that case without opinion, without explaining or modifying its language in the Davenport case. The remarks in the opinion in that case, should only be applied to the circumstances there under consideration, viz., that the nephew and niece and uncle and aunt took to the exclusion of cousins.

The amendment of subdivision 5 of this section in 1903 makes the present meaning of the section perfectly plain; while this amendment can have no retroactive effect, yet the debate shows that it was declared to be its purpose to remove any doubt as to the amendmetit of 1898, and to cover the possible question which might arise from a misunderstanding of the Davenport case. . Surrogate Silkman made a similar decision in Matter of McGovern.

The grandnephews are, therefore, entitled to share in the estate, and the motion should be granted.

Motion granted.  