287 Mass. 515 | Mass. | 1934
These two appeals from decrees of a probate court relate to the estate of Julia E. Lovering, deceased, late a resident of this Commonwealth. The first appeal is
The petition in the first case is entitled “Petition to Amend List of Heirs.” The heirs at law and next of kin of the decedent set out in the petition for administration of her estate are three cousins. The petition of the appellants assumes, if it does not expressly allege, that there are no heirs nearer than cousins. It alleges also that the decedent was an insane and incompetent person from birth to death and that her mother was insane for many years before her death. It alleges facts showing that a large part, if not the whole, of the estate of the decedent came to her because she was the sole heir at law and next of kin of her mother, that it consisted in considerable part of real estate which was not changed in character although converted into personal property, that this property came under will of her grandmother, Eliza Parker Shimmin, whereby under a trust the mother and father of the decedent enjoyed the benefit during their lives and upon the death of the survivor it went to the decedent as the only child of her mother, who was the daughter of Eliza Parker Shimmin; that the decedent also inherited estate from her mother derived by the latter as heir at law and next of kin from her brothers and sisters whom she survived. Further facts are set forth which are alleged to establish that the estate of the deceased “was made up and consisted of what under the common and civil laws was known as an ancestral estate” and that the
In respect to this petition there was filed in behalf of those named as heirs at law and next of kin in the petition for administration a motion which was in substance and effect a demurrer challenging both the practice and the substance of the petition. A decree was entered dismissing the petition (a) because it stated no case for relief conform-ably to the jurisdiction, practice and procedure of the court, and (b) because no law of the descent of ancestral estates prevails in the Commonwealth or governs the descent of the property and estate of the decedent.
1. The appellants invoke an ancient rule of the law of England with respect to the descent of real estate to the effect that "on failure of lineal descendents, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser.” 2 Bl. Com. (4th ed.) 220. It would be vain to undertake to trace the origin of this rule and to determine the social conditions to which it was applicable. The rule, so far as we have been able to discover, has never been recognized as prevailing within the territory now included
The point here raised is settled by previous decisions of this' court. In Sheffield v. Lovering, 12 Mass. 489, issue was raised as to the descent of the real estate of Mary Marsh inherited by her as the only child of her deceased father. She died under age, unmarried and without issue. She left her mother and brothers and sisters of the half blood, children of her mother by a marriage prior to her marriage with the father of Mary Marsh. No one of these was a lineal descendant or a collateral relation of Mary Marsh’s father, who was the “person last seised” and who so far as appears was “the first purchaser” of the land in question. Upon a strict application of the rule just quoted from Blackstone, seemingly the estate would have escheated. But the court, speaking through Jackson, J., said: “This could not be made a question at the common law; but with us, from the first settlement of the country, the rules of the descent and distribution of real and personal estate have generally been alike, and they depend wholly on our own statutes.” The history of the relevant statutes up to that time is then traced. The conclusion was reached that the estate of the deceased minor was to be divided in equal shares between her mother and her brothers and sisters of the half blood. Shortly after the Province Charter became effective, a comprehensive statute was enacted as to the descent of property. It was there provided that the property of a decedent who died leaving no husband, nor wife, nor child, nor representative of a deceased child, should be distributed to the next of kin in equal degree and in no other
The terms of the statutes as to the descent of undevised
It is not open to doubt that an insane person may inherit or acquire real estate by deed. An insane person may inherit from an insane parent. Anonymous, Jenkins, 299 (Case LVIII). Washburn, Real Property (6th ed.) § 1829. The devolution of the real estate held in fee and left undevised by an insane person never capable of executing a valid will is governed by G. L. (Ter. Ed.) c. 190. The allegations
It is not necessary to discuss further arguments presented in behalf of the appellants. They have all been considered. What has been said is decisive against their contentions. The case has been fully argued on this point and there is no objection to stating the grounds of substantive law which demonstrate that the appellants cannot prevail. See Commonwealth v. McNary, 246 Mass. 46, 48.
2. The substance of the petition shows that one purpose is to procure an adjudication that the appellants are heirs of the decedent. No such procedure is known to our probate practice except as it may be incidental to other direct relief. A petition for partial or final distribution of an intestate estate raises the issue as to the heirs at law and next of kin of the decedent. The issue may arise upon a petition for administration, or for proof of a will. The present petition is not directed to any of these proceedings. The time has not yet arrived for distribution of the estate of the decedent. The petition does not allege that the estate is ready for distribution. The appointment of the administrator has been made and no issue is now raised
3. There was no error of law in striking from the records the appearance in behalf of the appellants in the proceedings as to the allowance of the accounts of the guardians of the decedent. The appellees had not waived by conduct, procedure or words their right to move to strike out such appearance. Participation in the hearing on the petition of the appellants in the administration proceeding constituted no waiver. It is recognized procedure to move to strike from the record appearances entered in behalf of persons claiming to have an interest as heirs at law or next of kin in the estate of a decedent in process of settlement. Finer v. Steuer, 255 Mass. 611, 616-617. Edwards v. Cockburn, 264 Mass. 112, 120. Hopkins v. Treasurer & Receiver General, 276 Mass. 502. The issue raised on this motion was whether the appellants were heirs at law of the decedent. The decision of the trial judge amply supported by the evidence was that the appellees as first cousins of the deceased were her heirs at law and next of kin, and that the appellants, being children of a deceased first cousin of the decedent, were not her heirs at law and next of kin. This is in accord with the plain provisions of G. L. (Ter. Ed.) c. 190, § 3 (6). See Knapp v. Windsor, 6 Cush. 156. There was seemingly no dispute as to the degrees of kinship. Offers of proof as to the source from which the property of the decedent was derived were immaterial. The insanity of the decedent and of her mother had no relevancy to the issue to be decided. The appellants rested their con
No error of law is shown on either record. The result is that in each case the decree was right and is affirmed.
Ordered accordingly.