Husband and Wife. Descent and Distribution. Executor and Administrator. Commonwealth. Escheat. Probate Court, Appeal.
By R.L.c. 140, § 3, the surviving husband of a wife, who died without issue leaving an estate amounting to less than $5,000, has a vested right of inheritance in her real estate as her statutory heir, and, if such real estate has been sold for the payment of debts and after such payment there remains in the hands of the administrator of the wife's estate a balance of less than $5,000, the husband is entitled to the whole of it.
Upon the petition of the administrator of the estate of a married woman who died without issue, alleged to be also one of the heirs at law of his intestate, for an order to distribute the balance of her estate in the hands of the petitioner, which was derived from the sale of her real estate for the payment of debts and amounted after such payment to less than $5,000, all of which by R.L.c. 140, § 3, goes to the husband of the intestate, if it appears that such husband survived his wife and then died intestate, leaving no heirs or next of kin in this Commonwealth or elsewhere so far as known, the petitioner is not aggrieved by a decree ordering him to pay the whole of the balance to the administrator of the estate of the husband, because the petitioner has no interest in the question whether the balance of the proceeds from the sale of the real estate of the wife should have been ordered to be paid to the administrator of the husband's estate or to the husband's heirs or to the Commonwealth by reason of escheat.
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. 140, § 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.