
    William W. Eastham & others vs. Henry Barrett & others.
    Middlesex.
    March 19, 1890.
    June 21, 1890.
    Present: Field, Devens, W. Allen, Holmes, & Knowlton, JJ.
    
      Estate of Deceased Person — Husband and Wife — Real Estate in Fee.
    
    Under the St. of 1880, c. 211, (Pub. Sts. c. 124,) providing that the surviving husband or wife of an intestate leaving no issue living “shall take in fee the real estate of such deceased to an amount not exceeding five thousand dollars in value,” to be “ assigned and set out ” by the Probate Court, the survivor takes a vested inheritable estate in fee defined by its value until duly set out or assigned, which descends like other real estate.
   Field, J.

This is a petition for the assignment of real estate out of the lands of a deceased intestate, and the 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 five thousand dollars in value assigned and set out to them”; and upon an appeal from the judgment of that court, that partition be made by setting off to the petitioners real estate to that amount, in accordance with the report of the commissioners appointed to make partition of said lands, and that the partition made “ be firm and effectual forever.” The petitioners are the heirs at law of Charles East-ham. 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, 1888, 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 Malden, exceeding five thousand dollars 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 Malden on July 20, 1887, intestate, and his estate is in process of settlement in the Probate Court. Charles, after the death of his wife, occupied and used all her real estate until his death, but he made no application during his life to have a portion of the land to the value of five thousand dollars set out to him, either by metes and bounds, or as an undivided portion. This petition by his heirs was made to the Probate Court, but, it appearing that the shares of the petitioners were in dispute, it was removed to the Superior Court. See Pub. Sts. c. 124, §§ 1, 3,17 ; c. 178, §§ 1, 45, 46, 48. The St. of 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 five thousand dollars in value, given to the husband by the St. of 1880, c. 211, now the Pub. Sts, 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 St. of 1880, c. 211, provided, in § 1, 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 in § 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 wife takes under the preceding section to be assigned and set.out,” &c. The plain meaning is, that the husband or wife takes, on the death of the wife or husband, an estate in fee by virtue of the first section, and that under the second section the estate so taken may be set out either by metes and bounds, or as an undivided portion, on the petition of any person in interest. In incorporating this statute with others in the Public Statutes, there has been no substantial change. Pub. Sts. c. 124, §§ 1, 3, 17. The estate thus given in fee is in addition to an estate of dower, homestead, or curtesy in the remaining land, and there is nothing showing any intention that any of the peculiar characteristics of a right of dower should attach to this estate in fee. Before it is set out by metes and bounds, or is assigned as an undivided part, it is a vested estate in fee, but, like an estate of homestead, it is defined by its value until some person in interest proceeds to have it defined by metes and bounds, or as a fractional part of the whole real estate, or of some part of it. Being an inheritable estate in land it descends like other real property. Cochran v. Thorndike, 133 Mass. 46. Elliot v. Elliot, 137 Mass. 116. Lavery v. Egan, 143 Mass. 389. Lincoln v. Perry, 149 Mass. 368. McMahon v. Gray, 150 Mass. 289. See Parks v. Reilly, 5 Allen, 77; Silloway v. Brown, 12 Allen, 30; Swan v. Stevens, 99 Mass. 7.

E. G. Bumpus, for the petitioners.

W. S. Stearns Sp J. E. Butler, (W. E. Stearns with them,) for the respondents.

The exceptions must be overruled and the judgment of the Superior Court affirmed. So ordered. 
      
       See St. 1887, c. 290, § 1.
     