Smith v. Greenburg

• Decision Date: 23 January 1950
• Docket Number: No. 16259,16259
• Parties: SMITH v. GREENBURG.
• Court: Colorado Supreme Court

Page 514

218 P.2d 514

121 Colo. 417

SMITH v. GREENBURG.

No. 16259.

Supreme Court of Colorado, en Banc.

Jan. 23, 1950.

Munson & Kreager, Sterling for plaintiff in error.

Raymond M. Sandhouse, Francis L. Shallenberger, Earl A. Wolvington, Sterling, for defendant in error.

JACKSON, Justice.

This is a contest between the administrator of a husband's estate and the administratrix of the estates of his wife and their adopted daughter. It began when the administrator of the husband's estate, without seeking determination of heirship in the county court, brought this proceeding directly in the district court seeking a declaration of rights under section 81, article 10, chapter 93, '35 C.S.A. See also, Rule 57, R.C.P., Colorado. The administrator of the husband's estate, having suffered adverse judgment on some of the points involved, comes here seeking review of those points as will be hereinafter noted.

The deaths of both husband and wife, and also that of their adopted daughter, appear to have occurred early in the morning of August 23, 1946, on the premises of the Milford home in Sterling, Colorado. The body of Mrs. Milford was found lying on a bed in her room with a six inch cut in her neck which had severed the jugular vein and the common carotid artery. The body of the adopted daughter, Lois Ruth, age fifteen, was found on the floor in her bedroom, and showed a cut on the left side of the neck. The husband, Charles D. Milford, was found dead from monoxide poisoning in the garage. His pajama-clad body was in a sitting position behind the steering wheel of his car. A small axe or large hatchet was found in the bathroom of the home.

In the district court trial, defendant asked for a jury to determine the order of deaths. After listening to the conflicting testimony of numerous witnesses, none of whom could speak from personal knowledge of the situation and the majority of whom were doctors, the jury, in answer to the three interrogatories addressed to them, found that Ethyl V. Milford died first, Lois Ruth Milford died subsequent to her mother, and that death came to Charles D. Milford after the deaths of the other two.

Opposing counsel entered into the following stipulation:

'To shorten the taking of evidence in this case, it is hereby stipulated between the parties that Charles D. Milford, and his wife, Ethyl Vinnie Milford, and their adopted daughter, Lois Ruth Milford, were living and residing together in Sterling, Colorado; and that on August 23, 1946, Ethyl Vinnie Milford, the wife, came to her death by reason of wounds inflicted upon her by Charles D. Milford:

'And that the adopted daughter, Lois Ruth Milford, came to her death on or about the 23rd day of August, 1946, by reason of wounds inflicted upon her by Charles D. Milford:

'And that Charles D. Milford, on or about the 23rd day of August, 1946, came to his death by carbon monoxide poison inflicted upon himself with suicidal intent.

'It is further stipulated that there was no prosecution, or conviction, of the said Charles D. Milford by reason of the matters hereinabove stipulated.

'Dated this 5th day of May, A.D. 1948.'

The finding of the coroner at the inquest does not appear in the record, but we assume from the briefs that the local peace authorities treated this case, as opposing counsel have done in their stipulation, as one of two murders and a suicide--the two murders having been committed by the suicide.

Property of an approximate value of $30,000 is involved. The trial court made findings and entered judgment respecting the various types of property. The specifications of error will be discussed under the various types of property involved.

Insurance Policies.

Two fraternal insurance policies, totaling $1,500, insured the life of Ethyl V. Milford in favor of Charles D. Milford as beneficiary. The adopted daughter, Lois Ruth, was insured by a New York Life Insurance Company policy in the amount of $1,000, the beneficiaries being Charles D. Milford and Ethyl V. Milford, share and share alike or to the survivor, and by a fraternal insurance policy of $800 which named Ethyl V. Milford as beneficiary. On the basis of Charles D. Milford having caused the deaths of Ethyl V. Milford and Lois Ruth Milford, the trial court ordered that the administrator of his estate was barred from claiming any benefits under the above mentioned policies; that the proceeds of the policies insuring the life of Ethyl V. Milford belonged to her estate, and the policies insuring the life of Lois Ruth Milford belonged to her estate.

Counsel for the administrator of the husband's estate concede that this is a proper disposition of the proceeds of the insurance policies. Their statement reads: 'We believe the law to be fairly well settled that where the beneficiary named in a life insurance policy causes the death of the named insured, he is barred from taking any of the proceeds. The same rule is likewise applicable in the case of a devisee or beneficiary causing the death of a testator.'

Both parties being agreed on the trial court's resolution of this phase of the case, its judgment affecting the proceeds of life insurance policies involved herein is hereby approved. Property Held In Tenancy In Common.

The home property in Sterling was held by Mr. and Mrs. Milford, as tenants in common. Prior to their deaths they entered into a contract for the sale of the property and a balance of $5,921.84 was paid after their deaths. The trial court found, in respect to the proceeds from the Sterling home that neither the said Charles D. Milford, nor his personal representatives, nor his heirs, acquired any further or greater interest in the funds derived from the sale of said property by reason of the death of Ethyl V. Milford.

Section 1, chapter 176, '35 C.S.A., being our statute of descent and distribution, reads as follows:

'Whenever any person having title to any real estate or property having the nature or legal character of real estate, or personal estate, undisposed of or not otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary to his kindred, male and female, * * * and in the following course and manner, namely: If such intestate leave a husband or wife and children, or the descendants of children him or her surviving, one-half of such estate shall descend to such surviving husband or wife, and the residue thereof to such surviving children and descendants of children as hereinafter limited; * * *

'Second--If there be no children, nor their descendants, then to his father and mother share and share alike; if there be no father, then to his mother; if ther be no mother, then to the father; if there be no father or mother, then to the brothers and sisters, * * *'

Under this statute the property of Ethyl V. Milford, intestate, which she held as tenant in common and died so seized prior to the deaths of her husband and daughter, descended one-half to her husband and one-half to her adopted daughter. The property of the adopted daughter upon her death then became the property of Charles D. Milford who, by the findings of the jury, survived both his wife and his adopted daughter. The statute originally made no exception concerning the manner of the death of an intestate. Later, however, the legislature passed an act, chapter 195, Session Laws 1923, now appearing as section 12, chapter 176, '35 C.S.A., which provides: 'Hereafter any person convicted of murer in the first degree or second degree as having caused the death of any other person either as principal or accessory, shall not take, either by descent, devise, inheritance or any other manner, any of the estate, real or personal, of deceased.'

The trial court, in its findings and judgment, makes no reference to this section and adopted the following reasoning in support of its position: 'This court has chosen to follow the rule that no one shall be permitted ot profit by his own wrong, and that the law will not allow one to increase his own holdings, or expand his estate, by accomplishing the death of another.'

We reverse the judgment of the trial court in respect to the property held in tenancy in common, because we believe that the legislature already has fixed the standards and rules to be applied in the situation confronting us. We are confirmed in this position by a study of the authorities from other jurisdictions, a summary of which appears in 26 C.J.S., Descent and Distribution, § 47 page 1055: 'According to the majority view, the operation of a statute of descent is not affected by the fact that the death of the intestate was caused by the heir apparent in order to obtain the inheritance at once, and therefore an heir who causes or procures the death of the intestate in order that he may inherit the estate at once is not disqualified from taking in the absence of a statute expressly disqualifying him. There is, however, a strong minority view to the contrary, based on the theory that a person should not profit from his own wrong; and it is said that this view displays a tendency to become the majority view. To meet the difficulties arising in such a case, several states have enacted valid statutes intended to prevent a person who has feloniously caused the death of decedent from inheriting or receiving any part of the estate of decedent; but such a statute must be strictly construed and in some situations is held not applicable. A statute disqualifying one who has been convicted of the murder of deceased does not apply in the absence of such conviction, as where there has been a conviction of manslaughter only, or the person who committed the homicide was insane at the time or committed suicide shortly thereafter. ' Some of the cases that support the italicized portions of this statement include: Holloway v. McCormick, 41 Okl. 1, 136 P. 1111, 50 L.R.A., N.S., 536; United States v. McCarty, 10 Cir., 144 F.2d...