Perry v. Strawbridge

• Decision Date: 26 February 1908
• Citation: 108 S.W. 641,209 Mo. 621
• Parties: CAROLINE PERRY, Appellant, v. MRS. P. W. STRAWBRIDGE and Mrs. J. A. THOMPSON, Appellants, and CALLIE EVANS et al., Respondents
• Court: Missouri Supreme Court

108 S.W. 641

209 Mo. 621

CAROLINE PERRY, Appellant, v. MRS. P. W. STRAWBRIDGE and Mrs. J. A. THOMPSON, Appellants, and CALLIE EVANS et al., Respondents

Supreme Court of Missouri, First Division

February 26, 1908

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Reversed and remanded (with directions).

Reed Yates, Mastin & Harvey for appellants.

(1) Section 2938, Revised Statutes 1899, was enacted as a companion statute to section 2939, Revised Statutes 1899, and the same rules of legal construction apply to both. Under section 2939 the wife takes in lieu of dower. Under section 2938 the husband takes in lieu of curtesy. Von Arb v Thomas, 163 Mo. 33; Gilroy v. Brady, 195 Mo 209; Spurlock v. Burnett, 183 Mo. 501; Matney v. Graham, 50 Mo. 559; Wigley v. Beauchamp, 51 Mo. 544; Hamilton v. O'Neil, 9 Mo. 11; Jarboe v. Hey, 122 Mo. 354; Payne v. Payne, 119 Mo. 174; Westerman v. S. L. K. of P., 196 Mo. 714. (2) A husband cannot take under section 2938 property of the wife whose death was occasioned by the criminal and felonious act of the husband himself. Wharton on Homicide (3 Ed.), p. 1064, sec. 665; Cleaver v. Life Asso., 1 Q. B. 147; Lundy v. Lundy, 24 Can. Sc. 650; Box v. Lanier, 112 Tenn. 393; Mutual Life Ins. Co. v. Armstrong 117 U.S. 591; Schreiner v. High Ct. C. O. of F., 35 Ill.App. 576; Schmidt v. Northern Life Asso., 112 Iowa 41; Riggs v. Palmer, 115 N.Y. 506, 5 L. R. A. 340; Shellenberger v. Ransom, 31 Neb. 61, 10 L. R. A. 810; McKinnon v. Lundy, 24 Ont. Rep. 132. (3) Statutes are to be read and construed in the light of the common law and with reference to its cognate principles. Johnson v. Fluetsch, 176 Mo. 452; Brown v. Dressler, 125 Mo. 589; State v. Clinton, 67 Mo. 380; Judson v. Smith, 104 Mo. 61; Rozzelle v. Harmon, 103 Mo. 339; Westerman v. K. of P., 196 Mo. 714. (4) Sections 2938 and 2939 are to be construed as one law, and as reciprocal statutes affecting the estates of husband and wife respectively in the same manner. Gilroy v. Brady, 195 Mo. 209; Spurlock v. Burnett, 183 Mo. 501; Waters v. Herboth, 178 Mo. 166. (5) Section 2938 of the statutes must be construed in accordance with the following settled rules: (a) Statutes are to be read and construed in the light of common law and with reference to its cognate principles. Among these principles is the maxim "No man can take advantage of his own wrong." (b) Statutes in derogation of the common law are to receive such construction as not to allow them to infringe upon the rules or principles of the common law to any greater extent than is plainly expressed. (c) Statutes should always be construed so as to give effect to the intention of the lawmakers; to ascertain this intention the court is not confined to the language of the act but should consider the evil it was designed to remedy, and it is competent for the court to declare that a thing which may be within the letter of the statute is not governed by the statute. The reason of the law should prevail over its letter. (d) If a literal interpretation of the statute will distort it from its true purpose, or lead to unjust, oppressive or absurd results, the presumption is that the Legislature intended an exception to its language, and this is true where there is neither obscurity or anything equivocal in the language of the law itself. 1 Kent's Com., p. 464; Burt v. Ins. Co., 187 U.S. 362; Ins. Co. v. Armstrong, 117 U.S. 599; State v. Clinton, 67 Mo. 390; Judson v. Smith, 104 Mo. 61; Westerman v. K. of P., 196 Mo. 670; Ross v. Railroad, 111 Mo. 25; Venable v. Railroad, 112 Mo. 103; Chouteau v. Railroad, 112 Mo. 375; Bank v. Haywood, 62 Mo.App. 550; State ex rel. v. Railroad, 105 Mo.App. 207; Townsend v. Hawkins, 45 Mo. 288; Gupton v. Gupton, 47 Mo. 46; Sharkey v. McDermott, 91 Mo. 652; Nowack v. Berger, 133 Mo. 42; Church of the Holy Trinity v. U.S. 143 U.S. 457; Lau Ow Bew v. U.S. 144 U.S. 47; Rodgers v. U.S. 152 F. 346; Sams v. Sams, 85 Ky. 396; Henry v. Tillson, 17 Vt. 486; Reygate v. Wardsboro, 30 Vt. 446; Ingraham v. Speed, 30 Miss. 410.

Ben T. Hardin and Clyde Taylor for respondents.

(1) The right of the widower to take under section 2938 does not depend on the right of curtesy. Secs. 2938, 2941, R. S. 1899; Ferguson's Estate v. Gentry, 104 S.W. 108. (2) The court cannot write an exception into the plain words of section 2938, on the ground of public policy. The statute itself is public policy. Moorshead v. Railroad, 203 Mo. 121; Owens v. Owens, 100 N.C. 24; Deem v. Miliken, 53 Ohio St. 688; Shellenberger v. Ransom, 41 Neb. 631; Carpenters' Appeal, 170 Pa. St. 203; In re Johnson Estate, 29 Pa.Super. Ct. 255; McAllister v. Fair, 72 Kan. 533; Kuhn v. Kuhn, 125 Ia. 449.

Barnett & Barnett and Bruce Barnett also for respondents.

(1) Under section 2938 the husband inherits onehalf of his wife's estate where she dies without children even though the estate she left was one in which he had no interest as a tenant by the curtesy. The estate which the husband takes under this section is not an incident or dependent upon an estate by curtesy. The statute in question absolutely provides that if the wife dies without children or other descendants, the husband shall be entitled to one-half of her estate. Gilroy v. Brady, 195 Mo. 208; Obrien v. Ash, 169 Mo. 288; Waters v. Herboth, 178 Mo. 169; Richter v. Bohnsack, 144 Mo. 516; Spurlock v. Burnett, 183 Mo. 528. (2) Whatever the rule may have been at common law, under our statute and Constitution and under similar statutes and Constitutions in this country, the fact that the husband took the life of his wife does not change the statutory devolution of the wife's property and does not operate as a forfeiture of his inheritance. The statute establishes the rule of descent and distribution which is not affected by the criminal act of the heir or distributee. 21 Am. & Eng. Ency. Law (2 Ed.), 238 and 239; Shellenberger v. Ransom, 41 Neb. 631, 59 Neb. 935; Deem v. Millikin, 6 Ohio Circt. Ct. 357, affirmed 53 Ohio St. 668; Carpenter Estate, 170 Pa. St. 203; Owens v. Owens, 100 N. Car. 240; In re Johnson Estate, 29 Pa.Super. Ct. 225; In re Kuhn's Estate (Iowa), 101 N.W. 151; McAllister v. Fuir, 72 Kan. 533; King v. Ex'r of King, 64 Mo.App. 301. The authorities cited by appellant are not in point, most of the cases relied on being insurance cases or other cases, where plaintiff's cause of action is based upon the fraudulent abuse of contract right, and such cases have no analogy to a case in which the law itself casts the descent. Carpenter Estate, 170 Pa. St. 203. (3) But if we had a statute in this State forfeiting the inheritance of a homicide, should he take the life of the person from whom he otherwise would inherit, such statute would be unconstitutional. It is provided in our Constitution, "That no person can be attainted of treason or felony by the General Assembly; that no conviction can work corruption of blood or forfeiture of estate." Sec. 13, art. 2, Constitution of Missouri; Carpenter's Estate, 170 Pa. St. 203; Deem v. Millikin, 6 Ohio Circt. Ct. 357, affirmed 53 Ohio St. 668; Owens v. Owens, 100 N. Car. 240; McAllister v. Fair, 84 P. 113.

OPINION

GRAVES, J.

The petition is one for the partition of real estate in Jackson county, Missouri, 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 26th, 1902, one Henry Wollman was the absolute owner in fee simple of the land in the West Kansas Addition number one, 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 4th, 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 Lilly 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 Lilly 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 Lilly Maud Evans was the 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 Lilly Maud Evans died by the hand 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, Missouri; that the said Lilly 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 encumbered by a deed of trust given by the said Lilly Maud...