This petition is before this court upon an appeal from a decree entered by order of a judge of the Probate Court without a report of evidence taken under. G. L. c. 215, § 18, or a report of facts found by the judge made upon a request under G. L. c. 215, § 11, or anything to show what facts the probate judge found. Thé sole question presented to this court, therefore, is whether the decree was within the scope of the petition. G. L. c. 215, § 21, Brogna v. Commissioner of Banks, 248 Mass. 241.
The copy of an account was improperly annexed to the record,
It is obvious that facts might have been presented to the judge which would have resulted in his finding that, notwithstanding the appraisal made of the property of the intestate upon the inventory filed and described in the petition, the real value of the entire estate, real and personal, was $5,000 or less. Such being found to be the fact, by R. L. c. 140, § 3, cl. 3, under which statute the rights of the parties are to be determined, as the deceased died intestate and without issue, the surviving widow took a vested interest in the real estate as statutory heir. That right is not abridged by the provisions in the statute for the setting out of the real estate. R. L. c. 140, § 3, cl. 3. St. 1905, c. 256.
It was not essential for the widow to apply to the Probate Court for a decree permitting a sale or mortgage of the real estate or for a decree setting off the real estate to her. “These provisions merely afford a convenient means of ascertaining and adjudicating the facts upon which that right depends and so determining its existence and extent.” Nesbit v. Cande, *559206 Mass. 437, 439, 440. As the estate was less than $5,000 in amount, the entire property became hers on the death of her husband, and the income therefrom belonged to her. The case is governed by Nesbit v. Cande, supra, Walden v. Walden, 213 Mass. 418, and Naylor v. Nourse, 231 Mass. 341.
We do not consider Holmes v. Holmes, 194 Mass. 552, applicable on the facts here shown.
The decree of the Probate Court directing the administrator to pay the widow $1,139.54 is affirmed.
Ordered accordingly.