Opinion
No. 5359.
Submitted June 2, 1965.
Decided July 21, 1965.
1. An intestate's first cousin by adoption takes equally with other first cousins (RSA 461:6).
2. So also, first cousins, although illegitimate, take equally with other first cousins (RSA 561:4).
3. First cousins of the intestate who are of the half blood take equally with other first cousins.
4. Children of a deceased first cousin of the intestate may not by virtue of statute (RSA 561:3) inherit the first cousin's share by representation.
Certification of questions of law by the probate court of Merrimack county by George, J. pursuant to RSA 547:30.
The reserved case contains the following facts: "Albert J. Yeaton, Administrator of the estate of Edwin L. Bunker, late of Epsom, in said County, deceased intestate, filed in this Court a petition for instructions and advice as to the distribution of the balance of said estate remaining in his hands as shown by his final account. The administrator alleges that he is unable to determine just who are the legal heirs of said deceased.
"The intestate died May 9, 1964, his wife having predeceased him and leaving no issue, nor brothers or sisters. His father and mother both predeceased the intestate. The intestate had an uncle and aunt on his father's side and two uncles by the half blood on his mother's side, all of whom also predeceased the intestate. The following are those persons who claim, or may claim, to be heirs of the intestate to the best of your petitioner's knowledge:
"1. Walter Bunker, who was a legally adopted son of Cyrus Bunker, Cyrus having been an uncle to the intestate on his father's side;
"2. An illegitimate daughter of the sister of the intestate's father whose name and address has been disclosed to the Probate Court;
"3. Four living children of a legitimate son of this same sister of the intestate's father, the son having predeceased the intestate.
"4. James M. Steele, a son of a half brother of the intestate's mother.
"5. Three living children of another half brother of the intestate's mother.
"The above are the closest of kin to the intestate to the best of the knowledge of the Administrator, and are all first cousins, or children of a deceased first cousin, of the intestate."
Cofran, Quint Greenhalge (by brief) for Albert J. Yeaton, administrator.
The first question transferred is whether a first cousin, by adoption, takes equally with other first cousins. The answer to this question is yes. Anderson v. French, 77 N.H. 509; Annot. 43 A.L.R. 2d 1183, 1202. The controlling statute provides that an adopted child inherits through his adoptive parent. "461:6 EFFECT OF DECREE. The child so adopted shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of property and all other incidents pertaining to the relation of parent and child as he would if he were the natural child of such parents, except that he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents, and if he dies under age or intestate, leaving property received by gift or inheritance from his natural kindred, such property shall be distributed as if there had been no decree of adoption."
The second question transferred without ruling by the probate court is whether first cousins, although illegitimate, take equally with other first cousins. This question requires an affirmative answer. Hoyt's Probate Practice 243 (1901) as explained at page 18 of 1908 notes to Hoyt's Probate Practice. " 561:4 BASTARDS, INHERITANCES. The heirs of a bastard in the ascending and collateral lines shall be the mother and her heirs; and bastards and their issue shall be heirs of the mother and her kindred." The addition of the last three words of this statute, "and her kindred" by Laws 1905, ch. 4 corrected the injustice pointed out in Reynolds v. Hitchcock, 72 N.H. 340 decided in 1903 holding that a bastard and his issue could not inherit from his mother's collateral kindred. The decision in Young v. Bridges, 86 N.H. 135 is not controlling because there is no evidence in this case that the illegitimate daughter of the intestate's aunt was ever adopted. RSA 561:43 as amended in 1905 requires that the illegitimate daughter of the aunt of the intestate take equally with other first cousins. Hoyt, Law of Administration in New Hampshire 64 (1916).
The third question is whether first cousins who are of the half blood take equally with other first cousins. In other words do the four living children of the two half brothers to intestate's mother take equally with other first cousins. The answer to the third question is yes. Prescott v. Carr, 29 N.H. 453; Hoyt, Law of Administration in New Hampshire 63 (1916); Annot. 54 A.L.R. 2d 1009, 1017.
The fourth question involves the four living children of Elbridge J. Robbins. Do children of a deceased first cousin take the share which their parent would have taken, by representation? RSA 561:3 provides that "No representation shall be allowed among collaterals beyond the degree of brothers' and sisters' grandchildren." Under this statute and the cases construing it children of a deceased first cousin do not take his share by representation. Green v. Bancroft, 75 N.H. 204; Page v. Parker, 61 N.H. 65. The answer to the fourth question is no. See Coram v. Connell, 103 N.H. 26; Annot. 54 A.L.R. 2d 1009, 1027-1028.
The essence of the final inquiry is how the estate shall be distributed. The surviving first cousins being all related to the decedent in the same degree take equally and per capita. Hoyt's Probate Practice 242 (1901); Colony v. Colony, 97 N.H. 386, 395-396. The entire estate should be distributed in six equal shares to Walter Bunker, the adopted son of Cyrus; to the illegitimate daughter mentioned in the reserved case; and to James M. Steele, Richard A. Steele, Frederick C. Steele and Grace Steele Chase, the four children of the decedent's mother's two half-brothers.
Remanded.
All concurred.