Parkman v. McCarthy
Decision Date | 20 June 1889 |
Citation | 21 N.E. 760,149 Mass. 502 |
Parties | PARKMAN v. McCARTHY. SAME v. McCARTHY et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from supreme judicial court, Suffolk county.
Francis Burke, for Marcus B. McCarthy and others. J.F. Cronan, for C.J. McCarthy. J.A. Maxwell and J.D. McLaughlin, for Mary Walsh. H. Parkman, in pro per. A.J. Waterman, Atty. Gen., for the Commonwealth.
An illegitimate person died intestate in the year 1888, leaving no wife, issue, or mother. A brother and a sister of his mother, and children of deceased brothers of his mother, survived him. The questions presented by the report are whether his personal estate escheated to the commonwealth, and, if it did not, whether the children of the deceased brothers of his mother are entitled to any share of it. The statute of descents (Pub.St. c. 125, § 4,) provided that if an illegitimate child died without issue who could inherit his estate it should descend to his mother. This was amended in less than two months after it took effect by St.1882, c. 132, by adding the words, “or in case she is not living, to the persons who would have been entitled thereto by inheritance through his mother, if he had been a legitimate child.” Under this statute the kindred of his deceased mother would inherit from him as if he had been her legitimate son, they are made his kin through her, and they inherit from him, and not from her. As the intestate in the case at bar left no father or mother, brother or sister, and no issue of any deceased brother or sister, his real estate would descend to his next of kin in equal degree. Pub.St. c. 125, § 1, cl. 6. St.1882, c. 132, makes the brother and sister of his mother his kin, and they would take his real estate to the exclusion of the children of her deceased brothers, who are one degree further removed. Conant v. Kent, 130 Mass. 178. By the statute of distribution, (Pub.St. c. 135, § 3, cl. 2,) personal estate of an intestate “shall be distributed among the persons who would be entitled to the real estate by chapter one hundred and twenty-five, and in the same proportions as there prescribed,” with exceptions which need not be noted. The question is whether Pub.St. c. 125, as it was originally enacted, or as was amended by St.1882, c. 132, is to govern the distribution of the personal estate. We think that when Pub.St. c. 125, provided for the descent of real estate, and chapter 135 for the distribution of personal estate to the persons who would be entitled to the real estate under chapter 125, the intention was to refer to the latter statute, as it might, from time to time, be amended. Chapter 125 is entitled “Of the Descent of Real Estate,” and the reference to it as chapter 125 may well be intended to be a reference to the statute of descents. The manifest intention of the legislature has been that, with specific exceptions, the personal property of an intestate should go in the same direction as the real estate. The form has been the general adoption of the enactments concerning the descent of real estate into the statute concerning the distribution of personal property. Formerly the provisions were contained in the same chapter and section. See St.1783, c. 36; St.1789, c. 2; St.1805, c. 90. They appear in...
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Stamper v. Stanwood
...similarly situated, whose claims depend upon the validity of a purported marriage between Alfred and Margaret. See Parkman v. McCarthy, 149 Mass. 502, 21 N.E. 760; Sanford v. Marsh, 180 Mass. 210, 62 N.E. 268; Newhall, Settlement of Estates (4th ed.) § 230. The respondent does not contend t......