Perry v. Strawbridge

Citation108 S.W. 641,209 Mo. 621
PartiesPERRY v. STRAWBRIDGE et al.
Decision Date26 December 1908
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Petition by Caroline Perry against Mrs. P. W. Strawbridge, Mrs. J. A. Thompson, and others for partition. From the decree, plaintiff and the named defendants appeal. Reversed, and remanded with directions.

The petition is one for the partition of real estate in Jackson county, Mo., formerly owned by Lillie Maud Evans, now deceased. Whilst a petition in partition, it admits that two defendants, Callie Evans and Zora Evans, claim an interest in the property, but avers that they have no interest. Two defendants, Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, file answers, which in averments practically correspond with the petition of the plaintiff and likewise ask for partition. The defendants Callie Evans and Zora Evans by their separate answer each aver that they are the children of George Evans, who was the husband of Lillie Maud Evans, and that the said Lillie Maud Evans died before their father and without children, by which fact their father inherited an undivided one-half interest in the property, which passed to them upon his subsequent death. These defendants prayed the court to ascertain and determine the title. Other defendants merely had undisputed mortgage rights. The case was tried upon the following agreed statement of facts:

"It is hereby agreed by the parties hereto that upon the trial of this cause the following facts shall be taken as true: That on May 26, 1902, one Henry Wollman was the absolute owner in fee simple of the land in the West Kansas Addition, No. 1, in plaintiff's petition described; that on said day Lillie Maud Evans became the owner of said property by virtue of a full warranty deed from the said Henry Wollman; that on June 4, 1902, one James Clark Whittier was the absolute owner in fee simple of the land in Hyde Park, in plaintiff's petition described, and that on said last-named date Lillie Maud Evans became the owner of said property by virtue of a full warranty deed from said James Clark Whittier and wife; that George Evans and the said Lillie Maud Evans were lawfully married on the 12th day of October, 1898; that no child was ever born of said union; that on August 15, 1903, said Lillie Maud Evans was owner of the above-described land by virtue of the facts above set forth, and on said day was the lawful wife of the said George Evans; that on said August 15, 1903, the said Lillie Maud Evans died by the hands of her husband, the said George Evans, and that about three hours thereafter the said George Evans died by his own hand, all in Kansas City, Jackson county, Mo.; that the said Lillie Maud Evans died without any child or other lineal descendant in being capable of inheriting; that at the time last aforesaid the land in Hyde Park, in plaintiff's petition described, was incumbered by a deed of trust given by the said Lillie Maud Evans and her said husband to Benjamin F. Wollman, trustee for Henry Wollman, on September 19, 1902, to secure one principal note for $1,500, due three years after date, and six interest notes for $45 each; that at said time the land in the West Kansas Addition, No. 1, in plaintiff's petition described, was incumbered by a deed of trust given by the said Lillie Maud Evans and her said husband to Benjamin F. Wollman, trustee for Henry Wollman, on June 18, 1902, to secure three principal notes payable ____ years from date, two of said notes being for $1,000 each, and the remaining one for $2,000, together with twelve interest notes for $30 each and six for $60 each.

"It is hereby further agreed that the said Lillie Maud Evans was killed by the said George Evans without lawful provocation or excuse; that the said Lillie Maud Evans left surviving her, as her only next of kin, two sisters, Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, her mother, Caroline Perry, who are the only legal heirs except as to such rights of inheritance, if any, as might under the circumstances aforesaid, or as may be shown on the trial in addition thereto, have accrued to her husband, the said George Evans; that the said George Evans left surviving him, as his sole heirs at law, two children by a former wife, Callie Evans and Zora Lee Evans; that Edie Evans is the legal guardian of the person and estate of the said Zora Lee Evans, a minor."

The court ascertained and decreed title, and ascertained the rights and interests of the mortgagee. This decree vested an undivided one-sixth interest in the plaintiff and an undivided one-sixth interest in each of the defendants Mrs. Strawbridge and Mrs. Thompson. It also vested an undivided one-fourth interest in each of the defendants Callie and Zora Evans. After unsuccessful motion for new trial and in arrest of judgment, the defendants Mrs. Strawbridge and Mrs. Thompson and the plaintiff appeal.

The only question is as to what construction shall be placed upon section 2938, Rev. St. 1899 [Ann. St. 1906, p. 1694], in a case involving the admitted facts herein disclosed.

Reed, Yates, Mastin & Harvey, for appellants. Ben T. Hardin and Clyde Taylor, for respondent.

GRAVES, J. (after stating the facts as above).

This is an exceedingly interesting case. The question for determination, bluntly stated, is, can a husband who murders his wife inherit the one-half part of her estate under section 2938, Rev. St. 1899 [Ann. St. 1906, p. 1694]? To this state it is a new question, and, with few exceptions, a new one in all the states. But few courts of last resort have been called upon to pass upon the question as to what effect the criminal act of a prospective legal heir will have upon his or her rights under positive statutes governing descents and distributions. Of those which have passed upon it, we frankly confess that the holdings of a majority thereof are against the views which we entertain and will hereafter express. We are not satisfied with the reasoning of those cases, and have been unable to reach the conclusion that a mere prospective legal heir, or devisee in a will, can make certain that which was uncertain, by his own felonious act, in the cold-blooded murder of the party from whom he or she expects to inherit. We do not believe that these courts have fully applied and used the canons of statutory construction, which we have the right to use and ought to use to avoid a result so repugnant to common right and common decency. The construction that has been given such statutes bruises and wounds the finer sensibilities of every men. In ...

To continue reading

Request your trial
136 cases
  • In re Recall of Pearsall-Stipek, 68216-0.
    • United States
    • United States State Supreme Court of Washington
    • September 28, 2000
    ......          In re Tyler's Estate, 140 Wash. 679, 689, 250 P. 456, 51 A.L.R. 1088 (1926) (quoting Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641 (1908)). The more customary articulation of this principle is "a statute will not be construed in ......
  • State ex rel. Madden v. Sartorius
    • United States
    • United States State Supreme Court of Missouri
    • July 28, 1942
    ...Co. v. General Excavator Co., 290 U.S. 239, 75 L. Ed. 293; Deweese v. Reinhard, 165 U.S. 386, 41 L. Ed. 757, 17 Sup. Ct. 340; Perry v. Strawbridge, 209 Mo. 621; Re Estate of Wilkins, 211 N.W. 652, 51 A.L.R. 1106; Horton v. Little, 188 Ala. 640, 65 So. 951; Kinner v. Lake Shore & M.S. Ry. Co......
  • State v. Thomas, 38550.
    • United States
    • United States State Supreme Court of Missouri
    • October 4, 1943
    ......661, 666. . 7. 25 R.C.L., sec. 279, p. 1053; 59 C.J., sec. 617, p. 1039; State v. Wolfner, 318 Mo. 1068, 1076, 2 S.W. (2d) 589, 592(3); Perry v. Strawbridge, 209 Mo. 621, 637, 108 S.W. 641, 645(4), 123 Am. St. Rep. 510, 16 L.R.A. (N.S.) 244, 14 Ann. Cas. 92. . 8. 1 Coke's Littleton (Butler ......
  • Kansas City v. Terminal Railway Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 21, 1930
    ...apply to a viaduct across the defendant's team-tracks and freight house at Oak Street. State ex rel. v. Harter, 188 Mo. 516; Perry v. Strawbridge, 209 Mo. 621; Strottman v. Railroad, 211 Mo. 227; Otto v. Young, 227 Mo. 193; Sconce v. Surmeyer Co., 258 Mo. 616; People ex rel. Railroad v. Pub......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT