In re Awarding Letters of Administration upon the Estate of Tator

10 Mills Surr. 403 | N.Y. Sur. Ct. | 1913

Coffin S.

The petitioner Jeremiah Tator, a cousin of decedent, asks to be appointed administrator, and claims that because his father and mother were brother and sister respectively to decedent’s father and mother he is a relative of the whole blood and, therefore, has priority over the other petitioner, another cousin, Everett Ostrander, who is said to be a relative of the half blood.

The definition of “ whole blood ” and “ half blood ” as given in the various dictionaries is somewhat vague, and almost invariably cites as examples, brothers and sisters having, or not having, as the case may be, the same father and mother. But the language of the Code (§ 2660), preferring relatives of the whole blood to relatives of the half blood, is broad enough to include cousins.

It is easy enough to define brothers and sisters of the whole and half blood. But is a cousin whose father and mother were brother and sister respectively to another cousin’s father and mother, a cousin of the whole blood? And are cousins not so doubly related cousins of the half blood? This double relationship is the rare exception, yet that fact is not sufficient, if such double relationship constitutes “ whole blood,” to warrant the court in disregarding the mandatory language of the statute.

If we go back to Blackstone’s Commentaries we shall find the solution of the problem, and then the definitions found in later works lose their vagueness. In volume 1, page 194, Blackstone’s Commentaries (12th London .Edition) we find this clear language: “ But herein there is no objection (as in the case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from the same couple' of ancestors (which constitutes a kinsman of the whole blood) but from a single ancestor only; as when two persons are derived from the same father, and not from the same mother, or vice versa”

Assume that A had two wives, No. 1 and No. 2, and two sons Al and A2 by the first wife, and two sons B1 and B2 by the second wife: the sons Al and A2 would be brothers of the whole blood to each other, but brothers of the half blood to the sons B1 and B2. If Al and A2 had each a son, AS and A4 respectively, and B1 and B2 had each a son B3 and B4 respectively, then A3 would be a cousin by the whole blood to A4; and likewise B3 a cousin of the whole blood to B4; but A3 and A4 would be cousins of the half blood to B3 and B4.

So the true test, in the case of cousins, for instance, is to go back to the same couple af ancestors (grandparents), and if all the cousins proceed from the same couple—the same grandfather and grandmother—they are cousins of the whole blood; if, on the contrary, they proceed from the same grandfather but from different grandmothers, they are cousins of the half blood.

If we apply this test we shall see that the two petitioners’ relationship to decedent proceeds from the same couple of ancestors, to-wit, grandparents, and they are both of the whole blood.

We must therefore hold that the petitioner Jeremiah Tator has no statutory priority over the other petitioner.

Letters may issue to the two petitions.

Decreed accordingly.