Nesbit v. Cande

92 N.E. 766, 206 Mass. 437, 1910 Mass. LEXIS 823

Opinion

Sheldon, J.

Upon the death of Mrs. Slater without issue and leaving an estate amounting to less than $5,000, her surviving husband took a vested right of inheritance as statutory heir in her real estate. R. L. c. 140, § 3. Eastham v. Barrett, 152 Mass. 56. Howe v. Berry, 168 Mass. 418. Holmes v. Holmes, 194 Mass. 552, 559. Peabody v. Cook, 201 Mass. 218. The rights of her other heirs under R. L. c. 133, are by § 1 of that chapter expressly made subject to the right of her husband. This right of a surviving husband or wife is not abridged by the other provisions contained in R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256. These provisions merely afford a convenient means of ascertaining and adjudicating the facts upon which that right depends and so determining its existence and extent. Accordingly, on the husband’s subsequent decease, his heirs, or if he left none, then the Commonwealth by escheat (R. L. c. 14.0, § 3, cl. 3) became entitled to the property and to the surplus of its proceeds after payment of his wife’s debts.

This petitioner is not interested in the question whether these proceeds should have been ordered to be paid to the respondent as administrator of his estate, or to his heirs, if any, or to the Commonwealth. Having no concern with that question, she is not aggrieved by the decree made.

Decree affirmed.