In Re: Estate of John Stephan

Whitfield, J. The last will and testament provides :“I *89 give, devise and bequeath to my wife, Mary Stephan, all my property, real, personal and mixed, of what nature and kind soever, I may die possessed of, she to receive the rents, incomes and profits thereof, for and during the term of her life, an'd at her death, I hereby order and direct that all money due from John B. Garman from papers held by me, I give, devise and bequeath to John B. Garman and Savilla Garman, their heirs and assigns forever.” Under the statute, Section 24 of the 1933 Probate Act, Ch. 16103, Acts of 1933, Section 5480(1) C. G. L. Perm. Supp., “The real and personal property of an intestate shall descend * * * “1. To the surviving spouse and lineal descendants, the surviving spouse taking the same as if he or she were one of the children. “2. If there be no lineal descendants’, to the surviving spouse.” A testator may be intestate as to all of his estate or as to a part thereof. The statute of descents applies to any property of a decedent not lawfully disposed of by will or otherwise as provided by law. In this case the residue of testator’s estate, after the wife’s life estate, was not disposed of by will except the specific'bequest to the Garmans; and as to such estate as remained after the wife’s life estate, except that bequest to the Garmans, was intestate property which at testator’s death passed under the statute of descents to his widow as his heir, he leaving no lineal descendants. Under the Massachusetts statute of descents the surviving widow took the whole estate of the decedent husband only “if the deceased leaves n'o issue and no kindred * * Title II, Chapter 190, Section 1 (3), General Laws of *90 Massachusetts (Tercentenary Edition, 1932). Under the Florida statute of descents the surviving spouse takes the decedent husband’s entire estate if there are no lineal descents of the deceased husband. In Bragg v. Litchfield, et al., 212 Mass. 148, 98 N. E. 673, the residue of testator’s estate was intended to be disposed of by the terms of the will, and the widow was not an heir at law of the testator while he had “kindred” as in that case. Decree affirmed. Terrell, C. J., Buford and Chapman, J. J., concur. Brown and Thomas, J. J., dissent.