Shellenberger v. Ransom

• Decision Date: 02 January 1891
• Citation: 31 Neb. 61,47 N.W. 700
• Parties: SHELLENBERGER v. RANSOM ET AL.
• Court: Nebraska Supreme Court

31 Neb. 61

47 N.W. 700

SHELLENBERGER

v.RANSOM ET AL.

Supreme Court of Nebraska.

Jan. 2, 1891.

Syllabus by the Court.

1. M. S. and J. L. S., sister and brother, were, as tenants in common, possessed of an estate which had descended to them from their mother. L. S., their father, for the purpose of possessing the share and interest of the said M. S. in her estate, willfully murdered her, and afterwards executed and delivered a deed, for the purpose of conveying the said share and interest to the defendants in error. In an action between the said grantees and J. L. S., for the partition and sale of said estate, held that, by the letter of the law, and leaving out of view the fact of the murder of M. S. by L. S., upon her death, without issue, he would take her estate by inheritance.

2. Where the death of M. S. was caused by L. S., and by willful murder, he did not take her estate, which descended to J. L. S.

Error to district court, Otoe county; CHAPMAN, Judge.O. P. Mason, for plaintiff in error.

John C. Watson, Frank T. Ransom, Geo. D. Scofield, and E. F. Warren, for defendants in error.

COBB, C. J.

The defendants in error, on December 28, 1887, made their complaint in the district court of Otoe county, setting up that, on April 28, 1881, Elijah Gibson, then the owner of the N. E. 1/4 of section 5, township 7 N., of range 14 E. of the sixth P. M., in Otoe county, deeded and conveyed the same, in fee-simple, to Emma Shellenberger, wife of Leander Shellenberger, and the mother of Maggie Shellenberger and Joseph Lee Shellenberger, then infants and minors; that subsequently, and at no long period, the precise date of which does not appear, Emma Shellenberger died, intestate, seised of said premises, leaving as her sole heirs at law her husband and children, and that upon her death the land descended to her husband during his life-time, and that he became the tenant by his right of curtesy with the remainder after his death to his said children; that on April 29, 1886, the said Maggie died, intestate, without issue, leaving as her only heir her father, who, thereupon, with the surviving son and brother, became tenants in common of said premises, subject to the life-estate of the father; that subsequently, on May 3, 1886, Leander Shellenberger and Miranda, his wife, by warranty deed conveyed to the defendants in error their interests in the premises, being the life-estate of Leander, and one undivided half of the remainder; that on July 23, 1887, Leander departed this life, and the defendants in error and Joseph Lee Shellenberger became the owners as tenants in common, each owning one undivided half of said land. The defendants in error further allege that Joseph Lee Shellenberger was a minor over the age of 14 years; that the enjoyment of the premises in common was liable to difficulties and controversies, and was attended with great inconveniences to them; that their co-tenant could not contract, or legally consent to the making of improvements, and for the same reason was incapable of consenting to an amicable partition of the premises, or of selling his interest therein to them, or of purchasing their interest himself. The plaintiff in error was made defendant in the court below, judgment was asked confirming the shares in the premises to the parties set forth, and for partition thereof, or, if the same could not be equitably divided, that it be sold, and the proceeds divided according to the respective rights of the parties. On March 13, 1888, on application of the guardian of the minor defendant, O. P. Mason, Esq., was appointed guardian ad litem for the defendant, with leave to answer, and answered, denying each and every allegation not expressly admitted, but admitting that the premises were conveyed to Emma Shellenberger, as alleged; that she died, intestate, seised of the premises, leaving as her sole heirs her children and her husband, as alleged, to whom the land descended, with life-estate in the husband, who became tenant by curtesy, with remainder after his death to the children, as alleged, and further setting up that, on or about the 27th day of April, 1886, the said Leander Shellenberger, will-fully, 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 the 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 half of the remainder; that snortly 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 taken from the jail of Otoe county, while under the sentence of death, and, by a mob, 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 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 or 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 and deliberate malice, kill and murder the said Maggie Shellenberger, and cut her throat from ear to ear, 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, in 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 that 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 herein before alleged.

The guardian asked a decree that Leander Shellenberger took no estate by the death of the daughter, but that her estate descended to the brother, the minor defendant in this suit. To this answer the plaintiffs' demurrer was sustained and the following decree was rendered: “This cause came on this 24th day of March, 1888, to be heard upon the petition, answer, and demurrer of the plaintiffs, to the answer of the defendant, made by O. P. Mason, as guardian ad litem for the defendant, Joseph L. Shellenberger, and the same is here argued and submitted to the court, and the court, being well advised in the premises, doth sustain said demurrer, to which action of the court the defendant excepts. And the said defendant, by his guardian ad litem, elects to stand on his answer, and the court doth find in favor of the plaintiffs, and that the plaintiffs are the owners in fee-simple of the undivided one-half of the following described lands and premises, to-wit, the N. E. 1/4 of section 5, in township 7 N., range 14 E., of the sixth P. M., according to government survey, the said premises lying and being situated in Otoe county, Neb., and the defendant, Joseph L. Shellenberger, is the owner in fee-simple of the other undivided one-half of said premises, and the plaintiffs are entitled to the partition of said premises. It is therefore considered, adjudged, and decreed by the court that the shares of each of said parties, and their interests, respectively, in said lands be, and the same are hereby, confirmed, and that the partition be made accordingly It is further ordered that Lewis Dum, H. E. Campbell, C. W. Seymore be, and they are hereby, appointed to make the partition of said real estate and premises into the requisite number...