1 Bradf. 495 | N.Y. Sur. Ct. | 1851
The intestate, Charles Henry Willis, died unmarried without leaving descendants, father, mother,
Some real estate, descended to the intestate on the side of his mother, subject to a mortgage, having been sold on a foreclosure, the surplus to which the decedent was entitled, was, in consequence of his minority, invested for his benefit. This comprising all the decedent’s estate, it is contended on the part of the maternal aunt, that it is to be treated as real estate; and as, if it had continued to be real estate, it would by the statute of descents, have passed to his relatives on the maternal side, so now, though converted into money, it is still to be regarded as real estate in which his maternal relatives are alone interested, to the exclusion of his paternal relatives. It is argued, therefore, that as all the estate belongs of right to the maternal relatives, the husband of the maternal aunt, in right of his wife, will be entitled to administration, though she be not the nearest of kin.
I think this position entirely erroneous. It is true that administration belongs of right to the relatives of the deceased, who are entitled to share in the distribution of his estate; but the estate intended by the statute is not real, but “personal estate.” (2 JR. 8., 3d ed., p. 138, § 28.) Indeed, the only proper subject of administration being personalty, the sole question ever to be considered is, who are the relatives entitled to share in the distribution of the personalty. If the particular fund arising from the sale of the decedent’s real estate, still continues to be, real and not personal estate, it does not form the subject of administration at all, and the matter is entirely foreign to this application. In a proceeding for administration, I cannot look into the peculiar state, condition or nature of particular funds, unless my jurisdiction depends solely on assets ; but on a contest for preference between relations, whose priority is not designated by statute, the single point to be
Both the grounds upon which the maternal aunt, through her husband, claims administration, have in my judgment been decided by the late Chancellor. In Bogert vs. Furman, 10 Paige, 496, he determined that by the foreclosure of a mortgage and the sale of the mortgaged premises, the interest of the owner of the equity of redemption is converted into personal estate, and if the owner subsequently die, his interest in the surplus moneys must be distributed as personal estate among his legatees or next of kin. And furthermore, he decided, that where the decedent dies intestate, without leaving a wife or any issue, or a father or mother, brothers or sisters, or maternal grandparents, but leaving a paternal grandmother surviving him, she is entitled to his whole personal estate, as his nearest of kin, to the exclusion of his uncles and aunts. It is urged, however, by the counsel for the applicant, that the rule thus laid down, is not consonant with our law, and that the cases referred to by the Chancellor (Blackborough vs. Davis, 1 P. Wms., 41; Woodroff vs. Wickworth, Prec. in Ch., 527; Mentney vs. Petty, Id., 593), do not sustain the position. On looking into those cases, this view will be found erroneous. Cm- Statute of Distributions (2 R. B., 3d. ed., pp. 159,160), in specifying the mode in which the surplus shall be distributed, provides, that “ in case there be no widow, no children, and no representatives of a child, then the whole surplus shall be distributed to the next of km, in equal degree to the deceased, and their legal representatives.” Who are the next of kin in egual degree to the deceased, in such a case as the present, is not determined by the statute, and must, therefore, be decided by the rule of the ecclesiastical law, which has always controlled in such matters, as a part of the Common Law. In the absence of a statutory definition, a term of known legal meaning must be construed with reference to its ordinary and established use and interpretation.