
    (54 Misc. 495)
    In re PROTE.
    (Surrogate’s Court, Westchester County.)
    1. Descent and Distribution—Next oe Kin.
    Where intestate died, leaving three nephews and the child of a deceased nephew as her sole next of kin, the whole surplus of her estate was distributable to such next of kin in equal degree to the deceased and their representatives, as provided by Code Civ. Proc. § 2732, par. 5.
    2. Same—Division .
    Code Civ. Proc. § 2732, par. 11, provides that, when descendants or next of kin are of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto according to their respective stocks, so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent whom they represent, if living, would have been entitled. Held that,- where intestate left as her sole next of kin three nephews and the child of a deceased nephew, each nephew was entitled to one-quarter of the estate, and the representative of the deceased nephew the remaining quarter.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Descent and Distribution, §§ 121, 122.]
    
      Judicial accounting of John R. Prote, as administrator of Mary Louisa Nichols, deceased. Decree of distribution entered.
    William H. Sweney, for administrator.
    Francis X. Donoghue and Thomas F. Curran, special guardians.
   WILLARD, S.

Mary Louisa Nichols died intestate on the 27th day of March, 1905, leaving as her only heirs at law and next of kin John R. Prote, a son of Martha Prote, a deceased sister of deceased, and John H. Kothe and Herman Kothe, sons of Eliza Kothe, a deceased sister of deceased, and Charles Kothe, a son of Charles Kothe, deceased, who was a son of said Eliza Kothe, deceased.

It is claimed on behalf of the administrator that distribution of the estate should be made, one-half to said administrator, as the sole heir and next of kin of his mother, Martha Prote, and the other one-half in equal parts to John H. Kothe, Herman Kothe, and Charles Kothe, who are all of the heirs at law and next of kin of Eliza Kothe, the other sister of said intestate. Paragraph 5 of section 2732 of the Code of Civil Procedure provides as follows:

“If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives; and if all the brothers and sisters of the intestate be living, the whole surplus shall be distributed to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants in whatever degree of those dead; so that to each living brother or sister shall be distributed such share as would have been distributed to him or her if ail the brothers and sisters of the intestate who shall have died leaving issue had been living, and so that there shall be distributed to such descendants in whatever degree, collectively, the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees.”

Paragraph 10 of the same section provides that:

“Where the descendants, or next of kin of the deceased entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal.”

By paragraph 5, above referred to, it is plain that the whole surplus in this estate must be distributed to the next of kin in equal degree to the deceased and their legal representatives. Both of the sisters of the intestate being dead, the next of kin to the intestate are the nephews of said intestate, and all nephews would, under paragraph 10, take an equal share; but in this case there are three nephews and also a child of a deceased nephew. This case seems to be covered by paragraph 11 which provides as follows:

“When such descendants or next of kin are of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent whom they represent, if living, would have been entitled.”

The underlying principle, which it seems to me is the proper basis for the decision of all of such cases, is that you must first find the nearest class of relationship to the intestate, and that each one in the nearest class take an equal share of said estate, and the representatives of any in that class who have died take the share which the parent would have been entitled. In this case, therefore, as above set forth, the next of kin being three nephews and the child of a deceased nephew, each' nephew is entitled to one-quarter of the estate, and the representative of the deceased nephew is entitled to the other fourth. It seems to me that there can be no doubt that this is the underlying principle of this law, and it certainly grants exact justice to all concerned, if each one of the nearest class to the intestate receive an equal share and the representatives of any who have died receive the same share as their parent would have received, if living.

Decree in this case should therefore be prepared, giving to John R. Prote, John H. Kothe, Herman Kothe, and Charles Kothe each one-quarter of the estate.  