
    Matter of the Estate of Thomas Joseph Donovan, Deceased.
    (Surrogate’s Court, New York County,
    April, 1920.)
    Negligence — who entitled to distributive share of proceeds of judgment for negligence resulting in death — meaning of words “next of kin’’—Code Civ. Pro. §§ 1870, 1903(1) — Decedent Estate Law, § 98.
    Under section 1870 of the Code of Civil Procedure and section 98 of the Decedent Estate Law, a grandchild is one of the “ next of kin ” of her grandfather within the meaning of section 1903(1) of said Code, and is entitled to her distributive share of the proceeds of a judgment recovered in an action for negligence resulting in the death of the grandfather.
    Proceeding upon the judicial settlement of the accounts of an administrator.
    Valentine & Chichester, for petitioner,
    Adolph Bangser, for guardian.
    Peter P. McElligott, special guardian.
   Foley, S.

The question involved in this accounting is as to the distribution of the proceeds of a judgment obtained for negligence resulting in death. The decedent left him surviving a widow, six children and one grandchild, a daughter of a deceased daughter. The administratrix contends that section 1903 of the Code of Civil Procedure, as construed by Matter of Meng, 227 N. Y. 264, excludes the grandchild from sharing in the distribution. Subdivision 1, section 1903, however, only applies where no children survive the deceased. Where children survive the first sentence of that section applies, and the damages recovered are “ for the benefit of decedent’s husband or wife and next of kin.” The grandchild, under section 1870 of the Code of Civil Procedure, and subdivision 1, section 98 of the Decedent Estate Law, is one of the next of kin and is entitled to her proper distributive share. Matter of Meng, supra, is not applicable here.

Decreed accordingly.  