In re the Estate of Gooseberry

52 How. Pr. 310

Opinion

Rogers, Surrogate.

— As to the preliminary objection that a citation should isssue to the cousins of deceased, the surrogate ruled, that Helen Simpson, as aunt of deceased, was entitled to the entire estate, and that the cousins had no interest under the statute of distributions, and consequently no necessity exists of bringing them into court,

Footnotes

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(a)

After the testimony was closed the surrogate rendered his decision, as follows:

There are four petitions presented in this case, one by J. H. Bouse, who claims to be a creditor; one by A. Myers and John P. Cutler, claiming to be creditors; one by Robert and Adaline McIntyre, who claim as cousins of the deceased; and one by Helen Simpson, who claims to be an aunt of deceased.

The petitions in relation to the case are to be considered together, and considered as part of the case; and they all agree that, on the 29th day of November, 1876, Peter Gooseberry died, intestate; (b) that he left goods, chattels and credits in the State of New York to the value of $4,000.

The only question in issue is, who is entitled to administer the estate ? The evidence shows that Peter Gooseberry, the deceased, did not leave any wife or children, or father or mother or sister or brother, and that the nearest of kin is Helen Simpson. I therefore adjudge that Helen Simpson is entitled to letters of administration, and that, under the statute, she can join any other person with her as administrator. I think that they should give bonds in the sum of $10,000. There is some difference of opinion as to whether the assets are $4,000 or $5,000; but I think it best to have the bond.in $10,000.

Let letters issue to Helen Simpson and Marshal Tebbett.

Inquiry was made as to the costs and expenses of establishing the relationship of Helen Simpson, many witnesses being subpoenaed from a great distance, and the surrogate replied: I do not propose to pass upon that now; the statute prescribes that the reasonable costs of administration be paid out of the estate ; but it is a question that must come up upon a final accounting.

) Kent says : “If the intestate leaves no wife or child, brother or sister, but his next of kin are an uncle by his mother’s side, and son of a deceased aunt, the uncle takes the whole ” (2 Kent Com. [12th ed.], 425, citing Bowers agt. Littlewood, 1 P. Wms., 593 ; Parker agt. Nims, 2 N. H., 460 ; Parke agt. Asken, 11 Gill. & J., 346 ; see, also, McClellan’s Executor, 117). No one is required to be cited unless entitled to an interest in the estate under the statute of distributions (1 Bradf., 125, 200; 31 Barb., 192). The statute of descents differs from the statute of distributions in reference to representation among collaterals, and does not prohibit it after nephews and nieces (2 R. S. [6th ed.], p. 1133, et seq. See Hyatt agt. Pugsley, 23 Barb., 285; Hannan agt. Osborne, 4 Paige Ch., 340).

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) Death and intestacy must be proved to the satisfaction of the surrogate, and the party applying must be examined on oath in regard thereto. If the petition be not verified, an oral examination of the applicant, under oath, must be made (Redfeld’s Law & Prac. of Surrs.’ Courts, p. 164 note), although it has been held that these requirements are directory merely (Farley agt. McConnel, 7 Lans., 428).