Probate Court, Appeal. Descent and Distribution. Widow. Executor and Administrator, Sale of real estate.
Where, upon an appeal from a decree in a suit in equity in a Probate Court for instructions, there is no report of evidence taken under G.L.c. 215, § 18, nor a report of facts found by the trial judge made upon a request under § 11 of that chapter, or anything to show specifically what facts the judge found, the sole question presented to this court is, whether the decree was within the scope of the petition. It is improper to include in the record upon such an appeal a copy of an account filed with the register of probate by the petitioner if it does not appear that it was in evidence before the trial judge, although such an account was referred to, but not annexed to, the petition. Upon the death intestate in 1917 of a man leaving surviving him a widow and brothers and sisters but no issue, and real estate and personal property of less value than $5,000, the entire property of the deceased became the widow's under R.L.c. 140, § 3, cl. 3; St. 1905, c. 256, without her first applying to the Probate Court for a decree permitting a sale or mortgage of the real estate or for a decree setting off the real estate to her; and she is entitled to the entire income from the real estate after the death of her husband.
CARROLL, J.
This petition is before this court upon an appeal from a decree entered by order of a judge of the Probate Court without a report of evidence taken under G.L.c. 215, § 18, or a report of facts found by the judge made upon a request under G.L.c. 215, § 11, or anything to show what facts the probate judge found. The sole question presented to this court, therefore, is whether the decree was within the scope of the petition. G.L.c. 215, § 21, Brogna v. Commissioner of Banks, 248 Mass. 241.
The copy of an account was improperly annexed to the record.
It is obvious that facts might have been presented to the judge which would have resulted in his finding that, notwithstanding the appraisal made of the property of the intestate upon the inventory filed and described in the petition, the real value of the entire estate, real and personal, was $5,000 or less. Such being found to be the fact, by R.L.c. 140, § 3, cl. 3, under which statute the rights of the parties are to be determined, as the deceased died intestate and without issue, the surviving widow took a vested interest in the real estate as statutory heir. That right is not abridged by the provisions in the statute for the setting out of the real estate. R.L.c. 140, § 3, cl. 3. St. 1905, c. 256.
It was not essential for the widow to apply to the Probate Court for a decree permitting a sale or mortgage of the real estate or for a decree setting off the real estate to her. "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." Nesbit v. Cande, 206 Mass. 437, 439, 440. As the estate was less than $5,000 in amount, the entire property became hers on the death of her husband, and the income therefrom belonged to her. The case is governed by Nesbit v. Cande, supra, Walden v. Walden, 213 Mass. 418, and Naylor v. Nourse, 231 Mass. 341.
We do not consider Holmes v. Holmes, 194 Mass. 552, applicable on the facts here shown.
The decree of the Probate Court directing the administrator to pay the widow $1,139.54 is affirmed.
Ordered accordingly.