Abrams v. Unknown Heirs of Rice

• Decision Date: 24 May 1927
• Docket Number: 25964
• Citation: 295 S.W. 83,317 Mo. 216
• Parties: Fannie Abrams et al. v. Unknown Heirs of James P. Rice and J. C. Hildreth, Public Administrator of Estate of James P. Rice
• Court: Missouri Supreme Court

295 S.W. 83

317 Mo. 216

Fannie Abrams et al. v. Unknown Heirs of James P. Rice and J. C. Hildreth, Public Administrator of Estate of James P. Rice

No. 25964

Supreme Court of Missouri

May 24, 1927

Appeal from Jasper Circuit Court; Hon. S.W. Bates, Judge.

Affirmed.

Norman & Norman and George V. Farris for appellants.

(1) The title to the property described in plaintiffs' petition being vested in Anna Rice, wife of James P. Rice; on the death of Anna Rice, one-half of said real estate descended to James P. Rice and there being debts proven against said real estate defendant Hildreth, as administrator, was entitled to have said real estate sold to pay said debts of James P Rice, deceased. (2) In an action between heirs of husband and wife who perished in the same fire, to recover the husband's estate, the husband's heirs having alleged that he survived his wife had the burden of so proving. So the burden was on plaintiffs in the case at bar. Nolf v Patton, 103 S.E. 528; McComas v. Wiley, 108 A 196. (3) Where there is any evidence whatever, even though it be but a shadow, it must govern in the decision of the fact. Pett v. Ball, 15 S. C. Eq. 99; Broome v. Duncan, 29 So. 394; Ehle's Est., 73 Wis. 445, 41 N.W. 627; St. John v. Andrews Institute for Girls, 102 N.Y.S. 808; Supreme Council v. Kacer, 96 Mo.App. 93. (4) Under the law and the evidence the finding and judgment of the court should have been for the defendants as to one-half the property involved in this suit. R. S. 1919, sec. 320; 17 C. J. 1180.

R. A. Pearson and W. L. Butts for respondents.

(1) Where husband and wife perish in a common disaster, the wife's estate vests in her heirs, and the husband's next of kin claiming by virtue of his survivorship must prove such survival. Waddle v. Frazier, 245 Mo. 401; U.S. Causalty Co. v. Kacer, 169 Mo. 310; Supreme Council v. Kacer, 96 Mo.App. 105. (2) Where persons perish in a common disaster and it is not shown by competent proofs which survived the other, the law determines the question as though the deaths were simultaneous. Aley v. Railroad, 211 Mo. 480; Re Gerdes Estate, 100 N.Y.S. 440; Supreme Council v. Kacer, 96 Mo.App. 93; Re Sweeney Estate, 78 Pa. S.Ct. 417; Re Englebert's Will, 171 N.Y.S. 489; 17 C. J. 1179, sec. 32. (3) Where the wife dies childless, the widower must make his formal election to take half of her estate: otherwise, he only takes the same dower interest a widow has. Laws 1921, p. 119; Castleman v. Castleman, 184 Mo. 444; Bryant v. Administrator, 58 Mo. 104; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Keeney v. McVoy, 206 Mo. 69; Brawford v. Wolfe, 103 Mo. 398. (4) Inchoate rights in expectancy do not become vested until the death of the spouse through whom they are derived, and such rights may be modified or abolished by the Legislature. 12 C. J. 963, sec. 507; 18 C. J. 809, sec. 6, and 816, sec. 132; O'Brien v. Ash, 169 Mo. 298; Henderson v. Calhoun, 183 S.W. 584; Ferguson v. Gentry, 206 Mo. 189; Bartlett v. Tinsley, 175 Mo. 332.

OPINION

Graves, J.

Action to quiet title to certain described lands in Jasper County brought by Fannie Abrams, Harry L. Abrams, Henry J. Abrams, Jacob Abrams, Edward Abrams, and Bessie Lesser, the heirs of Anna Rice, who died intestate in Joplin about the 20th day of November, 1923. The defendants are the unknown heirs of James P. Rice, the husband of Anna Rice, and J. C. Hildreth, Public Administrator of the Estate of James P. Rice, deceased. Service was by publication on the unknown heirs.

The administrator answered that Anna Rice died without leaving issue surviving her husband. That upon her death her husband became entitled to an undivided one-half of her estate; that the defendant J. C. Hildreth is the administrator of such estate and that there are unpaid claims in excess of the personal property of the estate. He prays for an undivided one-half of the estate.

The reply admits the death of Anna Rice intestate; that plaintiffs are her sole heirs; that defendant, J. C. Hildreth, is the Public Administrator of Jasper County, and as such in charge of the estate of James P. Rice, also deceased. That James P. Rice in his life time was the husband of Anna Rice. The other allegations in the answer are denied.

The petition, answer and reply make the statutory suit to quiet title. This suit is a suit at law under Section 1970, Revised Statutes 1919.

The case was tried by the court without a jury and a finding of facts was made by the court. This finding of facts cannot be disturbed by us, if based upon substantial evidence, and the conclusion is correct. [Hamilton v. Boggess, 63 Mo. 252; Black v. Howerton, 237 S.W. 472; Laughlin v. Laughlin, 237 S.W. 1027; Koehler v. Rowland, 275 Mo. 582; Bobb v. St. Louis, 276 Mo. 67; Morrison v. Bomer, 195 Mo. 538.]

The facts as found by the learned trial court were: "The plaintiffs are the alternative beneficiaries of Anna Rice, deceased, and the defendants are the alternative beneficiaries of James P. Rice, deceased, and J. C. Hildreth, Public Administrator, as the administrator of the estate of the said James P. Rice; that on or about the 20th day of November, 1925, James P. Rice and Anna Rice, his wife, were found dead in the bathroom of their home in the city of Joplin, Missouri. The bodies of both were badly decomposed, showing they had been dead for several days. The bathroom in which the bodies were found was located on the second floor of the residence; in the northeast corner thereof, being a small bathroom about seven feet east and west and five feet north and south. In the west end of said bathroom there was a door leading into another room of said house, and at the west end of the south wall of said bathroom there was a door leading into the kitchen. When the bodies were found, the west door of the bathroom was closed, the south door leading into the kitchen was open. In the northwest corner of the bathroom was a small gas stove, and in the kitchen, along the wall separating the bathroom from the kitchen and just east of the door leading from the kitchen into the bathroom, was a gas heater. The gas was burning in both the bathroom stove and the heater. At the time the bodies were found, the bathroom, and the kitchen, and as a matter of fact, the whole house, was filled with gas fumes from the burning stoves; the presence of the fumes being especially heavy in the bathroom and kitchen. In the southeast corner of the bathroom was the toilet, and the body of Mrs. Rice was found seated on the toilet, unclothed, with the head resting against the wall. The body of James P. Rice, deceased, was found lying between the bathtub and the wall separating the kitchen from the bathroom; his feet at or near the feet of the deceased, Mrs. Rice, and his head very near the gas stove in the bathroom. The gas stove in the bathroom was a type not now being sold or used to any extent and was of such design that it would not cause complete combustion of the gas and had no pipe leading from it to any outside opening for the purpose of carrying off the fumes. The body of James P. Rice, deceased, was clothed, except that he had removed his coat. His glasses were on. There was an electric light burning in the kitchen, but no light burning in the room immediately west of the kitchen and bathroom. In the kitchen a newspaper was lying on a table.

"I find from the evidence that the death of both parties was caused by the fumes from the burning gas. I cannot find as a fact that Anna Rice survived her husband, or that he survived her. Those facts of the time of the deaths are not capable of being judicially ascertained. But I do find that they both died simultaneously and in the same common disaster, and determine the question as if both died at the same moment. On the foregoing facts, I find the issues for the plaintiffs, Fannie Abrams, et al., the heirs of Anna Rice, deceased."

The record shows that several days had elapsed between the death of these parties and the finding of their bodies. There is no evidence with respect to the death of the parties other than the physical condition existing on the Monday following their decease.

It might well be that the position of the wife indicated that she intended to take a bath and was the first attacked by the carbon monoxide and either her silence, some sound from her...