Smith v. Dean

290 S.W.2d 439, 226 Ark. 438, 1956 Ark. LEXIS 463

• Court: Supreme Court of Arkansas
• Decided: May 21, 1956
• Docket: 5-935
• Status: Published

Opinions

Geoege Rose Smith, J.

In 1953 the appellant, Van-teen Dean Smith, was convicted of having murdered her former husband, Harold Dean. Smith v. State, 222 Ark. 650, 262 S. W. 2d 272. Thereafter she filed a petition in the probate court, asking (a) that Dean’s entire estate be vested in her as the surviving tenant by the entirety, and (b) that in the alternative she be allowed the widow’s statutory allowance of $1,000. Ark. Stats. 1947, § 62-2501. This is an appeal from an order denying both claims.

Dean’s estate consists of personal property that was ostensibly owned by him alone. This property was duly inventoried by the administrator, who is a necessary party to a proceeding involving the title. Jenson v. Housley, 207 Ark. 742, 182 S. W. 2d 758. In contending that an estate by the entirety really existed the appellant relies solely on her own testimony to the effect that she and her former husband contributed their respective earnings to the purchase of the property and intended to own it jointly. This testimony clearly relates to transactions with the decedent and was properly objected to as being inadmissible under the dead man’s statute. Ark. Const., Schedule, § 2. There is no other proof to show that the supposed tenancy by the entirety ever existed.

In resisting the claim for statutory allowances the appellees rely on Ark. Stats., § 61-230, which provides that when one spouse kills the other and is convicted of murder the one so convicted shall not be “endowed” in the estate of the decedent. The section in question is part of Act 313 of 1939, and a reading of that act as a whole shows that it was intended to apply only to dower and curtesy, not to the widow’s statutory allowance.

Apart from statute, however, it is a familiar principle of law that one who wrongfully kills another is not permitted to share in the other’s estate, to collect insurance on his life, or otherwise to profit by the crime. Horn v. Cole, 203 Ark. 361, 156 S. W. 2d 787; Rest., Restitution, § 187. That principle would control this case were it not for the fact that the record contains no legal proof that the appellant killed Harold Dean. We cannot take judicial notice of the facts disclosed by the record in the earlier criminal proceeding. Murphy v. Citizens’ Bank of Junction City, 82 Ark. 131, 100 S. W. 894, 11 L. R. A. N. S. 616.

At the trial below the appellees introduced a certified copy of the judgment of conviction, but it is the settled rule in this state that such a judgment is not admissible to prove the facts on which it was based. Horn v. Cole, supra; Washington Nat. Ins. Co. v. Clement, 192 Ark. 371, 91 S. W. 2d 265. We realize that the soundness of this rule is not universally conceded. The arguments for and against it were analyzed in detail by Dean Wigmore, who concluded that the application of the principle should be relaxed in certain “exceptional situations.” Wigmore on Evidence (3d Ed.), § 1671a. Even if the question were one of first impression we would hesitate long before declaring that the present majority view is wrong. Much more is involved than the mere formality of retrying an issue already decided, for even the critics of the rule do not contend that the prior ^ decision should be conclusive. All concede that the opportunity for a retrial should be afforded, and presumably that opportunity would be taken advantage of in most cases by the party dissatisfied with the outcome of the first trial. Thus the minority rule does not do away with the need for a reexamination of the issue previously determined. On the other hand, the practical advantage of the traditional view lies in its assurance that in every case the triers of the fact will have the testimony itself before them and not merely a written record of the conclusion reached by some other tribunal — a conclusion that may have been influenced by factors not relevant to the later case. Since we are not convinced that our own precedents are demonstrably wrong we think it best to preserve certainty in the law by declining to overrule our earlier decisions. It follows that there is no competent evidence to show that the appellant has forfeited her right to the statutory allowance. We express no opinion as to whether proof of the conviction alone would be sufficient to bar dower under Ark. Stats., § 61-230, supra, as the appellant did not claim dower in Dean’s estate.

Affirmed as to the asserted tenancy by the entirety, reversed as to the statutory allowance.

Holt, J., dissents.