
    EDWARD B. SWIFT, PETITIONER.
    Plymouth,
    June, 1902.
    
      Husband and Wife — Statutory Heir — $5,000 Estate — Set Off by Probate Court Under Revised Laws.
    
   Title to a portion of the property involved in this case comes under a set off by the Probate Court under the so-called “ $5,000 Statute.” The examiner questions the validity- of the set off because it was made after the enactment of the Revised Laws in which no provision was made for such proceedings, and- before the • passage of the remedial act which has just passed the Legislature.

The $5,000 estate created by Chapter 211 of the Acts of 1880, and provided for in the Public Statutes, Chapter 124, as amended by Chapter 255 of the Acts of 1885 and Chapter 290 of the Acts of 1887, was discontinued by Chapter 450 of the Acts of 1900. There had been an attempted repeal of 'it by Chapter 479 of the Acts of 1899, which was .intended to take effect April 1, 1900. The operation of this last act was, however, by Chapter 174 of the Acts of 1900, extended to January 1, 1901, and then later by Chapter 450 of the Acts of 1900 it was repealed altogether before it had ever taken effect.' The time for the taking effect of all except Section 11 of Chapter 450 of the Acts of 1900 was in the meantime extended, by Chapter 461 of the Acts of 1901, to January 1, 1902.

After January 1, 1902, therefore, no new $5,000 estates can arise. Prior to January 1, 1902, however, many such estates had already been created, and such estates so created are declared to be vested, inheritable estates, descending to the husband or wife as “ Statutory heir,” defined by value until duly set out, and in that condition inheritable, devise-able or saleable like any other estate. Lavery v. Eagan, 143 Mass. 389. Eastham v. Barrett, 152 Mass. 56.

Under the Public Statutes such estates could he set off by the Probate Court on petition therefor by any person in interest. Public Statutes, Chapter 124, Section 17, amended by Chapter 234 of the Acts of 1889, amended again by Chapter 170 of the Acts of 1894. By Chapter 227 of the Revised Laws the whole of the Public Statutes as such were repealed, and also Chapter 234 of the Acts of 1889. Chapter 170 of the Acts of 1894, however, was not expressly repealed by the Bevised Laws, but is marked therein superceded.”

On the passage of the Revised Laws, therefore, the machinery for assigning and setting out estates, created under the $5,000 statute was apparently discontinued, although the estates themselves continued in existence. This difficulty has been remedied by the passage of Chapter 482 of the Acts of 1902, declaring that the provisions of Chapter 170 of the Acts of 1894 (marked as above noted, “ superceded ”) are, nevertheless, “ in full force and effect ” in respect to claims to an estate in fee to which a surviving husband or wife was entitled on or before December 31, 1901, under the $5,000 statute. I think that this is a declaration by the legislature of the status of the provisions for a set off of such estates between the time of the passage of the Revised Laws and enactment of Chapter 482 of the Acts of 1902, and that a set off by the Probate Court between those dates was valid.

Decree for petitioner.  