1 Mills Surr. 72 | N.Y. Sur. Ct. | 1899
This is a proceeding to probate a will. The testator left him surviving no widow, descendants, parents, brothers or sisters. He left nephews, nieces, the issue of deceased nephews and nieces, and the issue of deceased uncles and aunts. Ho uncles or aunts survive him. The question has arisen whether, in addition to citing the nephews, nieces and the issue of deceased nephews and nieces, it is necessary also to cite the issue of deceased uncles and aunts. Thé will relates to real and personal property, and the heirs and next of kin of the testator must be cited. The nephews, nieces and issue of deceased nephews and nieces constitute all the_ heirs, and it is contended that they also constitute all the next of kin. Section 2732 of the Code of Civil Procedure does not include the combination of relatives left by this decedent among those for whom specific provision is made. Subdivision 5 of that section is as follows: “ If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives.” This provision was derived from the statute of 22 and 23 Car. II, chapter 10, a provision of which is identical with it. The English courts and our own have held that, under this provision, in the absence of nearer next of kin, uncles, aunts, nephews and nieces share equally, because all are included in the third degree. Durant v. Prestwood, 1 Atk. 454; Hurtin v. Proal, 3 Bradf. 414. It is clear, therefore, that the deceased uncles and aunts "of "the decedent, whose issue survive him, would, if living, share with his nephews and nieces. Subdivision 12,- which formerly provided that “ no representation shall be admitted among col-
Decreed accordingly.