In re the Judicial Settlement of the Accounts of Hoes , 104 N.Y.S. 529 ( 1907 )

Ingraham, J.:

.Henry Aiders died on the 1st of April, 1899, leaving no widow and no descendants. His' next of kin .were certain nephews and nieces and there were also the descendants of uncles and aunts. Letters were issued to the public administrator who filed his accounts, and by final decree settling the accounts, five-elevenths of the estate was paid to.the nephews and nieces and six-elevenths directed to be paid to the issue of the decedent’s uncles and aunts. On September 1, 1898, prior to the death of the decedent, an amendment to section 2732 of the Code of Civil Procedure (Laws of 1898, chap. 319) went into effect. Under the provisions of that amendment the descendants of an intestate’s uncles and aunts were not entitled to a distributive share of the estate, the whole estate belonging to the nephews and nieces. On the settlement of the public administrator’s accounts, the usual citation was issued and served by publication, these collateral relatives not residing in this State. Under this decree the public administrator has paid some of the collateral relations of the intestate, but certain other of these collateral relations have never appeared to claim the sums directed to be paid to them, and the public administrator still holds the sum of $880 as the distributive share under the decree of certain of these collateral relations who have not applied for the moneys directed to be paid to them.

The rights of these descendants of the uncles and aunts of an intestate to a distributive share of his estate under section 2732 of the Code of Civil Procedure was determined by the Court of Appeals in Matter of Davenport (172 N. Y. 454), where it was expressly held that, under the provisions, of this section, “brothers and sisters and their descendants inherit .in the.first instance, and if there be none, then the an ms and uncles of the intestate and their descendants take.” Under this decision, therefore, the.petitioners who are the descendants of the brothers and sisters were entitled t absolutely to all the personal estate of the intestate. .

This decree, having thus been entered based upon an erroneous construction of the effect of the amendment to section 2732 of the Code of Civil Procedure, I think that the surrogate had the power to amend his .decree so far as to affect the shares of those of the Collateral relations of the intestate who had not appeared and taken the benefit given to them by the decree. It is not a case .in which the parties have appeared and - the question as "to their light to a distributive share of the estate determined in their favor. • These collateral relatives had' never appeared- and never claimed any portion' of this property or interest -in it.'. There had been ño determination by the surrogate of any- question presented, but the' surrogate had éntered On motion of the public administrator a decree distributing the estate to parties who were not entitled to it and had nó interest therein. . Such a decree entered by default is, we think, subject to correction, and; the surrogate had ample authority to correct the decree which had been entered by mistake, and which erroneously disposed of property of the intestate, certainly ■ until those who were entitled to the property have appeared and claimed the benefit' of the decree. There is no application to modify this decree so- as to affect the right of those who have' appeared and taken the benefits Under it. I think, under the circumstances^ the surrogate should have corrected the palpable mistake that was made, and modified the decree, so that the moneys still in the hands of the public administrator which the decree, directed to be paid to those who were not entitled to it should be .paid to those who clearly are entitled to it. ,

"We thinkj. therefore, the order appealed from should be reversed, the motion granted, and the modification asked for allowed, without costs of this" appeal. _

Patterson," P. J., McLaughlin and ClaRke,. JJ., concurred; Lambert, J., dissented.'. ...