Naylor v. Nourse

De Courcy, J.

The petitioner owns an undivided half interest in four parcels of real estate in the city of Lynn. The other undivided half interest was owned by her brother' James G. Nourse, who died April 15, 1915, intestate, leaving a widow, who is the respondent, Addie M. Nourse, and no issue. No administration has yet been granted on his estate. In June, 1917, the petitioner paid the entire tax assessed by the city on said real estate for the year 1916. She then brought this petition, under St. 1909, c. 490, Part II, §§ 74, 75, to enforce a lien upon the interest of the respondent as cotenant of said real estate, for the proportion of such tax payable by said Addie M. Nourse. The case is before *343 us on the respondent’s appeal from the decree of the Superior Court, establishing the lien and ordering a sale of the respondent’s undivided interest to satisfy the petitioner’s lawful charges and expenses.

The only objection to the decree relied on by the respondent is the contention that she has no title in said real estate, and therefore cannot be a tenant in common'with the petitioner. Although we must disregard the memorandum of the trial judge, as it is no part of the record (Cressey v. Cressey, 213 Mass. 191 ) the facts are not in dispute. So far as the record discloses there were .no unpaid debts of the deceased James G. Nourse, no charges against his estate, and no personal property left by him. In any event it is admitted that the whole amount of the estate left by him was less than $5,000 in value. See St. 1905, c. 256. The statute which determines the rights of his surviving spouse, the respondent, is R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256. The portion here 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,” The contention of the respondent, that under this statute she would acquire no interest in the real estate unless and until it should be set off to her, is disposed of by the recent cases Nesbit v. Cande, 206 Mass. 437 , and Walden v. Walden, 213 Mass. 418 . Upon the death of her husband without issue, and leaving an estate amounting to less than $5,000, she took a vested right in his real estate as statutory heir. The provisions of the statute for the sale or the setting out to her of the real estate, do not abridge nor qualify the nature of her interest, but merely afford means of determining the existence and extent of her right, and an additional form of remedy to assert her title. Nesbit v. Cande, supra. Sears v. Sears, 121 Mass. 267, 269 . Eastham v. Barrett, 152 Mass. 56 . See Bury v. Sullivan, 201 Mass. 327 .

Decree affirmed with costs.