If the intestate's father is dead but the intestate's mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate's lifetime are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
Illustration: A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them.
Legal Commentary & Landmark Judgments: Section 44
Section 44 codifies representation among siblings, providing that where the father is dead, the children of any deceased brother or sister represent their parent and take their parent's share equally.
The estate is divided into equal shares for: (1) the mother; (2) each surviving brother and sister; and (3) each deceased brother or sister who left surviving children. The children of each deceased sibling take their parent's share equally among themselves. For example, if the intestate leaves a mother, one living brother, and two children of a deceased sister, the estate is divided into three equal shares: mother gets 1/3, brother gets 1/3, and the two nieces/nephews divide the deceased sister's 1/3 share (taking 1/6 each).
Section 44 requires careful structural reading: it applies only when at least ONE brother or sister is LIVING at the intestate's death. If all brothers and sisters are dead, leaving only the mother and nephews/nieces, Section 44 does not apply; instead, Section 45 governs the distribution.