Massachusetts Appeals Court Interprets Intestacy Law

In a recent decision, the Massachusetts Appeals Court found that the children of a deceased cousin have no interest in the estate of an individual who died without a will if a cousin is still living. In Freedman vs. Freedman, No. 01-9-1633 (Mass. App. Ct. June 9, 2003), Norman Joseph Feathers died intestate, leaving one first cousin, Margola Freedman, and five children of two other first cousins, the Holts, as his only living relatives. After being appointed the administratrix of the decedent's estate, Ms. Freedman filed a complaint for instructions on the issue of whether the Holts were entitled to inherit under G.L. ch. 190, §3(6), when there is a surviving first cousin. The trial court concluded that G.L. ch. 190, §3(6) required that the entire estate pass to Ms. Freedman. The appellate court agreed with this interpretation. The statute in question, G.L. ch. 190, §3(6) provides that: "If [an intestate] leaves no issue, and no father, mother, brother or sister, and no issue of any deceased brother or sister, then [his property shall pass] to his next of kin in equal degree; but if there are two or more collateral kindred in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote." Applying this language to the facts at hand, the court reasoned that since Ms. Freedman was the decedent's first cousin, she was entitled to preference under the statute because she was the nearest ancestor claiming an interest. Additionally, the court concluded that no where does the statute create a right of representation. Therefore the judge was not obliged to construe the statute as providing such right.