Hogg v. Whitham

• Decision Date: 06 February 1926
• Docket Number: 26,741
• Citation: 120 Kan. 341,242 P. 1021
• Parties: JOHN B. HOGG, Appellant, v. CHARLES E. WHITHAM et al., Appellees
• Court: Kansas Supreme Court

242 P. 1021

120 Kan. 341

JOHN B. HOGG, Appellant, v. CHARLES E. WHITHAM et al., Appellees

No. 26,741

Supreme Court of Kansas

February 6, 1926

Decided January, 1926.

Appeal from Cherokee district court; FRANK W. BOSS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DESCENT AND DISTRIBUTION--Persons Entitled--Murder as Forfeiture--Necessity of Conviction. In an action to quiet title to property which had belonged in her lifetime to a married woman, it appeared by the pleadings that she died intestate on January 27, her husband committed suicide on January 29, and on February 20 a coroner's jury found he had murdered his wife. Held, the husband was not disqualified to take the property as his wife's heir by the statute prohibiting persons convicted of crime from inheriting. (R S. 22-133.)

A. H. Skidmore, C. B. Skidmore, A. A. Skidmore, all of Columbus, and E. E. Sapp, of Galena, for the appellant.

Al F. Williams, Don H. Elleman, both of Columbus, Bert W. Adsit, B. R. Thompson and Jesse J. Herr, all of Pontiac, Ill., for the appellees.

OPINION

BURCH, J.:

The action was one to quiet title to real estate. Plaintiff claimed as sole heir of Abigail Whitham, deceased, who left no will. Defendants claimed as heirs of George Whitham, deceased, who survived his wife, Abigail Whitham. The petition and answer were in the usual form. The reply alleged that George Whitham murdered his wife on January 27, 1923, committed suicide on January 29, and on February 20, was convicted by a coroner's jury of murder of his wife. Defendants' motion for judgment on the pleadings was sustained, and plaintiff appeals.

The statute reads as follows:

"Any persons who shall hereafter be convicted of killing or of conspiring with another to kill or of procuring to be killed, any other person from whom such person so killing or conspiring to kill or procuring said killing would inherit the property, real, personal, or mixed, or any part thereof, belonging to such deceased person at the time of death, or who would take said property by deed, will or otherwise, at the death of the deceased, shall be denied all right, interest and estate in or to said property or any part thereof, and the same shall descend and be distributed to such other person or persons as may be entitled thereto by the laws of descent and distribution, as if the person so convicted were dead." (R. S. 22-133.)

The statute modifies the statute of descents and distributions, and may be translated into English as follows:

No person who, at the death of another, would otherwise be qualified to take property of the other by descent or purchase, shall have capacity to do so if he be convicted of killing, procuring the killing, or conspiring to kill, the other.

Plaintiff contends the purpose of the statute was to prevent a husband from inheriting from his wife whom he murdered, certainty of the fact of murder was deemed desirable, and so a directory provision relating to ascertainment of the fact was inserted in the statute. In this instance the killing is admitted by the motion for judgment, there is no occasion to resort to judicial inquiry, and the purpose of the statute will be subserved by giving the property in controversy to the heir of the murdered woman, instead of to the heirs of her husband who, but for the felony, would have inherited it.

Previous to the year 1907, the statute of descents and distributions provided that a husband shall inherit from his deceased wife. In the year 1906, the court decided the case of McAllister v. Fair, 72 Kan. 533, 84 P. 112. The syllabus...