Shellenberger v. Ransom
| Decision Date | 27 June 1894 |
| Docket Number | 3147 |
| Citation | 59 N.W. 935,41 Neb. 631 |
| Parties | JOSEPH LEE SHELLENBERGER v. FRANK T. RANSOM ET AL |
| Court | Nebraska Supreme Court |
REHEARING of case reported in 31 Neb. 61.
AFFIRMED.
M. L Hayward, for plaintiff in error.
John C Watson, Frank T. Ransom, George D. Scofield, and E. F. Warren, contra.
An opinion was filed in this case on the 2d day of January, 1891. Subsequently a rehearing was granted, and thereon renewed arguments were made, and the case was again submitted. No controversy is now made as to the applicability of section 30, chapter 23, Compiled Statutes. This question was finally settled by the opinion already filed, which is found reported in 31 Neb. 61, 47 N.W. 700. The simplification thus accomplished has left but one question for consideration. This arose upon the demurrer, from which fact it is rendered necessary to state as concisely as possible the facts pleaded.
The petition was filed by Frank T. Ransom and John C. Watson, as plaintiffs, against Joseph L. Shellenberger, as defendant. In brief, this petition contained the averments that Emma Shellenberger, the owner of the northeast quarter of section 5, township 7 north, range 14 east of the 6th P. M., died intestate, leaving as her sole heirs at law her husband, Leander Shellenberger, and her two children, Maggie Shellenberger and Joseph L. Shellenberger; that upon her death the said land descended to her husband, Leander Shellenberger, during his life, during which time he was tenant of said land by his right of curtesy, Maggie and Joseph L. being entitled to the remainder after his death; that on April 29, 1886, Maggie Shellenberger died intestate, leaving as her only heir her father, Leander Shellenberger, whereupon Joseph L. Shellenberger and Leander Shellenberger became tenants in common of the aforesaid property; that on May 3, 1886, said Leander Shellenberger and his wife, Miranda Shellenberger, by warranty deed duly conveyed their interest in said real property to plaintiffs, the same being, as alleged, the life estate of Leander and the undivided one-half of the remaining estate; that on the 23d day of July, 1887, said Leander Shellenberger departed this life, whereupon plaintiffs and Joseph L. Shellenberger became the owners of said land as tenants in common. There were other allegations made with the view of demonstrating the necessity of a partition. The prayer was as follows: "The plaintiffs therefore pray for judgment confirming the shares of the parties as above set forth, and for a partition of said real estate according to the respective rights of the parties interested therein; or, if the same cannot be equitably divided, that the premises may be sold and the proceeds thereof divided between the parties according to their respective rights, and for such other relief as equity may require."
The initial averments of the answer were in denial of each and every allegation of the petition except as in said answer the same should be expressly and specifically admitted. Following this denial the answer was in this language: "That on or about the day of , 18 , said Emma Shellenberger died intestate, seized of the premises, leaving as her sole heirs at law the defendant Joseph L. Shellenberger and Maggie Shellenberger, and her then husband, Leander Shellenberger, and upon the death of the said Emma Shellenberger the said land descended to the said Joseph L. Shellenberger and Maggie Shellenberger, her children and sole heirs at law, subject to the life estate of her husband, Leander Shellenberger, during his life, and said Leander became and was the tenant of said land by his right of curtesy, with the remainder after his death to the defendant and Maggie Shellenberger; that on or about the 27th day of April, 1886, the said Leander Shellenberger, willfully, feloniously, and of his deliberate, premeditated malice, did kill and murder his daughter, Maggie Shellenberger, and she then and there died intestate and without issue, leaving her father, Leander Shellenberger, who murdered her for the purpose of possessing himself of her estate and title in fee-simple to the land aforesaid, and said plaintiffs claim that by and through said murder and the death of said Maggie Shellenberger the said Leander Shellenberger became a tenant in common of said premises with the survivor, Joseph L. Shellenberger; that on or about the 1st day of May, 1886, the said Leander Shellenberger was arrested and charged with the murder of said Maggie Shellenberger; that the said complainants herein, well knowing of the facts, and being attorneys at law, undertook the defense of said Shellenberger, and to secure them for their said services the said Leander Shellenberger did, on or about the 3d day of May, 1886, with his wife, Miranda Shellenberger, duly convey to the plaintiffs, by warranty deed duly executed, their interest in said premises, being the estate, as claimed by the complainants, for life of Leander Shellenberger, and one undivided one-half of the remainder; that shortly thereafter the said Leander Shellenberger was indicted and charged with the murder of said Margaret Shellenberger, and such proceedings were had in said cause in the state of Nebraska against Leander Shellenberger, indicted for the murder of his daughter, the said Maggie Shellenberger, that at the November term of the district court, sitting within and for Otoe county, in the year 1886, he was convicted and sentenced for said murder, which sentence and judgment of the court remains unreversed in said court; that afterwards, and on or about the 23d day of July, 1887, the said Leander Shellenberger was * * * hanged, and the defendant herein answering, charges and avers the fact to be that the said plaintiffs in said petition, at the time they took a conveyance of said premises from said Leander Shellenberger and wife, well knew the facts, that the said Leander Shellenberger came to the said lands by the murder of his child, Maggie Shellenberger, and well knew all the proceedings in said court, resulting in his conviction, the judgment and sentence, and this defendant herein answering says, that the said Leander Shellenberger could acquire no estate, interest, or right, or title in and to the lands in controversy by and through his act of the murder of Maggie Shellenberger; and this defendant in further answering says, that the said Leander Shellenberger did willfully, maliciously, and of his premeditated malice kill and murder the said Maggie Shellenberger, * * * for the sole purpose of removing her from this life that he might inherit the lands which descended to her by and through the death of her mother; that the defendant in further answering says, that it is contrary to the law of the land that any should be permitted to come to an estate or an inheritance by their own willful act of murder; and the said defendant further answering says, that the said Leander Shellenberger could take no estate from the said Maggie Shellenberger, whose death he had compassed and produced, and that he took no estate to himself, and conveyed none to the said plaintiffs herein, and the said plaintiffs acquired no right, title, or interest in and to the said estate by and through the death of said Maggie Shellenberger, caused by said Leander Shellenberger as hereinbefore alleged.
To this answer plaintiffs demurred on the ground that it "did not state the facts sufficiently to constitute a defense to the said plaintiffs' cause of action." This demurrer was sustained, and, the defendant having elected to stand on his answer, judgment was rendered for such relief as was prayed in plaintiffs' petition, and appointing referees to make partition accordingly. These referees reported that partition could not be advantageously made of the property in kind, whereupon it was ordered sold, and that the proceeds of the sale should be divided between the parties plaintiffs of one part and the defendant of the other part. The defendant Joseph L. Shellenberger, by his guardian ad litem, as plaintiff in error, then brought the case to this court for a review of the ruling on the aforesaid demurrer and the judgment which logically followed it.
In the answer it was alleged, as will be noted by reference to the quotation just made, that plaintiffs, well knowing the facts and to secure payment of their fees as attorneys at law in the defense of said Leander Shellenberger, received the conveyance by virtue of which they claim to be vested with the title to one-half of the property in question. This averment, admitted as it is by the demurrer, does away with the argument attempted as respecting the rights of bona fide purchasers. Under the circumstances charged, and admitted to be true for the purposes of the demurrer, the defendants in error are vested with no higher or better rights than could be asserted by Leander Shellenberger in his own behalf. The naked question presented is, whether or not the murder of an intestate by one to whom ordinarily as heir the property would have descended formed an exception to the...
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