McClure v. McClure

• Decision Date: 15 March 1991
• Docket Number: No. 19777,19777
• Citation: 403 S.E.2d 197,184 W.Va. 649
• Parties: Roy Lee McCLURE and Mary Frances McClure, his Wife v. Lu Ann Dotson McCLURE and Lu Ann Dotson McClure, Administratrix of the Estate of James Edward McClure, and Kansas City Life Company, Inc., a Corporation.
• Court: West Virginia Supreme Court

Page 197

403 S.E.2d 197

184 W.Va. 649

Roy Lee McCLURE and Mary Frances McClure, his Wife v. Lu Ann Dotson McCLURE and Lu Ann Dotson McClure,

Administratrix of the Estate of James Edward

McClure, and Kansas City Life Company,

Inc., a Corporation.

No. 19777.

Supreme Court of Appeals of,

West Virginia.

March 15, 1991.

Syllabus by the Court

1. The county commission has jurisdiction and power to make appointments of personal representatives, guardians, committees, and curators under W.Va.Code, 44-1-4 (1923). Where the propriety of the appointment depends upon facts to be ascertained by such commission, its action is conclusively presumed to have been proper in all collateral proceedings.

2. W.Va.Code, 42-4-2, is designed to permit proof of a judgment of conviction for felonious killing to bar the slayer from obtaining property or life insurance proceeds from the person killed. Where there is no such conviction, then evidence of an unlawful and intentional killing must be shown in a civil action.

3. When a court is considering a motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff, and its allegations should be considered as true.

4. Under W.Va.Code, 55-7-6 (1985), our wrongful death statute, the personal representative has a fiduciary obligation to the beneficiaries of the deceased because the personal representative is merely a nominal party and any recovery passes to the beneficiaries designated in the wrongful death statute and not to the decedent's estate.

5. Where a personal representative has been shown to have acted in violation of his or her fiduciary duties, he or she may be removed for cause.

Larry E. Losch, Summersville, for Roy Lee McClure and Mary Frances McClure.

Lee Adler, Beckley, for Lu Ann Dotson McClure.

Gary Hart Jackson & Kelly, Charleston, for Kansas City Life Co.

MILLER, Chief Justice:

Roy Lee McClure and Mary Frances McClure, his wife, appeal the dismissal of their civil action. The McClures had filed suit in the Circuit Court of Nicholas County against their daughter-in-law, Lu Ann Dotson McClure, individually and as administratrix of their son's estate. Also named in the complaint was Kansas City Life Company, Inc., which issued three life insurance policies on the plaintiffs' son, James Edward McClure, on which the defendant was named as the beneficiary. The purpose of the McClures' suit was to prevent their daughter-in-law from acting as the administratrix or inheriting from their son's estate and to preclude her from obtaining the insurance proceeds.

The gravamen of the complaint's multiple counts was that Lu Ann Dotson McClure had caused her husband's death, and, therefore, she should not administer his estate or inherit from him. In an amended complaint, a claim was added in which the circuit court was asked to remove the defendant as personal representative and to appoint the sheriff or some other qualified person to bring a wrongful death action on behalf of the decedent's surviving beneficiaries.

I.

In the circuit court, the McClures argued that their daughter-in-law should be removed as administratrix of the estate because her acts in killing her husband disqualified her. The administratrix successfully argued that such a disqualification procedure had to be initiated before the county commission where the appointment was made, relying on State ex rel. Linger v. County Court of Upshur County, 150 W.Va. 207, 144 S.E.2d 689 (1965). There is no disagreement that under W.Va.Code, 44-1-4 (1923), the appointment of an administratrix is made by the county court, which is now termed county commission. ¹

In Linger, a petition for a writ of prohibition was brought in this Court to prevent the respondent from carrying out his duties as administrator pursuant to an order issued by the county court of Upshur County. The petition contended that the deceased's last residence was in Lewis County; therefore, the county court of Upshur County did not have jurisdiction. In Syllabus Point 2, we recognized the constitutional authority of county courts with regard to probate matters:

"Under Article VIII, Section 24 of the Constitution of this State, county courts have jurisdiction and, as courts of record, are vested with judicial powers in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, and curators, and the settlement of their accounts, and in all matters relating to apprentices." ²

We explained in Linger that where the county court has " 'jurisdiction and power to make such appointments in proper cases, and the propriety of the appointment depends upon facts to be ascertained by such court, its action is conclusively presumed to have been proper in all collateral proceedings.' " 150 W.Va. at 220, 144 S.E.2d at 698, quoting Tomblin v. Peck, 73 W.Va. 336, 340, 80 S.E. 450, 451 (1913). (Citations omitted).

Referring to our earlier case of Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28 (1918), we also pointed out that when an administrator is appointed and "the record of the county [commission] showed such appointment to have been made in the regular way, ... such appointment cannot be attacked collaterally[.]" 150 W.Va. at 218, 144 S.E.2d at 697. We then quoted this statement from Starcher, 81 W.Va. at 595, 95 S.E. at 31, about challenging an administrator's appointment: "It must be attacked in a suit brought for that purpose or by appeal from the order of his appointment[.]" 150 W.Va. at 218, 144 S.E.2d at 697. Linger held that the attempt to challenge the administrator's appointment by prohibition was an impermissible collateral attack.

In this case, the plaintiffs claimed that because of the alleged involvement of the daughter-in-law in their son's murder, she was disqualified from becoming the administratrix of his estate. However, such an attack on the qualification of the administratrix under Linger must be made before the appointing authority and not collaterally in the circuit court. For this reason, we find the circuit court to be correct in rejecting this portion of the plaintiffs' claim.

II.

The plaintiffs also claim that the daughter-in-law is foreclosed from inheriting from her husband's estate, including the proceeds from his life insurance policies, under W.Va.Code, 42-4-2. This statute bars a person who has been convicted of feloniously killing or conspiring to kill another from taking or acquiring any property from the one killed or conspired against. ³ The daughter-in-law argues that W.Va.Code, 42-4-2, requires a conviction before the beneficiary is barred from obtaining life insurance or other benefits. The plaintiffs argue that John Alden Life Insurance Co. v. Doe, 658 F.Supp. 638 (S.D.W.Va.1987), is persuasive authority that a conviction is not necessary to invoke the statutory bar.

In Doe, both the wife and her son were indicted for first-degree murder of Mr. Doe. Before trial, the wife died. The son was convicted of first-degree murder. ⁴ The insurance company filed suit to have its liability under the policy determined. The federal district court relied on our earlier case of Metropolitan Life Insurance Co. v. Hill, 115 W.Va. 515, 177 S.E. 188 (1934), where the question was whether an involuntary manslaughter conviction met the statutory requirement of "feloniously killing another." ⁵ The federal district court concluded that a wife beneficiary could be barred from obtaining life insurance benefits even though she had not been convicted of killing her husband.

This Court in Hill determined that a manslaughter conviction was sufficient, because the statutory term "feloniously killing" was not intended to change the common law, which we set out in Syllabus Point 1:

"Unlawful intentional causation of the death of an insured by the beneficiary named in the insurance policy, whether felonious or not, is the test of the common-law rule barring the beneficiary from the proceeds of the policy." ⁶

In reaching this conclusion, Hill pointed out that the basis of the common law rule was "the fundamental principle of justice that one shall not profit by his own wrong." 115 W.Va. at 518, 177 S.E. at 189. (Emphasis in original). The Court also indicated that the reason for the term "conviction" in the statute was to alter the general rule earlier recognized in Interstate Dry Goods Stores v. Williamson, 91 W.Va. 156, 160, 112 S.E. 301, 303 (1922), that " 'the judgment in a criminal case is not proper evidence in a civil suit to prove the facts on which it is based.' " 115 W.Va. at 519, 177 S.E. at 189.

Finally, in Hill we determined that the statutory purpose for the term "conviction" was to make proof of a judgment of conviction for felonious killing a conclusive bar to the slayer's right to obtain property, but otherwise the common law rule was not changed. ⁷ This reasoning led the district court in Doe to hold that a conviction was not necessary because the common law rule did not require it.

Because there was no conviction as to a felonious killing, the court in Doe required the insurance carrier to demonstrate that the wife had committed an unlawful and intentional killing. Other courts have adopted a similar rule, with which we agree. E.g., Harper v. Prudential Ins. Co. of Am., 233 Kan. 358, 662 P.2d 1264 (1983); Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975); State Mut. Life Assurance Co. of Am. v. Hampton, 696 P.2d 1027 (Okla.1985).

A number of other jurisdictions which have slayer statutes using the term "conviction" have come to the same conclusion as suggested in Hill and adopted by Doe. Typical reasoning is found in the Ohio Supreme Court's opinion in Shrader v. Equitable Life Assurance Society, 20 Ohio St.3d 41, 44, 485 N.E.2d 1031, 1034 (1985):

"All that R.C. 2105.19(A) does or purports to do is to eliminate the necessity to prove that the beneficiary of a policy of life insurance committed such an...