Walden v. Walden

• Decision Date: 29 January 1913
• Parties: WALDEN v. WALDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 418

100 N.E. 649

WALDEN v. WALDEN.

Supreme Judicial Court of Massachusetts, Norfolk.

January 29, 1913

COUNSEL

Oscar

A. Marden, of Boston, and Cornelius E. Hale, of North Attleboro, for petitioner.

E. J Whitaker, of Boston, for respondent.

OPINION

SHELDON J.

Under the will of James H. Walden, who died in 1885, his son Oscar or Lucius, the respondent, took the half part of one parcel of the testator's real estate, and the testator's widow took and enjoyed under the will a life interest in all the residue of his real estate. As to the remainder in this residue, James H. Walden died intestate. Under the statute then in force (Pub. Sts. c. 14), that remainder vested subject to the life estate of his widow in his two sons, the respondent and Ernest L. Walden, as tenants in common, and each one of them then took a vested and alienable interest in his undivided share. See the cases collected by Lathrop, J., in Baker v. Baker, 167 Mass. 575 576, 46 N.E. 391. Ernest L. Walden died March 6, 1909, intestate and without issue, while his mother was yet living, leaving the petitioner as his widow and his mother and the respondent as his only next of kin. His mother, the holder of the life estate, has since died, leaving the respondent as her only next of kin.

The petitioner, as the widow of Ernest L. claims to be entitled to one-half part of his interest in the lands in which he had inherited an undivided share from his father. The respondent contends that she did not take any portion of these lands or any interest therein because her husband held in his lifetime only an estate in remainder and never had any actual siesin or possession thereof. He relies upon the decisions in Watson v. Watson, 150 Mass. 84, 22 N.E. 438 Baker v. Baker, 167 Mass. 575, 46 N.E. 391, and Hill v. Pike, 174 Mass. 582, 55 N.E. 324. But these cases were all decided under Pub. Sts. c. 124, § 3. Ernest L. Walden died in 1909; and the rights of his widow are determined by the statute then in force. R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256. That statute, so far as directly material, reads as follows: 'If the deceased leaves no issue, the surviving husband or widow shall take five thousand dollars and one half of the remaining personal property and one half of the remaining real property.' This is an increase of the rights of the surviving spouse. Each is made, in case of the intestacy of the other, a...