In re the Estate of Donovan

14 Misc. 533

Opinion

Foley, S.

The question involved in this accounting is as to the distribution of the proceeds of a judgment obtained for negligence resulting in death. The decedent left him surviving a widow, six children and one grandchild, a daughter of a deceased daughter. The administratrix contends that section 1903 of the Code of Civil Procedure, as construed by Matter of Meng, 227 N. Y. 264, excludes the grandchild from sharing in the distribution. Subdivision 1, section 1903, however, only applies where no children survive the deceased. Where children survive the first sentence of that section applies, and the damages recovered are “ for the benefit of decedent’s husband or wife and next of kin.” The grandchild, under section 1870 of the Code of Civil Procedure, and subdivision 1, section 98 of the Decedent Estate Law, is one of the next of kin and is entitled to her proper distributive share. Matter of Meng, supra, is not applicable here.

Decreed accordingly.