Hite v. Hite
| Decision Date | 25 October 1938 |
| Citation | 17 N.E.2d 176,301 Mass. 294 |
| Parties | HITE v. HITE. SAME v. HITE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Case Reserved and Report from Probate Court, Middlesex County; John C. Leggat, Judge.
Petition by Fanny May Hite against Lewis F. Hite brought under G.L. (Ter.Ed.) c. 190, § 1, to determine the value of specific personalty and realty alleged to be all the property left by decedent in the commonwealth of Massachusetts and to be of a value less than $5,000, and petition by Fanny May Hite against Lewis F. Hite and another based upon G.L.(Ter.Ed.) c. 241, § 2, seeking partition and sale of realty mentioned in the first proceeding. The probate court, without making decision on either petition, reported both cases in accordance with G.L.(Ter.Ed.) c. 215, § 13, for the determination of the Supreme Judicial Court.
Order in accordance with opinion.R. H. Wiswall, of Salem, and E. G. Kraetzer, Jr., of Boston, for petitioner.
G. Newhall, of Lynn, and J. Fine, of Cambridge, for respondents.
These are two petitions filed in the Probate Court of Middlesex County 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 both cases, in accordance with G.L.(Ter.Ed.) c. 215, § 13, for the determination of this court.
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 reamining real and personal property. R.L. c. 140, § 3, cl. 3. 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, 9 N.E. 747;Lincoln v. Perry, 149 Mass. 368, 21 N.E. 671,4 L.R.A. 215;Eastham v. Barrett, 152 Mass. 56, 25 N.E. 33;Howe v. Berry, 168 Mass. 418, 47 N.E. 104;Bury v. Sullivan, 201 Mass. 327, 87 N.E. 577;Nesbit v. Cande, 206 Mass. 437, 92 N.E. 766;Walden v. Walden, 213 Mass. 418, 100 N.E. 649;Naylor v. Nourse, 231 Mass. 341, 121 N.E. 26.
Nothing herein decided is contrary to Holmes v. Holmes, 194 Mass. 552, 80 N.E. 614, or Merchants' National Bank of New Bedford v. Church, 285 Mass. 217, 189 N.E. 49, 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, 157 N.E. 595;Old Colony Trust Co. v. Sullivan, 268 Mass. 318, 167 N.E. 648.
The intestate was a nonresident and his estate located here must be administered in the manner prescribed by G.L.(Ter.Ed.) c. 199, § 1. The petitioner was appointed ancillary administratrix by the Probate Court in this Commonwealth, and, after the payment of debts, was obliged to distribute the personal estate in accordance with the laws of Ohio, or, upon the allowance of her accounts, to pay it over to the domiciliary administrator for distribution, in the proportion and to the persons entitled to receive it under the pertinent statutes of that State. G.L.(Ter.Ed.) c. 199, § 2.
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 Co., 200 Mass. 8, 86 N.E. 289;Decatur v. Auditor of Peabody, 251 Mass. 82, 146 N.E. 360;Tillson v. Springfield, 258 Mass. 72, 154 N.E. 561.
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 are 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 chapter 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 provide that the surviving spouse shall take the whole of an estate, the value of which does not exceed $5,000; but if its value exceeds this sum, then the survivor is entitled to $5,000 and one half of the remaining real and personal property. If the personal property is insufficient to pay the $5,000, there are provisions for its payment by recourse to the real estate. On the other hand, the statutes governing the administration of the estate of a non-resident decedent do not provide different rules of inheritance depending upon the size of the estate.
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 similarto 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, 79 N.E 812;Atlantic Transportation Co., Inc., v. Alexander Shipping Co., Inc., 261 Mass. 1, 157 N.E. 725. 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 another sovereignty unless evidence thereof has been presented by the parties. Lennon v. Cohen, 264 Mass. 414, 163 N.E. 63;Richards v. Richards, 270 Mass. 113, 169 N.E. 891. We are authorized by G.L.(Ter.Ed.) c. 233, § 70, to take judicial notice of the laws of Ohio, and in view of the fact that the...
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