If the intestate's father is dead, but the intestate's mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the 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 no brother or sister but leaves his mother and one child of a deceased sister, Mary, and two children of a deceased brother, George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.
Legal Commentary & Landmark Judgments: Section 45
Section 45 governs distribution where the father is dead, no brother or sister survives, but the mother and children of deceased brothers or sisters survive, giving the mother an equal share with each deceased sibling's branch.
Section 45 provides clear statutory succession rules, ensuring equitable distribution among the surviving mother and the children of deceased siblings in intestate estates.
Under Section 45, the property is divided into equal shares for the mother and for each deceased brother or sister whose children survive. The children of each deceased brother or sister take their parent's share equally among themselves. For example, if there were two deceased siblings—Brother A leaving one child, and Brother B leaving three children—the estate is divided into three equal parts: mother takes 1/3, Brother A's child takes 1/3, and Brother B's three children divide 1/3 equally (1/9 each).
Section 45 ensures that the death of all siblings does not disinherit nephews and nieces in favor of the mother. Practitioners must calculate the shares based on the number of deceased siblings who left surviving children, not on the total count of surviving nephews and nieces.