Eisenhardt v. Siegel

• Decision Date: 17 September 1938
• Docket Number: 34978
• Citation: 119 S.W.2d 810,343 Mo. 22
• Parties: Augusta Eisenhardt, Byron Eisenhardt, Harlan Eisenhardt, Matilda Eisenhardt and Augusta Eisenhardt, Administrator of the Estate of Herman Eisenhardt, Plaintiffs in Error, v. Harodl Siegel, Maggie Verna Siegel, Louis Peeper and E. W. Guenther, Trustee, Defendants in Error
• Court: Missouri Supreme Court

119 S.W.2d 810

343 Mo. 22

Augusta Eisenhardt, Byron Eisenhardt, Harlan Eisenhardt, Matilda Eisenhardt and Augusta Eisenhardt, Administrator of the Estate of Herman Eisenhardt, Plaintiffs in Error, v. Harodl Siegel, Maggie Verna Siegel, Louis Peeper and E. W. Guenther, Trustee, Defendants in Error

No. 34978

Supreme Court of Missouri

September 17, 1938

Appeal from Morgan Circuit Court; Hon. Nike G. Sevier Judge.

Affirmed.

Wm T. Powers and C. I. Hoy for appellants.

(1) Judgment of probate final unless appealed from and cannot be attacked collaterally. Herron v. Dater, 120 U.S 477, the court said: "It is scarcely necessary to cite authority in support of the proposition that the orders, judgments, and decrees of the Orphan's Courts in a case where it had jurisdiction on the subject matter, cannot be impeached collaterally." Griffen v. Keese, 187 N.Y. 454, the court said: "A Surrogate's decree, in a proceeding for the settlement of an executor's account, that an annuity fund as then proposed to constitute by trustees under the will was proper and reasonable to produce the annuities required, from which no appeal was taken, is res judicata upon the reasonableness of the amount at that time as to all parties to the proceeding and their descendants." Wright v. Hetherlin, 209 S.W. 871. (2) A survival in legal contemplation is one who becomes such by ordinary and usual vicissitudes of life and not one who makes himself survive in fact by the willful murder of a party to benefit by his crime. German E. P. Congregation v. Schrieber, 209 S.W. 917; Perry v. Strawbridge, 209 Mo. 646; Van Alstyne v. Tuffy, 169 N.Y.S. 173; In re Santourian, 212 N.Y.S. 116. (3) The killing of one by another where the murderer received a benefit by his act will in equity be deemed a fraud upon the murdered and is against public policy. Perry v. Strawbridge, 209 Mo. 632. (4) Intent is not an element of defense, for, even though one be insane, he is liable for his torts. 32 C. J. 749, sec. 545; Gibson v. Pollock, 166 S.W. 874. "While a guilty intent is an essential element of criminal responsibility, intent is not generally an essential element of liability for tortuous acts or negligence, and hence the general rule is that an insane person may be liable for his torts the same as a sane person, except perhaps those in which malice, and therefore intention, is a necessary ingredient, as in the case of libel or slander. His liability for his tort, it has been held, is not affected by the fact that plaintiff knew the mental condition of defendant and might have prevented the act, or that defendant was under guardianship at the time." (5) Where a criminal act is involved in a civil case, preponderance of the evidence is all that is required, whether the evidence be direct or circumstantial. 23 C. J., pp. 14, 16, secs. 1746, 1749; Rothchild v. Am. Ins. Co., 62 Mo. 365; Gamer v. New Jersey Fid. Co., 200 S.W. 448; Rice v. Detroit, 176 S.W. 1119. (6) One cannot enrich himself by murdering another, nor benefit by his own wrong. In re Wilkins, 211 N.W. 652; In re Tyler, 250 P. 456; Perry v. Strawbridge, 209 Mo. 621; Box v. Lanier, 79 S.W. 1042; In re Santourian, 212 N.Y.S. 116; Bryant v. Bryant, 137 S.E. 188; Ellison v. Wescott, 142 N.E. 540. (7) Murder defeats the right to claim under survivorship. The revision must take effect by lawful methods and under lawful conditions. Van Alstyne v. Tuffy, 169 N.Y.S. 173; German E. P. Congregation v. Schrieber, 209 S.W. 917.

A. J. Bolinger for respondents.

(1) Plaintiffs tried this action as one not in equity, but at law, they should not now be permitted to shift their ground. And, being at law plaintiffs cannot be heard to attack the judgment of the court. Stinson v. Bank, 101 S.W.2d 537; State ex rel. v. Trimble, 39 S.W.2d 372. (2) The burden of proof was not sustained by plaintiffs. Coal Co. v. Mayer, 310 Mo. 104; Obermeyer v. Kirshner, 38 S.W.2d 513. (3) In action to set aside a deed on ground reversioner killed fee holder, intent to do wrong being decisive ground for action, insanity is a complete defense; hence decision of trial court for right party. Perry v. Strawbridge, 209 Mo. 621; Barnett v. Couey, 27 S.W.2d 757; 32 C. J. 750; 42 L. R. A. (N. S.) 83; 14 R. C. L. 596; Wharton on Homicide (3 Ed.), p. 1066; Holden v. A. O. U. W., 31 L. R. A. 67; Bindell v. Ins. Co., 108 S.W. 325, 17 L. R. A. (N. S.) 187.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause is to determine title to 198 acres of land in Morgan County. Title was adjudged to be in defendants in error, Harold Siegel and his wife, Maggie, subject to a deed of trust held by defendant in error, Peeper, in which deed of trust defendant in error, Guenther, was trustee. While plaintiffs in error, who were plaintiffs below, brought the cause to this court by writ of error, we shall refer to the parties as plaintiffs and defendants as styled below.

The facts are these: John and Herman Eisenhardt were brothers. John owned the farm in question. He was a paranoiac and had been for many years; was never married. Herman was married; had a wife, plaintiff Augusta; and a daughter, plaintiff Matilda; and two sons, plaintiffs Byron and Harlan. Herman Eisenhardt deserted his wife and family in 1921, but there was no divorce. July 18, 1904, John Eisenhardt was adjudged insane, and F. H. Siegel, father of defendant Harold Siegel, was appointed his guardian. John was in the asylum at Nevada (expenses paid by his guardian) at intervals from July, 1904, until August 11, 1927. On the last mentioned date, F. H. Siegel resigned as guardian, and Herman Eisenhardt, John's brother, was appointed guardian of John. After Herman was appointed guardian, he and John lived together on John's farm. August 29, 1931, on petition of Herman, John was declared sane by the probate court, and Herman was discharged as guardian, and it was found by the probate court that John's estate owed Herman $ 2547.26. On the same day that John was adjudged to be sane, but after such adjudication, he conveyed the farm by warranty deed to Herman for a recited consideration of $ 3000. Following the description the deed recites: "Subject however, to the following terms and conditions:

"Said property shall not be sold, alienated or incumbered by the said Herman Eisenhardt so long as the said John Eisenhardt shall live and if he, the said John Eisenhardt, shall live longer than the said Herman Eisenhardt, then at the death of the said Herman Eisenhardt the said above described lands shall revert to and become the absolute property of the said John Eisenhardt. The said Herman Eisenhardt to provide for and maintain the said John Eisenhardt during the term of his natural life as part of the consideration of this deed."

About seven A. M., April 8, 1932, Herman was found dead in the cow lot on the farm where he and John resided. Herman was shot by a shot gun, and the circumstances tend strongly to show that he was shot and killed by John. There was no plausible explanation, except John's insanity, as to why he would kill his brother. So far as appears they got along well, and Herman was devoted to John. At the time Herman was killed he was about sixty years of age, and John was seventy-four or seventy-five. John was not prosecuted, but was again adjudged insane and sent back to the asylum, and F. H. Siegel, his former guardian, was again appointed guardian. F. H. Siegel, as guardian, took charge of the farm and in September, 1932, through proceedings in the probate court, sold the farm at private sale to his son, defendant, Harold Siegel, for $ 1365. John had no money or personal property, and the sale was necessary in order to pay John's expenses at the asylum. Harold Siegel had to borrow part of the money in order to pay for the farm, and he borrowed from defendant Peeper and gave a deed of trust on the farm to secure the note given to Peeper. At the time of the trial, John, the ward, had no money left, and Morgan County was paying for his care at the Nevada Asylum.

This cause was filed June 16, 1933, and resulted, as stated, in a judgment and decree for defendants. The court found that "the defendants Harold Siegel and Verna Siegel are the owners in fee simple of the lands described in plaintiffs' petition, subject to a certain deed of trust wherein E. W. Guenther is trustee and Louis Peeper is beneficiary. That none of the plaintiffs have any right to, lien upon, or interest in the said lands or any part thereof." And it was adjudged that plaintiffs and each of them be "forever barred and precluded from setting up, claiming or attempting to claim any right or title to, interest in, or lien upon the lands" described.

Plaintiffs' cause is based on the theory that John murdered Herman, and that, under the law of this State, the murder of Herman by John would preclude reversion of the title to John. On the other hand defendants contend that "plaintiffs did not sustain the burden of proof that John" murdered Herman and say, in effect, that even though John did kill Herman, and under such circumstances as to constitute murder, if John were sane, still, under the evidence as to John's sanity at the time, the situation should be considered as though the accusing finger did not point to John. The finding of the court was general, hence no specific finding on the issues of murder and sanity. Plaintiffs say that John having been adjudged sane by the probate court on August 29, 1931, and no further adjudication as to John's sanity prior to Herman's death, the adjudication of John's sanity on August 29, 1931, cannot be attacked collaterally, arguing in this respect that defendants' contention that John was insane at the time of the alleged murder, is a collateral attack on the adjudication of...