United Trust Co. v. Pyke, 44651

• Decision Date: 25 April 1967
• Docket Number: No. 44651,44651
• Citation: 427 P.2d 67,199 Kan. 1
• Parties: The UNITED TRUST COMPANY, Plaintiff-Appellant, v. Delbert V. PYKE, Administrator, Defendant-Appellee. Delbert V. PYKE, Administrator, Plaintiff-Appellee, v. The UNITED TRUST COMPANY, Defendant-Appellant. In the Matter of the ESTATE of Della PYKE, Deceased. In the Matter of the ESTATE of Issac Lesher PYKE, Deceased.
• Court: Kansas Supreme Court

Page 67

427 P.2d 67

199 Kan. 1

The UNITED TRUST COMPANY, Plaintiff-Appellant, v. Delbert V. PYKE, Administrator, Defendant-Appellee.

Delbert V. PYKE, Administrator, Plaintiff-Appellee, v. The UNITED TRUST COMPANY, Defendant-Appellant.

In the Matter of the ESTATE of Della PYKE, Deceased.

In the Matter of the ESTATE of Issac Lesher PYKE, Deceased.

No. 44651.

Supreme Court of Kansas.

April 25, 1967.

Syllabus by the Court

1. K.S.A. 59-513 modifies the statutes of descent and distribution and bars the wrongdoer from taking by inheritance or otherwise from a person feloniously killed by him, but makes conviction of the offense a condition precedent to the operation of the bar of the statute.

2. The power to declare the rule for the descent of property is vested in the legislature; and where it has provided in plain and peremptory language that a husband shall inherit from his deceased wife, the court is not justified in reading into K.S.A. 59-513 a clause disinheriting the husband because he killed his intestate wife and then committed suicide. (Following McAllister v. Fair, 72 Kan. 533, 84 P. 112; Hogg v. Whitham, 120 Kan. 341, 242 P. 1021.)

3. In order for the beneficiary of a life insurance policy who kills the insured to be barred from receiving the benefits of the policy, the beneficiary must first be convicted of the crime. (Following Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P.2d 22.)

4. The question whether one survives another is to be determined as a matter of fact by evidence, and the rule permitting proof of death and survivorship by circumstantial evidence prevails in this state.

5. The distinctive characteristic of joint tenancy is survivorship, and a surviving joint tenant of real and personal property does not take as a new acquisition under the laws of descent and distribution, but under the conveyance or contracts by which the joint tenancy was created, his estate merely being freed from participation of the other. (Following In re Estate of Foster, 182 Kan. 315, 320 P.2d 855.)

6. K.S.A. 58-501 and 59-2286 providing for the creation and termination of estates in joint tenancy and the requirements necessary for succeeding to such property by right of survivorship, apply to both real and personal property owned by a husband and wife as joint tenants with right of survivorship and not as tenants in common, and contain no restrictions barring the right of the surviving joint tenant to succeed to the property because of criminal conduct on his part.

7. The record in actions involving claims of inheritance, joint tenancy survivorship, and proceeds under life insurance contracts in the estates of two decedents where the husband shot and killed the wife and then committed suicide, is examined, and, as fully set forth in the opinion, it is held: The district court did not err (1) in finding that the husband killed the wife and that the wife predeceased the husband; (2) in refusing to find the husband intentionally and willfully inflicted the fatal injuries upon the wife without excusable justification; (3) in holding that the simultaneous death statute (K.S.A. 58-701 et seq.) was not applicable; (4) in rejecting the plaintiff's theory the court in its equitable power should impress a constructive trust upon the property for the benefit of the wife's heirs, excluding the husband, and (5) in holding the husband was the only heir at law of the deceased wife and that the property in question be surrendered and awarded to the administrator of the husband's estate.

James P. Mize, Salina, argued the cause, and John H. Lehman, Abilene, was with him on the briefs for appellant.

R. H. Royer, Abilene, argued the cause, and Paul H. Royer and James C. Johnson, Abilene, were with him on the briefs for appellee.

FATZER, Justice.

This appeal involves claims of inheritance, joint tenancy survivorship, and proceeds under life insurance contracts in the estates of two decedents, Isaac Pyke and Della Pyke, husband and wife, and to collect damages for the wrongful death of Della by the alleged willful and intentional shooting of her by Isaac, who then committed suicide.

Actions were filed by the administrators of both estates in the probate and district courts of Diskinson County to obtain an award and distribution of the property claimed to belong to the respective decedent's estates. Claims filed in the probate court were transferred to and consolidated with those filed in the district court. (K.S.A. 59-2402a and 59-2402b.) A trial was had by the district court which made findings of fact, and rendered judgment in favor of Delbert V. Pyke, administrator of Isaac's estate. The plaintiff, The United Trust Company, administrator of Della's estate, has appealed.

Isaac and Della Pyke had been married for many years and resided in Abilene; they were childless, and both died intestate. Isaac was 85 years of age and was of sound mind and body. Della was 79 years of age and was of sound mind, but was physically impaired in that she had chronic leukemia (cancer of the blood), and adeno carcinoma (cancer of the throat glands) for which she had been hospitalized prior to her death. She also had a left facial paralysis preventing her closing her eyelid and a blindfold was placed over her eyes when she slept. Her personal physician and two doctors testified they could not say with reasonable medical certainty what effect, if any, her physical impairments had on her normal life expectancy.

Isaac was last seen alive about 7:30 p. m., September 5, 1962, when he walked to the home of a neighbor, Clara Rhodes, and asked her to come by the next morning and drive Della and him to a doctor in Salina. Isaac told Clara 'she needn't knock,' but to 'come right in.' When Clara arrived the following morning, September 6, 1962, at about 7:50 a. m. she called to Isaac. Receiving no answer, she went into the Pyke home and found Isaac's body lying on the kitchen floor. She immediately telephoned the police, and waited outside until they arrived. The police found both Isaac and Della dead at about 8:00 a. m. on September 6, 1962.

On October 4, 1962, Della's estate was admitted to probate, and the plaintiff-appellant, The United Trust Company, was appointed administrator. On June 28, 1963, the plaintiff filed identical petitions in the probate and district courts, alleging that Della survived Isaac and that all the property (their residence, certain jointly and separately owned stocks, bonds and checking accounts, and various life insurance proceeds) should be awarded and distributed to the heirs at law of Della. It was also alleged that in the event the time of death could not be established, all of the property should be awarded and distributed in accordance with the simultaneous death statute. (K.S.A. 58-701 et seq.) A second cause of action alleged that Della's death was the result of the willful acts of Isaac and that his estate was liable to Della's estate in the amount of $25,000.

On October 5, 1962, Isaac's estate was admitted to probate and the defendant-appellee, Delbert V. Pyke, was appointed administrator. The petition for administration alleged that Isaac was unmarried at the time of his death; that his wife, Della, had predeceased him, and that his only surviving heirs at law were his brothers and the nieces and nephews stated therein. On July 3, 1963, Delbert V. Pyke, as administrator of Isaac's estate filed identical petitions in the probate and district courts, repeating the allegation that Isaac had survived the death of Della, and praying that the property in issue be surrendered and awarded to the administrator of Isaac's estate.

It is unnecessary to here state the titles and docket numbers of the cases filed, or those transferred to the district court, except to say they were ordered consolidated and set down for pretrial conference. On June 29, and 30, 1965, the consolidated cases were tried by the district court which rendered judgment that the plaintiff take nothing by its petition and claim alleging two causes of action; that the relief prayed for by Delbert V. Pyke, administrator, be allowed; that Isaac was the only heir at law of Della, and that Della's estate be closed forthwith.

The evidence disclosed the following: When found, both corpses were in rigor mortis, which most often occurs about four hours after death. Death is the complete cessation of all vital functions without possibility of resuscitation. There was no evidence of the time of the shooting of either Isaac or Della, and it could have occurred at any time between approximately 8:00 p. m., September 5, and 3:50 a. m., September 6, or even later. The examining coroner stated in the death certificates that Della had died at about 12:30 a. m., on September 6, and that Isaac had died at about 1:00 a. m., on that date, but later crossed out those times, and testified he had only assumed them.

Pictures of the condition and positions of both bodies were introduced in evidence and included in the record on appeal. Della's body was in her bed at the front of the home. There were five bullet wounds in her head; three in the forehead and two above the left ear. The mattress and bedding were soaked with blood and there were splotches of blood on the wall at the head of the bed. The night-light was on in her bedroom, as were the lights in the kitchen. Isaac's body was lying on the kitchen floor about 35 to 40 feet from Della's bedroom, with one bullet wound in his forehead and there was blood on the floor in and about the area surrounding his head. Lying on the floor next to Isaac's feet, was an H & R .22 caliber revolver with on empty cartridge and eight live cartridges in its cylinder. There was a partially filled box of .22 caliber cartridges on the kitchen table, and approximately there feet from Isaac's, head were five expended .22 caliber cartridges in the kitchen wastebasket.

Autopsy examinations of the head and brain of each corpse...