Eastham v. Barrett

• Decision Date: 21 June 1890
• Citation: 25 N.E. 33,152 Mass. 56
• Parties: EASTHAM et al. v. BARRETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 56

25 N.E. 33

EASTHAM et al. v. BARRETT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 21, 1890

COUNSEL

E.C. Bumpus, for appellants.

Wm. M Stearns, John Haskell Butler, and Wm. H. Stearns, for respondents.

OPINION

FIELD J.

This case comes before us upon exceptions to the ruling of the superior court "that the petitioners were entitled to have said lands, to an amount not exceeding $5,000 in value assigned and set out to them," and upon an appeal from the judgment of that court that the report of the commissioners be confirmed, and that the partition made "be firm and effectual forever." The petitioners are the heirs at law of Charles Eastham. The respondents are the heirs at law of Elizabeth Eastham. Elizabeth Eastham died at Malden, in this commonwealth, where she was domiciled, on May 17, 1883, intestate, leaving no issue living, but leaving her husband, the said Charles Eastham, surviving her. She died seised of an estate of inheritance in lands in said Malden exceeding $5,000 in value, and her estate was settled in the probate court for the county of Middlesex, within which Malden is situated. Charles Eastham died in said Malden on July 20, 1887, intestate, and his estate is in process of settlement in said probate court. Charles, after the death of his wife, occupied and used all said real estate until his death, but he made no application during his life to have a portion of the land to the value of $5,000 set out to him, either by metes and bounds or as an undivided portion. This petition by his heirs was made to said probate court, but, it appearing that the shares of the petitioners were in dispute, the petition was removed to the superior court. See Pub.St. c. 124, §§ 1, 3, 17; chapter 178, §§ 1, 45, 46, 48. St.1889, c. 234, was passed after the petition was removed. The only question which has been argued is whether the estate in fee, to an amount not exceeding $5,000 in value, given to the husband by St.1880, c. 211, now Pub.St. c. 124, § 1, descended to his heirs on his death, it not having been set out or assigned to him during his life.

The contention is that an estate in the land did not vest in him on the death of his wife, but that he had only a personal right to have an estate set out to him, either by metes and bounds or as an undivided portion, and that this right expired when he died. There is nothing in the statutes indicating any such intention on the part of the legislature. The statute of 1880 provided, by section 1, c. 211, that "whenever any person shall die intestate without leaving issue living, and shall leave a husband or wife surviving such husband or wife shall take in fee the real estate of such deceased to an amount not exceeding five thousand dollars in value;" and, by section 2, that "the probate court having jurisdiction of the estate of said deceased, on petition of any person in interest, shall cause the real estate which the husband or...