89 N.Y.S. 978 | N.Y. App. Div. | 1904
The decedent died intestate April 16,1901, leaving him surviving a widow and no descendant, parent, brother or sister, nephew or niece. (See Code Civ. Proc. § 2732, subd. 3.)
The petitioner, his aunt, filed a petition in the Surrogate’s Court and a citation was issued pursuant thereto requiring the administratrix, to whom letters of administration had been issued in May, 1901, to show cause why a judicial settlement of her account should not be rendered. Upon the return of the citation and at the instance of the administratrix the proceeding was dismissed on the ground that said petitioner was not entitled to share in the personal estate of said intestate.
If subdivision 3 of section 2732 of the Code of Civil Procedure is operative, the entire personal estate to be distributed belongs to-the widow. That has been the statute of this State uninterruptedly since the Revised Statutes became operative, and it was embodied in the section mentioned where the rules governing in the distribution of the estate of an intestate are grouped.
Prior to 1898, subdivision 12 of that section read: “No representation shall be admitted among collaterals after brothers’ and sisters’ children.” By the Laws of 1898 (Chap. 319) the following
The purpose of this substitution apparently was to put on a like basis the representation among collateral next of kin and heirs at law, as there had been lack of uniformity in the statute of distribution and that applying in the descent of real estate.
Subdivision 12 is to be construed in connection with subdivision 5 as said subdivision existed prior to the amendment made by chapter 367 of the Laws of 1903 (See Laws of 1893, chap. 686), which amendment is not applicable, as the decedent died in 1901, and also in connection with subdivision 10 of the same section, and the rule of representation under subdivision 12 is not effective where the degree of relationship of the next of kin is of equal degree. (Matter of Dovenport 172 N. Y. 454, 458.)
That subdivision" certainly did not contemplate any change of the provisions which define the widow’s share in the personal estate. Subdivision 3 is explicit in prescribing the extent of her interest where there is “ no descendant, parents, brother or sister, nephew or niece.” Subdivision 12 does not purport to lessen or alter her share. That subdivision and those immediately preceding pertain to the distribution among next of kin who are collaterals and who are related by consanguinity to the person from whom they take. The widow takes by virtue of her widowhood, and the extent of her interest in whatever aspect the estate of her husband may be presented as to his next of kin is prescribed by the various subdivisions of section 2732 of the Code of Civil Procedure. The Legislature did not intend to modify these provisions so long in vogue by changing the subdivisions relating exclusively to representation among collaterals. In order to obtain that result we must read into the definite language of subdivision 3 a later subdivision, and one which in no way by its express language lessens the share of the widow. If so great a change had been designed, subdivision 3 would have been amended and remodeled.
Again, the uniformity which was designed to be effected by the amendment to subdivision 12 only pertains to collaterals and is only applied where the right to take existed. It did not create a next of kin to the exclusion or diminution of what the widow was
A statutory provision long operative and the explicit language of which remains unchanged will not be modified by an|amendment of another law relating to a different subject, unless the legislative intent to alter is unmistakable, and as to the interest of the widow pursuant to these subdivisions such intent can hardly be conceived.
All concurred.
Decree of Surrogate’s Court affirmed, with costs.