
    Matter of the Estate of Joel Southworth, Deceased.
    
      (Surrogate’s Court, Madison County,
    
    
      Filed March 23, 1888.)
    
    Intestate’s estate—Statute oe distribution—Hale blood take equally WITH WHOLE BLOOD.
    The decedent died intestate, leaving him surviving no relatives of a nearer degree of cognation than the children of brothers and sisters of the whole blood and children of a brother of the half blood. Held, that the estate must be distributed among the nephews and nieces of the half blood and those of the whole blood equually, share and share alike.
   Kennedy, S.

The decedent died intestate, leaving him surviving no widow, no child or other descendant, and no father, mother, brother or sister, but leaving the children of two brothers and two sisters of the whole blood and the children of one brother of the half blood.

On behalf of certain nephews and nieces of the whole blood, it is contended that the nephews and nieces of the half blood are not entitled to share in the distribution of decedent’s personal estate.

We' are clearly of the opinion that this position cannot be sustained.

Probably the view entertained by the relatives of the whole blood arises from and is based upon the language of section 11 of the statute of distributions: “No representation shall be admitted among collaterals after brothers’ and sisters’ children.”

But there is no question of representation in this case, for the next of kin are all related to the decedent in equal degree, and by the provisions of section 9 of the statute of distributions they take share and share alike, and not by representation, the parents’ share.

But if it is claimed that technically the children of deceased brothers and sisters take by representation in cases where there are no nearer relatives, then section 12 of the statute clearly places those of the half blood upon an equal footing with those of the whole blood, and indeed this section would seem to place this whole question beyond dispute:

“Relatives of the half blood shall take equally with those of the whole blood, and the representatives of such relatives shall take in the same manner as those of the whole blood.”

This position is also abundantly sustained by authority. Nowhere in any of the elementary works does it seem to be questioned, and the decisions of the courts, although not numerous, are all in accord and in the same direction: “ Brothers and sisters of the half blood are entitled to an equal share of the intestate’s estate with those of the whole blood.” Williams on Executors (6th Am. ed.), 1621. See, also; Schouler on Executors and Administrators, 501; Redf. on Wills (2d ed.), vol. 3, page 423; Hallett v. Hare, 5 Paige, 315; Matter of Suckley, 11 Hun, 344.

In Hallett v. Hare (supra), the decedent died intestate, having only collateral relatives, the nearest being an aunt of the half blood on the father’s side and an aunt of the whole blood on the mother’s side.

Chancellor Walworth in delivering the opinion of the court, says: “ No representation being allowed among col-laterals after brothers’ and sisters’ children, the two aunts, who were the nearest relatives and in the same degree of kindred to the intestate, were entitled to share equally in her personal property.”

The Chancellor further,says that the rule of law has not been changed by the Revised Statutes, but “it has been considered as settled ever since the decision of the house of lords in Watts v. Crooke (Show. Cases in Pari., 139), that in successions of personal estates, relatives of the half blood in equal degree of cognation to the intestate take equally with those of the whole blood, and that they also take by representation, when representation would "be allowed among relatives of the whole blood in the same degree.”

In the Matter of Suckley (supra), the decedent died intestate leaving him surviving a brother and sister and four grandchildren of a deceased half-brother.

The court, of course, held that the grandchildren were not entitled to share in the distribution, but in the course of the opinion they say:

“In this case the claimants, instead of being a brother’s children, are grandchildren of a half-brother. There is no difficulty, however, about this last point, for our statute provides that relatives of the half blood shall take equally with those of the whole blood in the same degree; but the objection raised to the distribution of any portion of this fund to these grandchilren is, that they are one degree beyond the statute.”

Prom the above authorities as well as from the plain and unambiguous language of the statute itself, the conclusion is irresistible that the decree in this matter must direct distribution of the estate among the nephews and nieces of the half blood and those of the whole blood equally, share and share alike. _  