Perry v. Strawbridge

• Decision Date: 26 December 1908
• Citation: 108 S.W. 641,209 Mo. 621
• Parties: PERRY v. STRAWBRIDGE et al.
• Court: Missouri Supreme Court

108 S.W. 641

209 Mo. 621

PERRY v.STRAWBRIDGE et al.

Supreme Court of Missouri, Division No. 1.

December 26, 1908.

1. APPEAL — ASSIGNMENT OF ERRORS — SUFFICIENCY — SUPREME COURT RULE NO. 15.

The mere failure to furnish a separate assignment of errors in the brief is not a noncompliance with Supreme Court rule 15 (73 S. W. vi), requiring appellant's brief to distinctly and separately allege the errors relied upon.

2. DESCENT AND DISTRIBUTION — SURVIVING HUSBAND — STATUTORY PROVISIONS.

In order that a husband may inherit under Rev. St. 1899, § 2938 [Ann. St. 1906, p. 1694], providing that when a wife shall die without any child or other descendants in being, capable of inheriting, her widower shall be entitled to one-half of the real and personal estate of the wife at her death, absolutely, etc., he need not be entitled to curtesy, but the express purpose of the section was to make provision for a husband in the event that he was not entitled to such an estate.

3. SAME — CONSTRUCTION OF STATUTES — COMMON LAW.

The laws of descent and distribution are based upon the common law, adopted in Missouri by Act Jan. 18, 1816, Rev. St. 1899, § 4151 [Ann. St. 1906, p. 2250], and which remains the law of the state, except where repealed, changed, or modified by statute, and hence the statutes of descent and distribution and the live portion of the common law constitute one system of laws upon that subject, and the statutory law must be construed with reference to the common law.

4. STATUTES — CONSTRUCTION — CONSTRUCTION IN LIGHT OF COMMON LAW.

Statutes should be construed in reference to the principles of the common law.

5. SAME — STATUTES IN DEROGATION OF THE COMMON LAW.

A statute in derogation of the common law is to be strictly construed, especially where it is in derogation of common right and common decency as well.

6. SAME — SPIRIT AND REASON OF LAW.

Though the doctrine of equitable construction of statutes is no longer recognized, the courts may enlarge or restrain the letter of a statute according to the true intent of the Legislature, so that the reason of the law may prevail over its letter, and general terms may be so limited in their application as not to lead to injustice, oppression, or an absurd consequence; the presumption being that the Legislature intended no such anomalous results.

7. DESCENT AND DISTRIBUTION — STATUTES — "WIDOWER."

Rev. St. 1899, § 2938 [Ann. St. 1906, p. 1694], provides that, when a wife shall die without any child or other descendants in being capable of inheriting, her "widower" shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, etc. Held, that the term "widower" means one who has been reduced to that condition by the ordinary and usual vicissitudes of life, and not one who, by felonious act, has himself created that condition, and hence where a husband murdered his wife, and three hours afterward killed himself, he did not upon his wife's death acquire under the section any estate in her property to which his heirs could succeed upon his death.

8. FORFEITURES — CONSTITUTIONAL PROVISIONS — FORFEITURE OF ESTATES.

The section as construed does not violate Const. art. 2, § 13 [Ann. St. 1906, p. 135], providing that no conviction can work corruption of blood or forfeiture of estate, since it does not forfeit an estate which a widower has, but merely prevents him from acquiring property in an unauthorized and unlawful way.

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 defendantsCallie 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 ...