33 N.J. Eq. 520 | N.J. Super. Ct. App. Div. | 1881
The question presented is in reference to the distribution of the personal estate of an intestate who left neither widow nor descendants, nor father or mother, or brother or sister, but whose next of kin were thirty-six nephews and nieces, the children of his nine deceased brothers and sisters. The orphans court directed that the distribution be made to the nephews and nieces per capita. The appellant, who is the only child of a sister of the intestate, insists that the distribution should be per stirpes,
“ It has been well settled by the courts in England for over a century and a half, and always acted upon, so far as anything to the contrary appears, since the passage of the act, that the effect of this proviso is to limit or qualify the right of representation among collaterals, so that they can take only as next of kin per capita, except in the one case of the children of deceased brothers*523 and sisters of the intestate, among whom alone, of the collaterals, the right to take per stirpes by way of representation may exist.”
The case before the court was one of unequal kinship, and it was heldthatfirstcousinstake the personal estateof the intestate, to the exclusion of children and grandchildren of other f rst cousins deceased. The question now raised was not before the court. But the language of the court is not indicative of any dissent from, what was, up to that time, the established and accepted doctrine. The meaning obviously is, and that is all that the court intended to say, that the right of representation among collaterals is limited to brothers’ and sisters’ children, and does not apply at all to any case of collaterals where the next of kin are all more remote than brothers and sisters. The decree appealed from will be affirmed with costs, and a counsel fee of $50 to the respondents, to be paid out of the estate before distribution.