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Inheritance: Prior Law

Probate

Intestacy between 1806 and 1876 is governed by rules different than those in effect today. The statute in effect between 1806 and 1876 was an effort, as Carroll O'Connor would say, to keep all inheritances in the family. The actual text of the statute is as follows:

provided, that when any child shall die under age, not having been married, his share of the inheritance that came from his father or mother, shall descend in equal shares to his father's or mother's other children then living respectively and to the issue of such other children as are then dead (if any) by right of representation. (Emphasis added).

The sentence, of course, takes on new meaning when the italicized portions are read into its text. The statute does not in all instances deprive the issue of a deceased under aged child from an inheritance . The statute applies only (i) when the deceased was under age and never married[1] and (ii) when the property at issue had been inherited by the deceased from his or her father or[2] mother.

1 The issue of such a person would be illegitimate and, as to a male, always be ineligible to inherit and, as to a female, be unable to inherit until the passage of G.L.c. 190, §5 in 1828.

2 The statute uses the disjunctive, which indicates that the "brothers and sisters" referred to in Mendler's treatise could include stepbrothers and step sisters.