Barnett v. Couey

• Citation: 27 S.W.2d 757,224 Mo.App. 913
• Decision Date: 05 May 1930
• Docket Number: 16900.
• Parties: LAWRENCE BARNETT, ADMR., APPELLANT, v. E. W. COUEY, ADMR., RESPONDENT
• Court: Court of Appeals of Kansas

27 S.W.2d 757

224 Mo.App. 913

LAWRENCE BARNETT, ADMR., APPELLANT, v. E. W. COUEY, ADMR., RESPONDENT

No. 16900

Court of Appeals of Missouri, Kansas City

May 5, 1930

Appeal from Circuit Court of Pettis County.--Hon. Dimmitt Hoffman Judge.

Action in equity by Lawrence Barnett, administrator of the estate of Cora Washington, deceased, against E. W. Couey, administrator of the estate of James Washington, deceased. From a judgment of dismissal, plaintiff appeals.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Barnett & Hayes for appellant.

D. E Kennedy and Shain & O'Bannon for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in equity brought by plaintiff, as the administrator of the estate of Cora Washington, deceased, whereby he seeks to have defendant, as administrator of the estate of James Washington, deceased, declared trustee of one-half the proceeds of certain bank deposits. Said deceased persons were husband and wife and formerly owned said deposits as an estate by the entirety.

A demurrer was sustained to the petition filed by plaintiff, and upon his refusal to plead further, the cause was dismissed. From this judgment of dismissal plaintiff has duly appealed.

Since the controversy arises as to the sufficiency of the petition, and the court's action in sustaining the demurrer thereto, the charging part of the petition is here set forth as follows:

"Comes now the plaintiff and states that he was on the 18th day of June, 1929, duly appointed the administrator pendente lite of the estate of Cora Washington, deceased, by the probate court of Pettis county, Missouri, and that he has duly qualified and is now acting as such administrator; that the defendant was duly appointed administrator of the estate of James Washington, deceased, by the probate court of Pettis county, Missouri, and has qualified and is now acting as such administrator.

"Plaintiff states that Cora Washington and James Washington were married to each other on the 18th day of May, 1925, and that thereafter they lived together as husband and wife until the time of the death of the said Cora Washington; that on or about the evening of March 10, 1929, the said James Washington, her husband, willfully and without justifiable cause murdered the said Cora Washington, his wife, that he survived her and thereafter committed suicide; that the said Cora Washington, at the time she was murdered by her husband, was twenty-five years old and that the said James Washington at said time was twenty-nine years old and that the said Cora Washington, because of said fact, had a greater expectancy of life than did the said James Washington.

"The plaintiff further states that, for a long time prior to the death of the said Cora Washington, the said Cora Washington and the said James Washington, husband and wife, owned jointly as tenants by the entirety certain property and that at the time the said James Washington murdered the said Cora Washington, that the said James Washington and the said Cora Washington, husband and wife, owned jointly as tenants by the entirety a bank deposit in the Sedalia National Bank of Sedalia, Missouri, of the value of $ 2,074.85, and a bank account in the Citizens' National Bank of Sedalia, Missouri, of the value of $ 1000; that the said James Washington murdered the said Cora Washington and after the death of the said James Washington that the defendant, the administrator of the estate of James Washington, took possession of all funds in both of said bank accounts and inventoried said funds as being the sole property of the estate of James Washington, deceased, and now claims all of said funds.

"The plaintiff further states that the said Cora Washington had a greater expectancy of life than the said James Washington and that the said James Washington by reason of his murder of the said Cora Washington, enriched himself and came into possession and control of all of said funds and that the legal title to said funds is now in his administrator, the defendant; that in equity and good conscience, the said James Washington and those claiming under him ought not to be permitted to enrich himself and themselves by reason of the murder by James Washington of his said wife, and the said James Washington and those claiming under him ought not to be permitted to profit by his wrong, and ought not in equity and good conscience be permitted to retain all of the funds owned by the said James Washington and Cora Washington as tenants by the entirety during their lifetime; that the said Cora Washington left surviving her an heir and that in equity and good conscience the defendant is and should be a constructive trustee for the benefit of the estate of the said Cora Washington, deceased, and plaintiff should be and is entitled to one-half the said funds which the said James Washington wrongfully acquired and that the interest of the plaintiff in the funds of which the defendant should be trustee amounts to $ 1537.42."

The petition concludes with a prayer that the defendant be declared a constructive trustee for the benefit of the estate of Cora Washington, deceased, to the extent of $ 1537.42 and that an order be made requiring him to account for any pay over to the plaintiff, as administrator, pendente lite, the said sum of money.

As reasons for his demurrer, defendant pleaded as follows:

"First: Because the facts set forth in said petition constitute no cause of action against the defendant.

"Second: For the reason that the facts stated in said petition constitute no cause of action in favor of plaintiff and under the facts stated therein he is not entitled to the relief prayed for.

"Third: Because under the facts stated in the petition and the law, plaintiff is not entitled to any part of the estate of James Washington, deceased, and now in possession of this defendant, and as described in plaintiff's petition.

"Fourth: Because under the facts stated in the petition and under the law, the property in the hands of this defendant, after the payment of debts, should be distributed to the heirs at law of James Washington, deceased."

In addition to the facts admitted of record by the pleadings filed, counsel for defendant, in their brief, frankly concede James Washington wrongfully killed his wife and immediately afterward committed suicide; that, as administrator of the estate of said deceased husband, defendant took charge of all the funds formerly held by said husband and wife as an estate by the entirety. The exact question presented for our determination under the pleadings and admitted facts conceded of record is, whether a husband, wilfully killing his wife, may become, as survivor, the sole and unconditional owner of an estate by the entirety so that he, or those claiming under him, may have and enjoy the full benefit thereof. Or, as expressed by counsel for defendant, is a court of equity authorized to impress a trust thereon to the extent of one-half of said estate, in favor of the heirs at law of such deceased co-tenant by entirety. The issue here presented has never been ruled upon in this State, so far as we are able to determine. In considering the matter submitted to the trial court sitting as a chancellor, and now before us for review, in the light of the circumstances indicated, certain well-settled equitable rules and principles should be recognized, to-wit: (1) No one shall be permitted to profit by his fraud, or wrong. (2) Neither shall he be permitted to found any claim his own iniquity, nor acquire property by his own crime. If, therefore, application of these rules be permitted in the instant case, the principles underlying them should be followed.

Defendant in his brief directs our attention to the case of Garner v. Jones, 52 Mo. 68; Brewing Company v. Saxy, 273 Mo. 159, 162, 201 S.W. 67; Wimbush v. Danford, 292 Mo. 588, 238 S.W. 460; Wilson v. Frost, 186 Mo. 311, 319, 85 S.W. 375; Frost v. Frost, 200 Mo. 474, 481, 98 S.W. 527, in support of his argument that each owns the whole estate and the survivor takes all, in any event of the decease of the cotenant by the entirety, without exception. He further argues that to grant plaintiff the relief sought would operate as a bill of attainder or forfeiture of the survivor's estate. On the contrary, plaintiff asserts this bill in equity was not brought for the purpose of causing James Washington or his heirs to forfeit any part of his estate because of the crime, but rather to prevent James Washington and his heir from enriching themselves as a result of his criminal act. The power of a court of equity is invoked to declare a resultant or constructive trust not for the entire estate, but for one-half of the fund in question.

We have carefully read the authorities cited by defendant but are not persuaded they are applicable, and they do not purport to pass on the direct question here presented. The effect of what they hold, under the facts recited, is clearly distinguishable from the present case and the theory upon which plaintiff seeks relief. It is not intended by our conclusions to question the well settled principles of law governing the creation and incidents of an estate by the entirety. We merely say that the ordinary rules of construction and operation do not extend to, or have within their contemplation, a survivorship which arises by a wrongful, illegal and felonious homicide committed by such survivor who, and those under him, may claim all the entirety estate. The principles generally governing such estates at common law must receive a reasonable interpretation consonant with the apparent object and plain intent of their creation. Unless we do violence to the...