Foster v. Fifield , 37 Mass. 67 ( 1838 )

Shaw C. J.

delivered the opinion of the Court. Authority is given to this Court, by the Revised Statutes, to allow an appeal' from the decree of a judge of probate to be entered within one year after passing the decree, where the party aggrieved has been prevented, without default on his part, from prosecuting his appeal in the regular mode prescribed by law. Revised Stat. c. 83, § 39, 40, 42. The Court are satisfied, from the evidence exhibited, that the petitioners had no notice of the decision complained of, in season to enter a regular appeal, and ought to.have a right to appeal, if the decree was erroneous.

The decree was erroneous, so far as it ordered a distribution amongst the children of Ezekiel Merrill without regard to the rights of his widow. The statute of distributions in re spect to the estates of intestates, is as explicit in giving one third of the personal property after payment of debts, to the widow, as in giving two thirds to the children 01 their representatives.

The right to one third of the property is a vested interest, and not defeated or affected by a subsequent marriage or death of the widow before actual distribution, and the decree of distribution, when made, relates back to the original right. If she marries, and afterwards a decree of distribution is made, the second husband may claim the property as he may any other chose in action of the wife. If she dies, he not having reduced it to possession, it goes to her administrator ; and though the administrator be the surviving husband, who is her sole distributee of the residue of her personal property, still he collects the distributive share coming to her, in bis capacity of administrator, and not as husband in his own right. Here the administrator of Mrs. Foster was appointed at the request of the surviving husband, and, as such administrator, is entitled, on distribution, to one third of the residue of the intestate’s estate from Fifield, the administrator de bonis non.

The objection taken to this is, that this money obtained from the king of the Two Sicilies, by means of a treaty made by the government of the United States, was a new acquisition, and not a part of the assets of the intestate’s estate. This proposition is not'tenable. Fifield received it as administrator, as trustee for all entitled, first for creditors, and then for distributees or heirs. It is in the nature of a debt due to the intestate at the time of nis decease, but collected after-wards, through the mediation of the government.

The decree of the judge of probate, in so far as it ordered a distribution to the children of Ezekiel Merrill alone, to the exclusion of the representative of the widow of the intestate, .was erroneous, and to this extent must be set aside. The petition is allowed and the appeal sustained. The decree of distribution is reversed in the particular above specified ; in other respects it is affirmed, and the proceedings are remitted to the judge of probate for further proceedings.