Assuming, as we must, that the facts alleged are true, the question arises as to whether the wife is barred from inheriting her husband's interest in the community estate, to which she would otherwise be entitled, on the ground that her crime disabled her to take his interest in the property. The devolution of property is regulated by statute. Article 1696 of the Revised Civil Statutes provides that upon dissolution of the marriage relation by death all property belonging to the community estate of the husband and wife shall go to the survivor if there be no children or their descendants. The article in plain and unambiguous language designates the person to whom the estate shall descend eo instanti upon the happening of death, and there is neither condition nor exception debarring or forfeiting the estate or the right of succession to the wife or husband. As the rule of inheritance is explicit and imperative, and the statute contains no hint that the wife is to be excluded on account of crime or misconduct, the courts would not be warranted in reading into the statute a clause disinheriting her for her alleged crime. For a court to ingraft an exception upon the statute would be judicial legislation. The penalties for felonious homicide are prescribed in the criminal statutes. It is conceded that, unless the wife is debarred from her statutory right of succession, the appellants would have no claim or interest in the property. The same question as here is discussed and the view we have taken has support in the following cases, which are in point: McAllister v. Fair, 72 Kan. 533, 84 P. 112,3 L.R.A. (N.S.) 726, 115 Am. St. Rep. 233, 7 Ann.Cas. 973; Carpenter's Estate,170 Pa. 203, 32 A. 637, 29 L.R.A. 145, 50 Am. St. Rep. 765; Shellenberger v. Ransom, 41 Neb. 631, 59 N.W. 935, 25 L.R.A. 564; Owens v. Owens,100 N.C. 240, 6 S.E. 794. The state of Iowa has, it appears, a statute providing that "no person who feloniously takes or causes or procures another so to take the life of another shall inherit from such person or take by devise or legally from him any portion of his estate." Code, § 3386. See Kuhn's Estate, 125 Iowa 449, 101 N.W. 151,2 Ann.Cas. 657. The case of Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641,16 L.R.A. (N.S.) 244, 123 Am. St. Rep. 610, 14 Ann.Cas. 92, is cited by appellants, and it sustains their contention, but it is not in harmony with the weight of authority where the statute itself casts the estate and right of succession, as admitted by that court in the opinion. The other cases relied on by appellants as authorities against the right to inherit because of murder are those involving wills and insurance policies and the like. In such cases there was no statute involved, and the court based its judgment on common law principles entirely. As said in the case of McAllister v. Fair, supra: "There is a manifest difference, however, between private grants, conveyances, and contracts of individuals, and a public act of the Legislature. It might be that a person would not be permitted to avail himself of the benefits of an insurance policy the maturity of which had been accelerated by his felonious act. Many considerations of an equitable nature might affect the operation or enforcement of a grant or contract of a private person which would have no application or bearing on a statute enacted by the Legislature. So far as the descent of property is concerned, the courts are practically unanimous in holding that all the power and responsibility rests with the Legislature. They have spoken with one voice in opposition to the exclusion of an heir from taking an estate, where the statute in plain terms designates him as one entitled to inherit." In the character of cases mentioned it is the agreement and intention of the parties that casts the right, while in the present facts it is the intestate law alone that casts the estate and right of succession to the wife, and this law is absolute and peremptory.
There was no error in sustaining the demurrer, and the judgment is affirmed.