Laspy's Estate, In re, 24542

• Decision Date: 05 December 1966
• Docket Number: No. 24542,24542
• Citation: 409 S.W.2d 725
• Parties: In the Matter of the ESTATE of Julius LASPY, deceased. Barbara Jean McCALLOP, nee Mason, Administratrix-Respondent, v. Elsie Mae LASPY, Claimant-Appellant.
• Court: Missouri Court of Appeals

Page 725

409 S.W.2d 725

In the Matter of the ESTATE of Julius LASPY, deceased.

Barbara Jean McCALLOP, nee Mason, Administratrix-Respondent, v. Elsie Mae LASPY, Claimant-Appellant.

No. 24542.

Kansas City Court of Appeals, Missouri.

Dec. 5, 1966.

Rufus Burrus, Independence, for appellant.

Downey, Sullivan & McCormick, Kansas City, for respondent.

CROSS, Presiding Judge.

On January 1, 1955, Elsie Mae Laspy shot and killed her husband, Julius Laspy. Thereafter she filed claim against his estate under Section 474.250 V.A.M.S. for a widow's allowance in money for one year's maintenance and for $400.00 in cash in lieu of specific personal property. From an adverse judgment of the probate court, claimant appealed to the circuit court.

Upon trial de novo it was stipulated by appellant and respondent administratrix that claimant Elsie Mae Laspy is the widow of Julius Laspy, deceased, and that they were living together as husband and wife at the time of his death.

Pursuant to offer on behalf of the estate the court received in evidence the record of claimant's final conviction 'for manslaughter in the death of her husband, Julius Laspy', in the case of State v. Laspy, affirmed by the Supreme Court of Missouri, 323 S.W.2d 713, reference to which shows that she was tried three times by a jury in Jackson County on an information charging her with first degree murder. The first trial resulted in a conviction for second degree murder which was set aside by the trial court. The second trial resulted also in a judgment of conviction for second degree murder which was reversed on appeal. Upon her third trial she was convicted of manslaughter and sentenced to a term of ten years' imprisonment in the penitentiary. The cited Supreme Court opinion affirming the manslaughter conviction contains a meager recital of facts and refers to the opinion in her prior appeal reported in 298 S.W.2d 357 for a more complete statement of facts. From these sources we learn that claimant admittedly shot and killed her husband about 6:15 A.M., on January 1, 1955. The shooting climaxed an all night New Year's party in the Laspy home in Independence, which was attended by numerous people, as the party was in process of breaking up. The tragedy seems to have grown out of the husband's resentment over claimant's failure to lock the bathroom door when she entered therein. According to her testimony Laspy cursed her and kicked her in the stomach, procured a pistol, waved it in her face and threatened to kill her. Soon after, in their bedroom, Laspy again cursed and threatened to kill her, and then turned and reached into the closet. As he did so claimant picked up a pistol lying on the bed and shot him at least three times in rapid succession. He died almost immediately. Claimant testified she shot him in self defense because she thought he was reaching for a gun to kill her with.

During trial of the claim for allowances in circuit court an offer was made on claimant's behalf to show the nature and value of the estate, and the salary of decedent, as bearing on the amount of the maintenance allowance she should receive. Additionally claimant was tendered as a witness offering to testify that she shot and killed her husband 'in defense of herself, in fear of being shot herself, in self defense'. These offers were both refused.

The trial court found (1) that claimant was the wife of Julius Laspy at the time of his death on January 1, 1955, (2) that claimant caused his death by shooting, for which homicide she was tried and convicted of the crime of manslaughter, (3) that the conviction had been appealed to and affirmed by the Supreme Court, and (4) that claimant has been released from penal confinement 'after commutation of sentence and/or parole'. Upon those findings the court rendered judgment denying appellant's claim for allowances on the ground that 'the Applicant (appellant herein) caused the death of her deceased spouse and should not be permitted to recover her allowance for one year's support or for additional personal property by reason of the commission of said crime for which she was convicted, and that Applicant should not be permitted to profit by reason of her own wrong, or to base any claim or to acquire property by reason of the commission of such crime'. From that judgment claimant appeals.

The primary issue in this case is whether a wife who feloniously kills her husband will be permitted to take from his estate the property and allowances provided by statute for surviving widows. Appellant presses this court to rule that her conviction for the crime of manslaughter does not affect her right as a surviving spouse to receive support for one year. It is argued on her behalf that Section 474.260 as amended in 1957, clearly provides for such allowance and contains no exception that it shall be denied 'because of any manslaughter conviction of the surviving spouse'; that even if by prior court decisions it had been the rule that a person who murdered his spouse thereby forfeited his rights to inherit her property, such court construction cannot be read into Section 474.260 as re-enacted in 1957, without specific inclusion therein; and, that since the probate code by Section 474.140 RSMo 1959, V.A.M.S., does in fact make certain exclusions whereby a spouse forfeits inheritance and statutory rights by reason of misconduct, ¹ but provides no exclusion for homicide, it is to be considered that the legislature intended there be no denial of marital rights because of that crime, and that thereby the legislature repudiated court decisions to the contrary. These arguments are without merit and stand in conflict with prevailing authority herein to be noted.

In 1908 the Supreme Court rendered a landmark decision on these questions in the case of Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641, 16 L.R.A.,N.S., 244. The court there decided that a husband, who killed his wife without legal justification or excuse, and three hours later killed himself, could not inherit the portion of her estate otherwise given to him by the statutes of inheritance, and that hence his children took no interest therein. In a comprehensive and superbly reasoned opinion by Judge Graves it was pointed out that Missouri statutes of descent and distribution were borrowed largely from the common law and are generally expressive of the common law; and that, furthermore, when we adopted the common law, as we did in 1816, and in later reiterative adoptive statutes, we took the body of all the common law applicable under our state and federal constitutions, and that such is the law of this state, except where repealed, changed or modified by statute. Pertinent illustrative portions of the opinion are here quoted:

'In the case of Box v. Lanier, 112 Tenn. (393), l.c. 409, 79 S.W. (1042), 1045, 64 L.R.A. 458, the Supreme Court of Tennessee said: 'It has been well said that there are certain general and fundamental maxims of the common law which control laws as well as contracts. Among these are: 'No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquired property by his own crime. These maxims are adopted by public policy, and have their foundation in universal law administered in all civilized countries.' These maxims embodied in the common law, and constituting an essential part of its warp and woof, are found announced both in textbooks and in reported cases. Without their recognition and enforcement by the courts, their judgments would excite the indignation of all right-thinking people. The first of these maxims is applied in order to prevent one from taking the benefit of his own fraud. Why should not the last be enforced so as to forbid a party receiving the fruits of his own crime?

'And Earl, J., for the New York court of last resort, in (Riggs et al. v. Palmer et al., 115 N.Y. (506), l.c. 511, 22 N.E. 188, 190, 58 L.R.A. 340), * * * said: 'Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his won iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.' * * *

"Under the civil law evolved from the general principles of natural law and justice by many generations of jurisconsults, philosophers, and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered. * * * But so far as I can find, in no country where the common law prevails had it been deemed important to enact a law to provide for such a case. Our revisers and lawmakers were familiar with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a causes omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case, and that a specific enactment for that purpose was not needed.'

'These maxims of the common law are expressly made a part of our laws by the statutes of this state, first adopted in 1816, as we have hereinabove indicated. They are a part of the law of the state by force of section 4151, Rev.St. 1899, unless they have been repealed, changed, modified, or wiped out by statute law. Have we by statute either expressly or impliedly changed or modified the maxims discussed in the Tennessee and New York cases, supra? Has the common law in this respect been repealed, changed, or modified? We think not. If not, they are a part of our law. If not, then this statute must be read in connection therewith, and when so read the father of appellees acquired no interest in the...