Ward v. Ward

• Decision Date: 08 January 1940
• Citation: 6 S.E.2d 664
• Parties: WARD. v. WARD et al.
• Court: Virginia Supreme Court

6 S.E.2d 664

WARD.

v.WARD et al.

Supreme Court of Appeals of Virginia.

Jan. 8, 1940.

Appeal from Circuit Court, Orange County; A. T. Browning, Judge.

Suit by Grace A. Ward against Sarah J. Ward and another to recover the estate of Thomas C. Ward. From a judgment for plaintiff, defendants appeal.

Reversed and rendered.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Nottingham & Nottingham and Sarah B. Carter, all of Orange, for appellants.

DeJarnette & DeJarnette, of Orange, for appellee.

GREGORY, Justice.

On April 13, 1935, Sarah J. Ward, the appellant, shot and killed her husband, Thomas C. Ward. She was indicted for the homicide, tried and acquitted by a jury on her plea of self-defense. Under Code § 5273, she is the sole distributee of Thomas C. Ward, there being no children of the marriage.

The estate of the decedent was committed to The Citizens National Bank of Orange for settlement and it has $973.87 which was paid to it by certain insurance companies which had policies on Ward's life. Two-thirds of the insurance was payable to the wife, the appellant, and the remaining one-third was payable to his estate.

Grace A. Ward, the mother of the deceased and now the appellee, instituted a suit against the widow, Sarah J. Ward, and the administrator, alleging that Sarah unlawfully killed her husband to obtain his estate and thereby forfeited any interest she had in the estate in the hands of the administrator (see Code § 5274), and that she (Grace A. Ward), being the next of kin, is entitled to the entire estate.

The cause was heard ore tenus by the court, which decreed that the killing was not in self-defense, and not justifiable or excusable, but was unlawful, and that "Sarah J. Ward thereby forfeited all her right and interest in and to the insurance money in the hands of the said administrator." The administrator was directed to pay the money over to the mother, Grace Ward.

Under Code § 5273, the widow Sarah Ward is entitled, as the sole distributee, to the entire estate unless she has forfeited her right under Code § 5274, which provides: "No person shall acquire by descent or distribution, or by will, any interest in the estate of another whom he has killed in order to obtain such interest."

The material allegation in the bill of complaint is that Sarah Ward killed her husband in order to obtain his estate. There must be proof sustaining that allega-tion, of the character generally required to sustain the charge of fraud.

If Sarah killed her husband to obtain his estate, Code § 5274 would prevent the fulfilment of her purpose.

The evidence discloses that Thomas Ward, when drinking, was unreasonable, violent, wild, and uncontrollable. On account of drink, Sarah had instituted a suit for divorce against him just a few months before the tragedy, but on the advice of Mr. Carter, for whom both parties worked, the divorce suit was abandoned. It was agreed that the wages of Thomas would be paid to Sarah in order to prevent his use of them for drink. They were buying a home, the title to which was in the name of Sarah. One-third of the paid purchase price was paid by Thomas while Sarah had paid two-thirds of it.

On the night of the shooting Thomas had been drinking. Alex Jones and his wife lived with Thomas and Sarah. Jones was a brother-in-law of Thomas. Thomas requested Sarah to cook some fish. She refused and he attempted to strike her, but was restrained by Jones. This was about 11 P. M. Jones threw Thomas on the bed and held him. Sarah realized that there would be trouble, and went to get Mr. Carter, who had helped them in their domestic difficulties on prior occasions. He came to the house and after seeing the belligerent attitude of Thomas he advised Sarah to spend the night with her sister-in-law, which she agreed to do. At this time Jones was holding Thomas and trying to quiet him. Sarah went into the room to get a few things before going and as she did so Thomas knocked the shade off the lighted oil lamp which Sarah held. She then got her things, taking a pistol from under the mattress. It belonged...