172 Misc. 1085 | N.Y. Sur. Ct. | 1939
Deceased was survived by a widow and nine grandchildren. All his children had predeceased him. One of these left two issue, another three and another four. The administrators in their account propose to distribute to the grandchildren per stirpes. This plan of course would operate to the advantage of the two grandchildren who are issue of one child of deceased and would operate to the disadvantage of the four grandchildren who are issue of a different child of deceased. The special guardian opposes the proposed plan and seeks direction that the distribution to the grandchildren be made on a per capita basis. The controversy requires consideration of subdivisions 1, 8 and 9 of section 83 of Decedent Estate Law and also consideration of section 47-c of Decedent Estate Law.
Section 47-c of Decedent Estate Law became effective some months before the death of deceased. It declares that when used in a statute the term “ distributees ” is to be construed to mean the distributees including “ a surviving spouse ” -defined in section 83 of Decedent Estate Law. Following that direction the administrators argue that the provisions of subdivisions 8 and 9 of this section must be read as referring to the widow of this deceased as one of his distributees. They refer also to the final clause of subdivision 1 of the section to support the stirpital distribution because (they say) the grandchildren legally represent the deceased children of the intestate. Since the widow of a deceased can never be “ in equal degree to the deceased ” when grandchildren are the other distributees the argument is that subdivision 8 of section 83 of Decedent Estate Law cannot apply and that either subdivision 1 or subdivision 9 does apply.
If the position taken by the administrators is to be accepted as sound the court must say that for a decade the legal profession, the fiduciaries of estates and the courts which supervise estate adminis
The status of a widow as distributee is sui generis. The whole body of the 1929 legislation must be so construed. She is to be regarded as a distributee of course. But in the ascertainment of degrees of kinship she is to be excluded. The text of the existing subdivisions 8 and 9 of section 83 operates only in respect of blood kindred and not in respect of a surviving spouse. In the ordinary case a surviving spouse is not of blood kindred with a deceased. In the circumstances where there is blood relationship as well as the relationship of spouse it is only in the latter character that the spouse may take.
Accordingly the court upholds the position of the special guardian and rules that all of the grandchildren of deceased are equal participants in the share passing to his descendants. That share is two-thirds of the distributable balance in the estate. Submit, on notice, decree directing distribution accordingly.