209 Mo. 621 | Mo. | 1908
The petition is one for the partition of real estate in Jackson county, Missouri, formerly owned by Lillie Maud Evans, now deceased. Whilst a petition in partition, it admits that two defendants, Oallie Evans and Zora Evans, claim an interest in the property, but avers that they have -no interest. Two defendants, Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, file answers, which in averments practically correspond with the petition of the plaintiff and likewise ask for partition. The defendants, Callie Evans and Zora Evans, by their separate answer, each aver that they are the children of George Evans, who was the husband of Lillie Maud Evans, and that the said Lillie Maud Evans died before their father and without children, by which fact their father inherited an undivided one-half interest in the property, which passed to them upon his subsequent death. These defendants prayed the court to ascertain and determine the title. Other defendants merely had undisputed mortgage rights. The case was tried upon the following agreed statement of facts:
“It is hereby agreed by the parties hereto, that upon the trial of this cause the following facts shall be taken as true: That on May 26th, 1902, one Henry Wollman was the absolute owner in fee simple of the land in the West Kansas Addition, number one, in plaintiff’s petition described; that on said day Lillie Maud Evans became the owner of said property by virtue of a full warranty deed from the said Henry Wollman; that on June 4th’ 1902, one James Clark Whittier was the absolute owner in fee simple of the land in Hyde Park in plaintiff’s petition described,*627 and that on said last-named date Lilly Mand Evans became the owner of said property by virtue of a full warranty deed from said James Clark Whittier and wife; that George Evans and the said Lilly- Maud Evans were lawfully married on the 12th day of October, 1898; that no child was ever born of said union; that on August 15, 1903, said Lilly Maud Evans was the owner of the above-described land by virtue of the facts above set forth, and on said day was the lawful wife of the said George Evans; that on said August 15, 1903, the said Lilly Maud Evans died by the hand of her husband, the said George Evans, and that about three hours thereafter the said George Evans died by his own hand, all in Kansas City, Jackson county, Missouri; that the said Lilly Maud Evans died without .any child or other lineal descendant in being capable of inheriting; that at the time last aforesaid, the land in Hyde Park in plaintiff’s petition described, was encumbered by a deed of trust given by the said Lilly Mand Evans and her said husband to Benjamin F. Wollman, trustee for Henry Wollman, on September 19, 1902, to secure one principal note for $1,500', due three years after date, and six interest notes for $45 each; that at said time the land in the West Kansas Addition, number one, in plaintiff’s petition described, was encumbered by a deed of trust given by the said Lilly Maud Evans and her said husband to Benjamin F. Wollman, trustee for Henry Wollman, on June 18, 1902, to secure three principal notes payable-years from date, two of said notes being for $1,000 each, and the remaining one for $2,000', together with twelve interest notes for $30 each and six for $60 each.
“It is hereby further agreed that the said Lilly Maud Evans was' killed by the said George EVans without lawful provocation or excuse; that the said Lilly Maud Evans left surviving her, as her only next of kin, two sisters, Mrs. P. W. Strawbridge and Mrs. J.*628 A. Thompson, and her mother, Caroline Perry, who are the only legal heirs except as to snch rights of inheritance, if any, as might under the circumstances aforesaid, or as may be shown on the trial in addition thereto, have accrued to her husband, the said George Evans; that the said George Evans left surviving him, as his sole heirs at law, two children by a former wife, Callie Evans and Zora Lee Evans; that Bdie Evans is the legal guardian of the person and estate of the said Zora Lee Evans, a minor. ’ ’
The court ascertained and decreed title and ascertained the rights and interests of the mortgagee. This decree vested an undivided one-sixth interest in the plaintiff and an undivided one-sixth interest in each of the defendants, Mrs. Strawbridge and Mrs. Thompson. It also vested an undivided one-fourth interest in each of the defendants, Callie and Zora Evans.
After unsuccessful motions for new trial and in arrest of judgment, the defendants, Mrs. Strawbridge and Mrs. Thompson, and the plaintiff appealed.
The only question is as to.what construction shall be placed upon section 2938, Revised Statutes 1899', in a case involving the admitted facts herein disclosed.
This is an exceedingly interesting case. The question for determination, bluntly stated, is, Can a husband who murders his wife inherit the one-half part of her estate under section 2938, Revised Statutes 1899 ? To this State it is a new question, and, with few exceptions, a new one in all the States. But few courts of last resort have been called upon to pass upon the question as to what effect the criminal act. of a prospective legal heir will have upon his or her rights, under positive statutes governing descents and distributions. Of those which have passed upon it, we frankly confess that the holdings of a majority thereof are against the views which we entertain and will hereafter express. fWe are not satisfied with the reasoning
I. It is suggested in one of the briefs for respondents that the appellants have failed to file a sufficient abstract of the record and we take it for that reason they would have us affirm the judgment. We have examined the record carefully and conclude that it is sufficient to meet the requirements of the law and the rules of the court. It is also urged that there is no separate assignment of errors in the brief as required by Rule 15 of this court and for that reason there is a failure to comply with the rules. The same question was before us and fully discussed in Collier v.
II. It is earnestly pressed by counsel that under section 2938, Revised Statutes 1899, the husband cannot take unless he would have been entitled to curtesy. They contend that sections 2938 and 2939 are companion sections and inasmuch as we have held under the latter that the wife cannot take unless she was entitled to dower, we should hold that the husband cannot take unless he was entitled to curtesy. We have no doubt said that these are companion sections and in a way they are, and we have also' said that the purpose of the Act of 1895, now section 2938, was to equalize the rights of husband and wife in their respective' estates, but it does not follow from this that the husband must have a curtesy estate before he can take under section 2938, supra. Prior to the Act.of 1895, if a childless wife died leaving an estate, however large, the husband not being entitled to curtesy, got nothing. But if a childless husband died prior to this time, the wife got one-half absolutely, subject only to the debts. It is true that by section 2938 she was given a dower interest, but by section 2941 she is given the right to elect as to how she will také. To our mind the Act of 1895 was for the very purpose of making provision for a husband in the event he was not entitled to curtesy. [Ferguson Estate v. Gentry, 206 Mo. 203, and Ferguson v. Gentry, 206 Mo. 189, and cases therein cited.]
This contention of appellants is not sustained.
III. Of our present Statute of Descents and Distributions, the first five sections, 2908' to 2913 inclusive, had their origin in the Territorial Laws of 1807. Sections 2913, 2915, 2916, 2917 and 2918 had their origin in the Act of 1822. Section 2914 had its origin in 1855,
The section of our statute, Revised Statutes 1899, section 4151, which adopted the common law in Missouri, was first enacted January 18, 1816. Of the Act of 1807, adopted prior to the adoption of the common law, Leonard, J., in the case of Cutter v. Waddingham, 22 Mo. l. c. 261, said: ‘ ‘ The Act of 1807 was the first American law of descents introduced here; it superseded the Spanish law of succession, and was a complete scheme, which provided for the whole subject and left nothing to he supplied by any other code. It was the work of men familiar with the common law and strangers to the Roman law, and was no doubt adopted by our Territorial lawgivers from the written laws of the older States of the Union, and not constructed here with any special reference to the existing law of this country.”
These original laws of descents and even our present statutes were borrowed largely from the common law. They are with some modifications expressive of the common law. In other words the general scope of our laws of descent and distribution is along the line of the common law, and this is true in most of the American states.
Bingham in the preface to his work, ‘ * The Laws of Descent,” says: “The laws of descent were an organic part of the feudal system; and, so far as the general principle of succession is involved, have come down to us unchanged. Important alterations have been made in the order and lines of succession. The course of descent has also been subjected to he entirely defeated by the alienation of the ancestor while alive, and by his testamentary alienation to take effect at and
In Missouri we began to modify in favor of the wife by the Act of 1835, when we gave her half when the husband died childless. Later we have the several Married Woman’s Acts giving to her peculiar rights in both personal and real property. The husband up to 1895 had been holding his common law rights, shorn down, by the acts aforesaid, when for the first time, by the Act of 1895 aforesaid, the wife dying childless, he was made an heir to one-half of her estate absolutely. We have in ways changed the lines of descent, both as to the husband and other heirs at law, and have changed the quantum of the estate which descends to each, but with it all, our laws are yet expressive of the common law in the matter of descent and distribution in a large degree.
When we took unto ourselves the common law, as we did in 1816, and in later reiterations of that statute, we took the body of all the common law, which could be made applicable under our constitutions, State and Federal, and such is the law of the State except where repealed, changed or modified by statute.
In the case of Box v. Lanier, 112 Tenn. l. c. 409, the Supreme Court of Tennessee said: “It has been well said that there are certain general and fundamental maxims of the common law which control laws as well as contracts. Among these are: ‘No one shall be permitted to profit by his own fraud, or to take advantage of Ms own wrong, or to found any claim upon Ms
And Earl, J., for the New York Court of last resort, in Riggs v. Palmer, 115 N. Y. l. c. 511, said: “Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.” Farther on in the same opinion he says: ‘ ‘ These maxims without any statute giving them force or operation, frequently control the effect and nullify the language of wills. A will procured by fraud and deception, like any other instrument, may be decreed void and set aside, and so a particular portion of a will may be excluded from probate or held inoperative if induced by the fraud or undue influence of the person in whose favor it is. [Allen v. McPherson, 1 H. L. Cas. 191; Harrison’s Appeal, 48 Conn. 202.] So a will may contain provisions which are immoral, irreligious or against public policy, and they will be held void. ■
“Here there was no certainty that this murderer
“Under the civil law evolved from the general principles of natural law and justice by many generations of jurisconsults, philosophers and statesmen, one cannot take property by inheritance* or will from an ancestor or benefactor whom he has murdered. [Domat, part 2, book 1, tit. 1, par. 3; Code Napoleon, par. 727; Mackeldey’s Roman Law, 530, 550.] In the Civil Code of Lower Canada the provisions on the subject in the Code Napoleon have been substantially copied. But so far as I can find, in no country where the common law prevails had it been deemed important to enact a law to provide for such a case. Our revisers and lawmakers were familiar with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus
These maxims of the common law are expressly made a part of our laws by the statute of this State, first adopted in 1816, as we have hereinabove indicated. They are a part of the law of the State by force of section 4151, Revised Statutes 1899, unless they have been repealed, changed, modified or wiped out by statute law. Have we by statute either expressly or impliedly chang-ed or modified the maxims discussed in the Tennessee and New York cases, supra? Has the common law in this respect been repealed, changed or modified? We think not. If not, they are a part of our law. If not, then this statute must be read in connection therewith, and when so read the father of appellees acquired no interest in the estate in controversy and appellees have none. “Statutes in derogation of the common law are to be strictly construed, unless as in some states there is a statutory provision to the contrary.” [8 Cyc. 376, and cases cited.]
The common-law rule is tersely stated in section 665 of Wharton on Homicide (3 Ed.), thus: “To permit a person who commits a murder, or any person claiming under him, to benefit by his criminal act, would be contrary to public policy. And no devisee can take under the will of a testator whose death has been caused by the criminal and felonious act of the devisee himself. And in applying this rule, no distinction can be made between a death caused by murder and one caused by manslaughter. Nor does the common-law right of succession by descent operate in favor of one who willfully takes the life of his ancestor for the purpose of succeeding to his property rights. And the common-law right of a man to succeed to the
To our mind our Statute of Descents and Distributions is so largely expressive of the common law that we must consider these maxims and the whole body of the applicable common-law doctrines; that we must read them together as parts and parcels of the same system, and when so read there can be but one answer to the query suggested by the facts of this ease.
For these considerations alone we think this case should be reversed, but we take up next a discussion of this statute.
IY. But leaving out of consideration the conclusions above reached, i. e., that our statutes of descents and distributions, and the liv.e parts of the common law, constitute one system of laws in this State upon that subject, and that the statutory law must be construed with reference to that live portion of the common law, and going to this statute itself, how shall we construe it? Must we give a construction abhorrent to reason, or should we give it a construction in harmony with the reason and spirit of the law? Shall we stick in the bark and adhere to the strict letter of the law, or shall we say that whilst the case may fall within the letter of the law, yet it does not fall within the spirit or reason, or within the reasonable legislative intent? The courts in this State and elsewhere have not been remiss in finding rules of construction for statutes in
Statutes should be read in the light of the common law, and this statute should be read in that light. Chancellor Kent, 1 Kent’s Commentaries (14 Ed.), p. 464, says: “Statutes are likewise to be construed in reference to the principles of the common law; for it must not be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction.”
In Black on Interpretation of Laws, page 233, it is said: “No statute enters a field which was before entirely unoccupied. It either affirms, modifies or repeals some portion of the previously existing law. In order, therefore, to form a correct estimate of its scope and effect, it. is necessary to have a thorough understanding of the laws, both common and statutory, which heretofore were applicable to the same subject. Whether the statute affirms the rule of the common law upon the same subject, or whether it supplements it, supersedes it, or displaces it, the legislative enactment must be construed with reference to the common law; for in this way alone is it possible to reach a just appreciation of its purpose and effect. Again, the common law must be allowed to stand unaltered as far as
Our statutes of descents and distributions, as we have seen, both affirm and modify the common law,, but nowhere specifically mention that rule or doctrine of the common law which precluded the murderer from inheriting from his victim. This latter is not so inconsistent with the statute as to call upon ns to say that such portion of the common law, previously existing, was repealed or changed by the Act of 1895.
Our own court adheres to the same rule in Johnson v. Fluetsch, 176 Mo. l. c. 468, where we said: “Statutes are read and construed in the light of the common law. ‘Rules of interpretation and construction are derived from the common law, and since that law.constitutes the foundation and primarily the body and soul of our jurisprudence, every statutory enactment is construed by its light and with reference to its cognate principles. [Sutherland on Stat. Cons., sec. 289.]”
And statutes in derogation of the common law are to be strictly construed. [See Brown v. Dressler, 125 Mo. l. c. 593; State v. Clinton, 67 Mo. 380; Judson v. Smith, 104 Mo. 61; Rozelle v. Harmon, 103 Mo. 339.] And this is especially true where the statute is in derogation of common right and common decency, as well as the common law. The construction contended for by the appellees is one which shocks both common right and common decency, and no court should be inclined to other than a construction which would make the statute comport with reason and the fundamental maxims of the law.
It is true, strictly speaking, that the old idea of equitable construction of statutes is no longer recognized by the courts, but in speaking upon this point Mr. Black in his most excellent treatise entitled Interpretation of Laws, truthfully says: “But nevertheless many
The case of Sams, etc. v. Sams’ Admr., 85- Ky. 396', is one of such cases. The facts were that Leroy Sams was lawfully married to a woman by whom he had four children. During the life of the first wife he was hav: ing illicit relations with another woman by whom he had two children. These were bom one eight and the other ten years prior to the death of his wife. Upon the death of his wife he married the mother of these two children, who also had five others which had been born out of wedlock. Sams recognized these two as his children. In that State the statute provided, “If a man having had a child by a woman shall afterwards marry her such child, or its descendants, if recognized by him before or after marriage, shall be deemed- legitimate.” Counsel in that case contended as do able counsel in this case. They said the statute makes no exception and the courts are powerless to make it, but' Pryor, C. J., followed that rule of statutory construe-.
“It is insisted by counsel for the appellants that the meaning and intention of the statute is so plain that but one interpretation can be given it; and although the children were begotten by the intestate when he was the lawful husband of another, his adulterous practices with an unchaste woman, and unfaithfulness to his own wife and children, cannot be considered in determining the rights of those who were not participants in the wrong, and whose rights the statute was enacted to protect.
“If the case before us, or that class of cases where the husband has violated his marriage vows, and become the father of children by an adulterous sexual connection with another woman during the marital relation, had been the subject of legislative thought, it can scarcely be supposed that any law would have been enacted by which the children of the adulterous intercourse would be made legitimate, that they might inherit with the children of the lawful wife equal parts of his estate. Such a statute, if so construed, would only invite the husband to desert his wife, and the woman of easy virtue to encourage the violation of his marriage vows, that she might some day become his lawful wife and her children the rightful heirs of his estate. The motive to supplant the love of a true woman by the lewd practices of degraded women would be found in such a statute, and the law, instead of securing to the innocent offspring an interest in the estate of the father, and encouraging the latter to make reparation for the wrong committed by marrying the mother, would invite the commission of great moral wrong, and hold out an inducement to the guilty parties to remove those who stood in the way of legitimizing their children by the consummation of the contract of marriage. . . . It is a well-settled rule of con*641 struction, that the letter of a statute will not be followed when it leads to an absurd conclusion; but, on the contrary, the reason for the enactment must, enter into its interpretation, so as to determine what was intended to be accomplished by it.”
If the courts can invoke this rule of construction to disparage and condemn adultery and its attendant evils, can’t we invoke it to prevent the legal creation of an heir, and an estate for such heir, by murderous hands? Our statute is no more explicit in terms than the Kentucky statute. The language of the one is as broad as the other.
The Supreme Court of the United States has likewise dealt with the same rule of statutory construction in the case of Church of the Holy Trinity v. United States, 143 U. S. 457. This case construes the Federal Act of February 26th, 1885, which was, “To prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States,” etc. The first section reads:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act it shall be unlawful, for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners into the United States, its Territories, or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its Territories, or the District of Columbia. ”
Plaintiff in error was a corporation and had made
“It must be conceded that the act of the corporation is. within the letter of this section, for the relation of rector to his church is one of service, and implies labor on one side with compensation on the other. Not only are the general words labor and service both used, but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added ‘of any kind;’ and, further, as noticed by the circuit judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or the absurd results which follow from giving such broad meaning to the words..*643 makes it unreasonable to believe that the legislator intended to include tbe particular act.”
To like effect are Lau Ow Bew v. U. S., 144 U. S. 47; Rodgers v. U. S., 152 Fed. 346; Henry v. Tilson, 17 Vt. 486; Ryegate v. Wardsboro, 30 Vt. 746; Ingraham v. Speed, 30 Miss. 410; Jackson v. Collins, 3 Cowen 89; People v. Utica Ins. Co., 15 Johns. 358; Ex parte Ellis, 11 Cal. 222; Osgood v. Breed, 12 Mass. 525; U. S. v. Kirby, 74 U. S. 482; Hanger v. Abbott, 73 U. S. 532; Braun v. Sauerwein, 77 U. S. 218. See, also, the numerous cases, both ancient and recent, discussed in Black on Interpretation of Laws, under his rule No. 29, pages 48 to 55, inclusive.
Nor has this rule of statutory construction failed of ample recognition by the courts of this State. Our Dower statute, section 2933, Revised Statutes 1899, provides that the widow has her dower in all lands of which her husband was seized during the' marriage unless she has relinquished such dower “in the manner prescribed by law.” This manner was by deed. Yet we have held under this statute that a deed to a railroad right of way signed by the husband alone, or condemnation proceedings against the husband alone, would prevent an action for dower by the widow. [Venable v. Railroad, 112 Mo. 103; Chouteau v. Railroad, 122 Mo. 375.] This statute does not say, “endowed in all lands except such as has been conveyed or condemned for public purposes.” Yet we have so construed the statute.
Our Statute of Frauds, section 3418, Revised Statutes 1899, reads: “No action shall be brought. . . . upon any contract made for the sale of lands .... or any lease thereof .... unless the agreement upon which the action shall be brought .... sbjn be in writing and signed by the party to be charged therewith.” Yet, under the maxims of the common law, how many cases have we exempted from the strict
Again, in the very recent case of Keeney v. McVoy, 206 Mo. 42, a case with many more obstacles and difficulties, the identical rule of construction which we have announced was announced by this court In Banc, which decision puts the present case at rest — peacefully, justly and righteously. The question there was the right of the widow to elect to take a child’s part, Mrs. McYoy was the widow of Brice McYoy. At the death of Brice McYoy he had no child living, and of course his widow had no “child or children by such husband living.” They did have a grandchild, the child of a deceased daughter, which daughter had departed life prior to the death of Brice McYoy. The statute we were then called upon to construe reads: “When the husband shall die, leaving a child or children or other descendants, the widow, if she has a child or children by such husband living, may, in lieu of dower of the one-third part of all lands whereof her husband died or shall die seized of an estate of inheritance, to hold and enjoy during her natural life, elect to be endowed absolutely in a share of such lands equal to the share of a child of such deceased husband. The provisions of this section shall be subject to the payment of her husband’s debts.” [Sec. 2944, R. S. 1899.]
after reviewing all the Missouri cases involving constructions of the character we have before us now, as well as many outside cases, concludes an exhaustive and elegant opinion in this language: ‘ ‘ Other cases to like effect might be cited. The Lower Act hut supplements the Descents and Distributions Act. They must be taken and construed together. Oases illuminating the one, throw light on the other, and based on the reasoning aforesaid, and in the light of the foregoing authorities, we have no difficulty or
In Verdin v. St. Louis, 131 Mo. l. c. 163, this court In Banc announced in explicit terms its approval of the rule of construction we have adopted in the case at bar. The language of that case is: “This view is sanctioned by abundant authorities which hold that the letter of a statute may be enlarged or restrained, according to the true intent of the framers of the law. [Whitney v. Whitney, 14 Mass. 92; State ex rel. v. Emerson, 39 Mo. 80; State ex rel. v. King, 44 Mo. 283; Riddick v. Walsh, 15 Mo. 519.] In. such cases, the reason of the law prevails over its letter, and general terms are so limited in their application as not to lead to injustice, oppression, or an absurd consequence, the presumption being indulged that the Legislature intended no such anomalous results. [United States v. Kirby, 7 Wall. 482; People ex rel. v. McRoberts, 62 Ill. 38; Fusz v. Spaunhorst, 67 Mo. 256; Sutherland, Stat. Constr., p. 288.] ”
In fact, the pathway of judicial literature from the earliest period down to the present is literally strewn with cases, which like beacon lights have guided the hand of justice in preventing unjust, unrighteous, absurd, unreasonable and abhorrent results from the use of general words and expressions in statutes. To cite and quote more would be but to become tedious. We have gone thus far on account of the newness of the particular question of this case. Under these authorities we should not and will not hold, that “widower” as used in section 2938, supra, means one who has created a condition by murderous hands and heart. This case is without the statute. “Widower” as there used means one who has been reduced to that condition by the ordinary and usual vicissitudes of life, and not
Y. Nor do we think that this construction violates section 13, article 2 of our Bill of Rights. That section says: '' That no person can be attainted of treason or felony by the General Assembly; that no conviction can work corruption of blood or forfeiture of estate.”
Suppose the Legislature had put in section 2938 the exception which appellees say the court can not read into the section, i. e., “her widower, except he be such by his own felonious act, shall be entitled,” etc., then according to counsel’s present contention the statute would be violative of the Bill of Rights. In other words we are damned if we do and likewise damned if we don’t.
In the case of Box v. Lanier, supra, the court said: “The provision in question is that 'no conviction shall work corruption of blood or forfeiture of estate.’ This provision has no connection whatever with the devolution of property, but it is intended in its last clause to prevent a forfeiture of an estate of a criminal on account of his offense; but we hold that, under the facts found in this record, the surviving husband never acquired an estate in this property, and therefore there was nothing upon which this constitutional provision could operate.”
We concur in these tersely expressed views. This construction of the existing statute, or even an express statute, as they have in Iowa, prohibiting a murderer from inheriting from his victim does not violate our constitutional provision. There is no forfeiture of an estate which he has, but it is simply preventing Mm from acquiring property in an unauthorized and unlawful way, i. e., by murder. It takes nothing from Mm, but simply says you cannot acquire property in this way. Nor does such a statute prevent Ms heirs
As we stated in the outset, our views are not in harmony with a majority of the adjudicated cases. We were convinced of the righteousness of the views expressed by the courts of New York and Tennessee, and the first opinion by Cobb, C. J., in a Nebraska case, which was later decided to the contrary by Ryan, Commissioner. In opposition to these cases are cases from Pennsylvania, Ohio, North Carolina, Iowa and Kansas.
A discussion of the opinions in these cases would serve no good purpose. To our mind the reason is against them, and they have not given full weight to the rule of statutory construction so often and so recently recognized and enforced hy this court. Nor do they give that weight to the maxims of the common law, which in our humble judgment should he given in determining a case involving this particular question.
Prom these views it follows that the judgment herein should he reversed and this cause remanded to the circuit court with directions to enter a judgment and decree vesting the property in dispute in the plaintiff, and the defendants Mrs. P. W. Strawbridge and Mrs. J. A. Thompson, subject to the mortgage -rights of the defendant Wollman, and which said judgment and decree should further adjudge and decree that defendants Callie Evans and Zora Evans have no title or interest in said property. Cause reversed and remanded with the directions aforesaid.