#### Matter of the Probate of the Last Will and Testament of John W. Healy, Deceased.

(Surrogate’s Court, New York County,

May, 1899.)

Distribution — Code Civil Procedure, § 2732, subd. 12, as amended in 1898 — Issue of deceased uncles and aunts take by .representation, and should be cited to the probate of a will of real and personal ■estate.

Upon the probate of a will of real and personal estate it appeared that the testator left no widow, parents, brothers or sisters, but left *353nephews, nieces, the issue of deceased nephews and nieces, and the • issue of deceased uncles and aunts. The nephews and nieces and the issue of deceased nephews an,d nieces were cited.

Held that, under subdivision 12 of section 2732 of the Code of Civil i Procedure, as amended by chapter 319 of the Laws of 1898, declaring that “ Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate the issue of ¡ deceased uncles and aunts took by representation the shares which their ancestors would have taken if living and were therefore entitled to be cited.

Proceedings upon probate of a will.

Eugene F. Daly, for proponent.

Wm. J. McCormick, for contestant.

Fitzgerald, S.

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. The 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 *354deceased 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 he admitted among collaterals after brothers’ and sisters’ children,” was amended by chapter 319, Laws of 1898, to read as follows: "“ Representation shall'be admitted among collaterals in the same manner as allowed by law in reference to real estate.” It is conceded that under this provision the issue of deceased nephews and nieces share with living nephews and nieces and take by representation the shares which their ancestors would have taken if living, but it is contended that in the present instance the issue of the decedent’s deceased uncles and aunts do not so take by representation. The principle of representation prescribed by the provisions of the Real Property Law relating to descents is in any given instance as follows: The primary division being made between the nearest surviving relative or relatives" and the descendants of those of the same degree, such descendants take by representation the share which their ancestor would have taken, if-living, in the same manner as if their ancestor had survived and died intestate. Pond v. Bergh, 10 Paige, 140-148. Thus a son of a deceased sister; four brothers and a granddaughter of a deceased brother each take -one-sixth. Adams v. Smith, 20 Abb. N. C. 60. The same rule ■was followed, cousins sharing with the issue of deceased cousins, who. -took by representation their ancestors’ shares, in Hyatt v. Pugsley, 23 Barb. 301. In Hurtin v. Proal, *supra,*the learned -surrogate says: “ representation never changes or advances the -degree; though where the degrees are unequal, it operates when ■declared by the statute, to give the. representatives of a deceased person the share he would have taken if living.” Kent says: “Inheritance *per stirpes*is admitted when representation becomes necessary to prevent the exclusion of persons in a remote degree.” Kent’s Oom., § 3.91. This principle of representation prescribed in the law. of descent is precisely the same as that contained in subdivision 11 of the section above mentioned relating to distribution. The effect of .the amendment of subdivision 12 was merely to remove the former limitation of .representation to brothers’ and sister/ children-■ The same limitation was appliedyto real estate in the act-of 1786, and was in. like manner removed by the Revised Statutes. Hannan v. Osborn, 4 Paige, 336, 340; Pond v. Bergh, 10 id. 140, 148. In the present instance the class <s@ stock among which division is made.is composed of the decedent’s *355nephews, nieces, uncles and annts and the issue of any deceased member of that class take their ancestor’s share by representation. A citation should issue to the representatives of the decedent’s uncles and aunts.

Decreed accordingly.