Holloway v. Mccormick

• Decision Date: 25 November 1913
• Docket Number: Case Number: 3261
• Citation: 136 P. 1111,41 Okla. 1,1913 OK 692
• Parties: HOLLOWAY v. McCORMICK et al.
• Court: Oklahoma Supreme Court

1913 OK 692

136 P. 1111

41 Okla. 1

HOLLOWAY v. McCORMICK et al.

Case Number: 3261

Supreme Court of Oklahoma

Decided: November 25, 1913

Syllabus

¶0 1. DESCENT AND DISTRIBUTION--Right to Inherit--Uxorcide. The power to declare the rule for the descent of property is vested in the Legislature; and where it has provided in plain and peremptory language that a husband shall inherit from his deceased wife, and no exception is made on account of criminal conduct, the court is not justified in reading into the statute a clause disinheriting a husband because he feloniously killed his intestate wife.

2. BASTARDS--Acknowledgment of Paternity--Sufficiency. A writing, to constitute an acknowledgment of paternity within the meaning of section 8420, Rev. Laws 1910, must be one in which the paternity is directly, unequivocally, and unquestionably acknowledged.

3. SAME. This statute prescribes the kind of evidence necessary to establish the right of heirship to the father by his illegitimate offspring. The writing introduced in evidence, examined and held to be insufficient, as an acknowledgment, to fulfill the requirements of that portion of Section 8420, Rev. Laws 1910, which reads as follows: "Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child."

Burford & Burford, for plaintiff in error.

J. B. Patterson and C. B. Conner, for Joe McCormick. T. H. Wren, guardian ad litem, for defendant in error Luther McCormick.

GALBRAITH, C.

¶1 This was an action in partition, commenced by Joe McCormick in the district court of Okfuskee county, against Robert Holloway, a minor, claiming that plaintiff and defendant were each the owners of an undivided one-half interest in an allotment of land located in said county, which had been allotted to Lucinda McCormick, a freedwoman, who died in said county, intestate, on August 5, 1909, and praying for a partition of the land between said owners. The defendant answered by his guardian, admitting that he was a minor under nineteen years of age, and also that Lucinda McCormick died intestate, in Okfuskee county, Okla., on August 5, 1909, seised and possessed of an allotment of land, describing it, and he admitted also that he was the sole and only surviving brother of Lucinda McCormick, deceased, and specifically denied the other allegations of the petition. For further answer the defendant alleged that Lucinda McCormick died intestate, as aforesaid, and was the owner in fee and possessed of an allotment of land, and also that she left no father or mother or issue of her body, and left no brother or sister, except the defendant, and that the defendant was the only surviving relative of the deceased; that at the time of her death Lucinda McCormick was married to one Leonard McCormick, who was her lawful husband, and also that Leonard McCormick died on the same day as Lucinda McCormick, but denied that Leonard survived Lucinda, and alleged that the husband was survived by the wife, and that Leonard McCormick never became seised of any interest in her real estate, and that the plaintiff, Joe McCormick, who was the father of Leonard McCormick, did not inherit any part of said allotment, through his deceased son; and also setting out that one Luther McCormick, the infant son of Daisy Hamm, an illegitimate son of Leonard McCormick, deceased, claimed an interest in said real estate, and claimed to be an heir of his father, and asked that Luther McCormick be made a party to said action, and required to set up whatever claim or interest he might have in said lands, and further set out that on the 5th day of August, 1909, the said Leonard McCormick, deceased, willfully and feloniously murdered his wife, Lucinda McCormick, and on the same day committed suicide; that, even if the said Leonard McCormick did survive his wife, both he and those claiming through him thereby became incapable of enjoying any of the property of the said Lucinda McCormick, because of the murder aforesaid. By proper proceeding Luther McCormick was made a party defendant in said action; and a guardian ad litem appointed for him, and an answer was duly filed, setting out that his father, Leonard McCormick, had in writing, and in the presence of a competent witness, duly acknowledged him as his son, and that he therefore inherited one-half of the allotment of Lucinda McCormick, deceased, or the part that his father inherited. The new matter set out in the answers of the defendants was denied by reply. On the issues thus made the cause was submitted to the court for trial. The court found:

"That on the 5th day of August, 1909, Leonard McCormick purposely shot and killed his wife, Lucinda McCormick; that said Lucinda McCormick died intestate on said date, without issue, leaving surviving her her husband, Leonard McCormick, and her brother, Robert Holloway, as her sole and only heirs at law; that said Lucinda McCormick, at the time of her death, was seised in fee simple of the following described lands, which said lands had been allotted to her in her own right as a freed-woman of the Creek Nation of Indians, to wit, the S.W. 1/4 of section 20, township 12 N., range 8 E. and the W. 1/2 of the N. E. 1/4 of section 30, township 12 N., range 8 E. of the Indian Meridian, situate in Okfuskee county, Okla.; and that upon her death the said Robert Holloway and the said Leonard McCormick each inherited an undivided one-half interest in and to the said lands of which the said Lucinda McCormick died seised as above described. The court further finds that on the said 5th day of August, 1909, the said Leonard McCormick, immediately after taking the life of his wife, Lucinda McCormick, took his own life, then and there dying intestate, leaving surviving him his father, Joe McCormick, and his illegitimate son, Luther McCormick; that the mother of said Leonard McCormick died before the date on which said Leonard McCormick died; and that he left no issue surviving him other than said illegitimate child, Luther McCormick. The court further finds that on the 5th day of July, 1909, the said Leonard McCormick acknowledged in writing, signed in the presence of a competent witness, that he was the father of said Luther McCormick, and that, by reason of said acknowledgment of said Leonard McCormick, the said Luther McCormick became the heir at law of the said Leonard McCormick, and, as such, inherited from said Leonard McCormick an undivided one-half interest in and to the lands above described."

¶2 The court accordingly decreed that the plaintiff, Joe McCormick, take nothing by his suit, and that the defendants, Robert Holloway and Luther McCormick, were the joint owners of the land hereinabove described, and that each was the owner of an undivided one-half interest and entitled to share equally thereunder, and appointed three commissioners to make partition of the lands between the defendants. The defendant, Robert Holloway, excepted to that part of the decree giving Luther McCormick a one-half interest in the allotment, and perfected an appeal to his court. Joe McCormick excepted to the entire decree, and also perfected an appeal to this court, filing a cross-petition in error. It is contended by the plaintiff in error that a murderer cannot acquire title to property by his crime and hold it, nor can any one claiming under him; that although the legal title to one-half of the allotment of Lucinda McCormick passed, upon her death, to her husband, equity will treat him and those claiming under him as constructive trustees of the title, because of the unconscionable mode of its acquisition, and compel them to convey to the heirs of the deceased exclusive of the murderer. This contention is urged upon the court by ingenious argument, and finds some support in authority. However, none of the cases are exactly in point with the case at bar; they being cases construing a will, or those which concern the proceeds of insurance policies on the life of the murdered person, where the claimant was an active participant causing the death of the testator or insured. The statute of descent in force in 1909, at the time of the death of the allottee and her husband, provides (section 8984, Comp. Laws 1909, Rev. Laws 1910, sec. 8417):

"The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate. subject to the control of the county court, and to the possession of any administrator appointed by that court for the purpose of administration."

¶3 Section 8985, Id. (Rev. Laws 1910, sec. 8418), also provides:

"When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends to and must be distributed in the following manner."

¶4 It will be observed that the statute is general in its terms and makes no exception. The Supreme Court of Kansas said, in reply to a similar contention to that made by the plaintiff in error:

"Although a theory cutting a murderer out of any benefit resulting from his crime appeals to the court's sense of justice, it cannot be overlooked that the Legislature has the power to declare a rule of descents; it has done so in language that is plain and peremptory, and no rule of interpretation would justify the court in reading into the statute an exception or clause disinheriting those guilty of crime." (McAllister v. Fair, 72 Kan. 533, 541, 84 P. 112, 115, 3 L. R. A. [N. S.] 726, 115 Am. St. Rep. 233, 7 Ann. Cas. 973.)

¶5 Chief Justice Johnson, speaking for the Supreme Court of Kansas in the case from which the above excerpt was taken, answers the argument of the plaintiff in error, advanced in support of his theory, so fully that we feel justified in making the following quotation from that opinion:

"It is conceded that the statute is general and inclusive in its terms, but it is said to be inconceivable that

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