Pritchett v. Henry

• Decision Date: 01 December 1955
• Docket Number: No. 5095,5095
• Parties: Howard PRITCHETT et ux., Appellants, v. Percy B. HENRY, Appellee.
• Court: Texas Court of Appeals

Page 546

287 S.W.2d 546

Howard PRITCHETT et ux., Appellants, v. Percy B. HENRY, Appellee.

No. 5095.

Court of Civil Appeals of Texas, Beaumont.

Dec. 1, 1955.

Harry H. Brochstein, Houston, for appellants.

Aaron Goldfarb, Houston, for appellee.

R. L. MURRAY, Chief Justice.

This is an appeal from a judgment in one of the district courts of Harris County. The appeal was transferred to this court from the Court of Civil Appeals for the First Supreme Judicial District by order of the Supreme Court.

Howard Pritchett and his wife, Clyda Pritchett, the appellants, filed their suit against the appellee, Percy B. Henry, and certain life insurance companies; they alleged that they are the parents of Melba Henry, who had been the wife of appellee Percy B. Henry; that on or about January 8, 1955 Percy B. Henry shot and killed his wife, Melba Henry, unlawfully and illegally killing and murdering her in Houston, Harris County, Texas; they further alleged that on said date of the alleged killing there was in existence the will of Melba Henry and that after her death such will was admitted to probate in the Probate Court of Harris County, Texas, and that said Percy B. Henry is named as beneficiary in said will. They further alleged that at the time of the alleged willful killing of Melba Henry by her husband, Percy B. Henry, there were in existence several policies of life insurance insuring the life of Melba Henry and the said Percy B. Henry was the beneficiary in said life insurance policies. They further alleged that they were the next of kin of the deceased, Melba Henry, after the appellee Percy B. Henry, and prayed the court to forfeit the interests of the appellee Henry in all policies of life insurance by virtue of Article 21.23 of the Insurance Code of Texas, V.A.T.S.

They also prayed the court to declare the will of Melba Henry, deceased, inoperative as to any of the terms thereof which make Percy B. Henry beneficiary and also to declare and impress upon the property passing by inheritance from Melba Henry, deceased, to Percy B. Henry a constructive trust for the benefit of the appellants as the heirs of the said Melba Henry, deceased, other than Percy B. Henry.

They also alleged that the appellee, Percy B. Henry, had been indicted by the Harris County Grand Jury for the murder of his wife, Melba Henry, the daughter of the appellants.

They also alleged an action in tort against Percy B. Henry for the wrongful death of Melba Henry.

The appellee answered by plea in abatement, alleging that the first and third counts of the original petition filed by the appellants failed in their entirety to allege a cause of action upon which judgment might be awarded to appellants, as a matter of law. These two counts related to the causes of action alleged other than the pleading as to the proceeds of the life insurance policies on the life of Melba Henry, deceased.

The trial court, upon a hearing of the pleas in abatement, sustained the contentions of the appellee and dismissed the cause of action of the appellants as to all matters alleged except those involving the proceeds of the life insurance policies. By stipulation between the parties the suit involving the insurance proceeds was severed from the other causes of action pleaded and no appeal is taken from the court's order or judgment in regard to the proceeds of the life insurance policies. The appellants, however, have perfected their appeal from the order of the court sustaining the plea in abatement. In their brief appellants make no point and present no authority concerning the court's action in sustaining the plea in abatement as to their third count, the tort action for wrongful death. The trial court's action in that respect is affirmed.

This appeal squarely presents for the first time, insofar as we have been able to find from the cases reported in Texas, the law question whether in this state a person who willfully and unlawfully kills another may take title to property as an heir or legatee of his victim and retain it free of a constructive trust sought to be impressed upon such property by law for the benefit of the victim's heirs at law other than the killer.

The appellee contends that the question has long been settled in Texas under the holding in the case of Hill v. Noland, Tex.Civ.App., 149 S.W. 288. In that case, by the Texarkana Court of Civil Appeals, in 1912, the court held that our statutes provide that upon dissolution of the marriage relation by death all property belonging to the community estate of the husband and wife shall go to the survivor should there be no children or their descendants; that the article in plain and unambiguous language designates the person to whom the estate shall descend upon death and that there is neither condition nor exception debarring or forfeiting the estate or the right of succession to the wife or husband; that as the rule of inheritance is explicit and imperative, the courts would not be warranted in reading into the statute a clause disinheriting a survivor for the crime of murdering the deceased spouse. The opinion further states that in such facts, that is, where the survivor had murdered the deceased spouse, it is the intestate law alone that casts the estate and right of succession to the wife, and this law is absolute and peremptory. Writ of error was denied by the Supreme Court.

We do not consider this authority as the final expression of our Supreme Court on this question. In Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857, 859, by the Supreme Court, in 1949, the opinion by Justice Garwood referred to the case of Hill v. Noland, supra, and stated, 'in that case, incidentally, the more modern view of imposing a constructive trust upon property inherited by a murderer from his victim, for the benefit of the heirs other than the murderer, was evidently not suggested or considered.' This decision did not involve directly the question under consideration here, but was concerned with the application of the statute which eliminates the interest of the beneficiary in a life insurance policy where the beneficiary willfully brings about the death of the insured. We look upon it, however, as a statement by our Supreme Court that it inclines to the more modern view of imposing a constructive trust upon the property inherited by a murderer from his victim.

The decision in the case of Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, by the Supreme Court, in an opinion by the late Justice Smedley, has fully convinced us that the law in Texas now is in keeping with such a more modern view, and that the law will impress a trust upon the property of Melba Henry, deceased, which passed to Percy B. Henry, either by inheritance or as a beneficiary in her will, if the proof is sufficient to sustain the appellants' allegation that he willfully and unlawfully caused her death.

In Pope v. Garrett, supra, the facts are extraordinary and were such as to present broadly the question of whether or not the law will impress a constructive trust upon property inherited by an heir of a deceased person when such person, by his own...