301 Mass. 294 | Mass. | 1938
These are two petitions filed in the Probate Court for the county of Middlesex by Fanny May Hite, the administratrix of the estate of her husband, Hugh M. Hite, late of Urbana, Ohio. The first petition is brought by virtue of G. L. (Ter. Ed.) c. 190, § 1, to determine the value of specific personalty and real estate, alleged to be all the property left by the decedent in this Commonwealth and to be of a value less than $5,000. The second petition is based on G. L. (Ter. Ed.) c. 241, § 2, and seeks the partition and sale of the real estate mentioned in the first petition.
Both petitions were heard together in the Probate Court upon a statement of agreed facts, from which it appeared that the petitioner’s husband, Hugh M. Hite, a resident of Urbana, Ohio, died on July 25, 1937, intestate, without issue, his wife, the petitioner, and his father, Lewis F. Hite, the respondent in the first case, surviving him; that ancillary administration has been taken out in this Commonwealth by the petitioner; that at the time of his death the intestate was the owner of a one-third undivided interest in certain real estate in Cambridge, which he inherited from his mother, who died intestate in 1936; that his father and his sister, Harriet J. Hite, the respondents in the second case, each owned one undivided third interest in this realty; that the value of the intestate’s interest did not exceed $3,000; and that in addition to his interest in the aforesaid real estate he was the owner of two bank deposits here amounting to $1,192.02. The decedent at the time of his death owned personal and real property situated in the State of Ohio. The parties agreed that the total value of the estate left by the decedent in this Commonwealth is less than $5,000 and that the total net estate in both States exceeds this amount. The Probate Court, without making any decision on either petition, reported
The underlying question presented for decision in both cases is whether the wife of a nonresident husband, dying intestate without issue but leaving kindred, is entitled to take all his personal and real property located in this Commonwealth, if the value thereof does not exceed $5,000.
It has been the law of this Commonwealth for more than one half of a century that the surviving spouse of a decedent dying intestate, without issue but leaving kindred, takes a vested inheritable fee in the real estate of the decedent. At first, such a spouse took all the real estate in fee to an amount not. exceeding $5,000 in value. St. 1880, c. 211, §§ 1, 3. Pub. Sts. c. 124, §§ 1, 3. Then, the share of the survivor was enlarged by joining his rights as heir and distributee and providing for the payment of $5,000 together with one half of the remaining real and personal property. R. L. c. 140, § 3, Third. By subsequent enactments such a surviving spouse was given the entire estate if its value did not exceed $5,000. St. 1905, c. 256. St. 1917, c. 303. St. 1920, c. 468. G. L. (Ter. Ed.) c. 190, § 1. The widow of such a decedent is entitled as heir and distributee to take the whole estate if its value does not exceed $5,000. Lavery v. Egan, 143 Mass. 389. Lincoln v. Perry, 149 Mass. 368. Eastham v. Barrett, 152 Mass. 56. Howe v. Berry, 168 Mass. 418. Bury v. Sullivan, 201 Mass. 327. Nesbit v. Cande, 206 Mass. 437. Walden v. Walden, 213 Mass. 418. Naylor v. Nourse, 231 Mass. 341.
Nothing herein decided is contrary to Holmes v. Holmes, 194 Mass. 552, or Merchants National Bank of New Bedford v. Church, 285 Mass. 217, because the wife in the first case and the husband in the second case each came within the designation of an heir of the deceased spouse and thereby took an estate, not in the property of the latter, but in the property of a third person. See Spring v. Curry, 260 Mass. 556, 559; Old Colony Trust Co. v. Sullivan, 268 Mass. 318.
The intestate was a nonresident and his estate located here must be administered in the manner prescribed by
Chapter 199 must be construed with chapter 190 as parts of a single and complete statutory arrangement covering the descent and distribution of estates. Each must be accorded, in its field, the force and effect which the Legislature intended it to have. Such inconsistencies, if any, as may arise from the operation of statutes limited to the settlement of estates of nonresidents, when employed in conjunction with statutes governing the descent and distribution of property left by those domiciled here, must be so resolved as to produce a harmonious and workable statutory system. Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8. Decatur v. Auditor of Peabody, 251 Mass. 82. Tillson v. Springfield, 258 Mass. 72.
The right of the petitioner to share in the estate of her husband located here is a creature of our statutes. The fact that, if her husband were a resident decedent, she would be entitled to take all of his estate, is not at all decisive that her share would be the same if he were a nonresident. There aie essential differences between G. L. (Ter. Ed.) c. 199 and G. L. (Ter. Ed.) c. 190. The former is applicable only to the estates of nonresident decedents. It is limited to such property as is found within this jurisdiction and does not extend to the complete settlement of all the estate which is the subject matter coming within the sweep of c. 190. In the next place, our statutes require that recognition be given to the laws of the sister State in determining the distribution of the personalty located here, while under our statutes governing the administration of the estate of a resident decedent the entire estate is administered exclusively according to our own laws. These latter
A primary difficulty arises in applying a statute, the terms of which require that the personal property must be treated separately and apart from the realty, to a particular provision of a statute in which both are combined as a single unit in determining the inheritance of the surviving wife in the estate of her husband, who left property here not exceeding $5,000 in value. It is plain, however, that the distributive share of the wife is fixed by the law of Ohio, and to permit her to take all the personal property located here as the wife of a resident decedent might do would be contrary to the law of the domiciliary State, unless that law contained provisions similar to our own. Such a distribution would be violative of G. L. (Ter. Ed.) c. 199, § 1.
The record does not disclose any statute of Ohio or decision of that State establishing the share of the petitioner in the personal property. In the absence of any evidence of the law of a sister State, it is presumed that its common law is the same as that of this Commonwealth. Demelman v. Brazier, 193 Mass. 588. Atlantic Transportation Co. Inc. v. Alexander Shipping Co. Inc. 261 Mass. 1. The petitioner, however, is not seeking to enforce any common law right. The record fails to show that evidence relative to the law of Ohio was presented in the court below. There is, however, a statement in the brief of the respondent, Lewis F. Hite, “that in Ohio the widow, under the circumstances of this case, takes three-fourths of the decedent’s estate and the father one-fourth.” This court is not required to examine and determine the law of
The reference in the brief is undoubtedly to § 10503-4 of the General Code (1936) of Ohio, regulating the descent and distribution of property, which, in so far as material, reads as follows: “When a person dies intestate having title or right to any personal property, or to any real estate or inheritance in this state, such personal property shall be distributed, and such real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course: ... 4. If there be no children, or their lineal descendants, three-fourths to the surviving spouse and one-fourth to the parents of the intestate equally, or to the surviving parent; if there be no parents, then the whole to the surviving spouse.” Davis v. Warner, 47 Ohio App. 495, 502. Miller v. Miller, 129 Ohio St. 230, 236.
Not being entitled to all the personalty in this Commonwealth, the petitioner cannot maintain a petition for the determination of value for the purpose of enabling her to hold such property as the owner thereof. Neither has she an estate by inheritance in all her husband’s realty located here. That exists only when the primary' and complete administration of his estate is within the exclusive jurisdiction of our courts and where “the whole estate does not exceed five thousand dollars in value.” G. L. (Ter. Ed.) c. 190, § 1. It is conceded that the entire estate is of greater value. Such an estate does not come within the statutory description, and we need not decide whether the Ohio property should be considered in determining her rights in property located here. See Bankers Trust Co. of New York v.
Under G. L. (Ter. Ed.) c. 190, § 1, the rights of a surviving spouse as an heir and distributee are consolidated if the whole estate is worth less than the prescribed amount. We cannot, without doing violence to the statute, ignore the personal estate and consider the realty alone, where the estate, as here, consists of both kinds of property. Upon the petition for determination of value, the court could'not issue a separate decree on each kind of property. See Brown v. Thayer, 212 Mass. 392. If it is thought that a hardship results from depriving one from taking all the realty, if prevented from receiving the personalty, then that is a matter for the Legislature. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239. Sterling v. Frederick Leyland & Co. Ltd. 242 Mass. 8. We cannot supply any omissions, even if we were convinced that they exist. Arruda v. Director General of Railroads, 251 Mass. 255. Morse v. Boston, 253 Mass. 247. Besides, there is nothing contained in G. L. (Ter. Ed.) c. 199 which would authorize us to hold that, as an heir, she inherited all the
In Cheney v. Cheney, 214 Mass. 580, the petition of a widow of a nonresident decedent, who left only real estate in this Commonwealth, to compel the executor to sell the realty for the purpose of paying her $5,000, was dismissed, as R. L. c. 140, § 3, Third, giving the surviving spouse said sum, was held not to apply to the estate of such a decedent. It is unnecessary to repeat the grounds of that decision. In principle, it is decisive of the cases at bar. The contention that the Cheney case should be distinguished on account of the difference in phraseology between R. L. c. 140, § 3, Third, and G. L. (Ter. Ed.) c. 190, § 1, would be stronger were it not for the decisions rendered under the former before its amendment by St. 1917, c. 303. Nesbit
The petition for the determination of value is to be dismissed, while the petition for partition may be maintained upon the basis that the petitioner owns a one-sixth undivided interest in the real estate therein described.
Ordered accordingly.
