majority"> Field, C. J.

The beneficiaries named in the trust deed are all dead. Melancthon Smith died on July 10, 1861; Lucy Ann Smith died on February 19, 1867; Caroline Sumner Smith died on July 24,1862, having never married ; Mary Ashton Smith died on November 28, 1890, having married Samuel T. Holmes, January 18, 1869, and having had one child by him, who died September 4,1890, and who never married. Samuel T. Holmes was living until December 24, 1891, being insane and under guardianship, and on his death the administrators of his estate appeared in this suit. His wife, Mary Ashton Smith, left a will, in which she gave to him nearly all her property, including all trust property over which she had a power of disposition. The petitioner is the only surviving child of Melancthon and Lucy Ann Smith. The trustees, pursuant to the ninth article of the trust deed, have sold the parcels of land which constituted the trust property, and have invested the proceeds in stocks and other personal securities; but by the terms of the trust these are to be divided, in the event that has happened, “ in the same manner and among the same persons as is hereinbefore provided respecting said premises and the rents and income thereof.” *411The provision before made in the trust deed is found in the sixth article,, and is that the trustees, on the death of the surdaughter, the father and mother having died, shall “ convey the premises in fee simple to the heirs at law of said surviving daughter, in such shares and in the same manner as they would have held the same by the laws of Massachusetts if the said surviving daughter had died seised thereof in fee simple.”

There can be no doubt that Mary Ashton Smith, who was the surviving daughter, had no power of disposition over this property by will, and that the stocks and personal securities should be distributed as the real estate would have been conveyed if it had not been sold, and that the laws of Massachusetts in force when Mary Ashton Smith died are to govern the distribution. By those laws, on November 28,1890, if Mary Ashton Smith had died seised of the real estate in fee simple, her husband would have taken an estate in fee, to an amount not exceeding five thousand dollars in value, and he would also, as tenant by the curtesy, have taken an estate for his life in the rest of the real estate. Pub. Sts. c. 124, § 1. St. 1887, c. 290, § 1. As she left no issue, and no father or mother, and no issue of any deceased brother or sister, her real estate generally would have descended to her brother, the petitioner. Pub. Sts. c. 125, § 1, cl. 5.

The language of the trust deed in this case brings it, we think, within several recent decisions. As tenant by the curtesy, the husband is not an heir at law, but he is a statutory heir to an estate not exceeding five thousand dollars in value. Lavery v. Egan, 143 Mass. 389. Lincoln v. Perry, 149 Mass. 368, 373. Proctor v. Clark, 154 Mass. 45. The petitioner is the heir of the residue. Five thousand dollars should be paid to the administrators of the estate of Samuel T. Holmes, and the residue to the petitioner.

So ordered.

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