### No. 12014 IN

### THE 

### SUPREME COURT OF THE 

### STATE OF MONTANA 

### 1972

MARIE 

### SIKORA

## , Plaintiff and Appellant,

-VS

# - ALOIS F, SIKORA, ANNE WILBUR, 

### FRANCES ZELIBOR 

### and DOLORES McCLURE,Defendants and Respondents.

Appeal from: District Court of theThirteenthJudicialDistrict, Hon. RobertWilson, Judgepresiding. Counsel of Record: ForAppellant: 

### Grant and Heard, Columbus, Montana. Richard Heard argued, Columbus, Montana, Sandall, Moses and Cavan, Billings, Montana. Charles F. Moses argued, Billings, Montana. For Respondents: William R. 

### Morse argued, Absarokee, Montana. Scott, Scottand Baugh, Billings, Montana,

Submitted: April 19, 1972 Decided

### : 

### JUL2

## 6

## 19z

### Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal by plaintiff-appellant,Marie Sikora, from a summary judgmentand denial ofmotion to amend or alter judgment in a heirship proceeding. Marie Sikora filed a complaint alleging her soleheirship to the decedent,Rudolph J. Sikora,her husband, in the district court of Stillwater County. District JudgeRobert H. Wilson in an order signed November 18, 1970,and the judgmententered onNovember 20, 1970, ruled againstMrs. Sikora, imposing a constructive trust upon the property she claimed. The basis of the holding is the holding of the court thatMrs. Sikora had feloniously killed her husband, and therefore could not share in his estate. The following facts are taken from the record: Mrs. Sikora shot and killed her husband shortly after 8:00 a.m. on June 27, 1969. At the time of the shooting Mrs. Sikorawas living with her mother as a result of continuing marital difficulties with her husband. On the day of the shootingMrs. Sikora drove to the family home inAbsarokee, Montana, allegedly summoned thereby her husband. She took with her a loaded .38 caliber pistol.whkchshe had purchased two days earlier. Upon arriving at the house she remained in her car and engaged the decedent in an argument. After a fewminutes she drove off at a high rate of speed. Returning a fewminutes later to the house she shother husband three times, killing him. First degreemurder charges were filed againstMrs. Sikora

as a result of the shooting incident. This chargewas later reduced to voluntary manslaughter. On February 26, 

### 1970,at a hearing before Judge Wilson in Stillwater County,Mrs. Sikora pled guilty to the charge. JudgeWilson onMarch 10, 1970,sentenced Mrs. Sikora to five years imprisonment. The execution of the sentencewas suspended and shewas placed on probation. A petition for letters of administration was filed by Dolores McClure, a niece of the decedent, in the decedent's estate onAugust 

### 4, 1969. Mrs. McClure is one of the respondents in this appeal. Shewas appointed administratrix of the estate

onAugust 19, 1969. Marie Sikora filed a complaint in the probate proceeding

on March 20, 1970,alleging that shewas the sole heir of Rudolph Sikora and asked the court to determine heirship. The respondents, Mrs. McClure, Alois 

### F. Sikora,Mrs. Anne Wilbur and Mrs. Frances Zelibor, filed an answer on April 6, 1969 asserting the affirmative defense thatMrs. Sikora should not share in the estate as shehad, "wrongfully, intentionally,willingly and feloniously killed her husband." Counsel forMrs. Sikoramoved for a summary judgment in the case stating: "That there is no issue of fact in this case that requires resolution or determination by the Court or jury and that the determination of this case is a matter of law only." Themotion was filed on October 8, 1970, and the respondents cross-filed for summary judgment in their own behalf on October 13, 1970. Itwas upon this cross-motion that JudgeWilson entered his order and judgment, and from which this appeal was taken. The controlling issue raised in this appeal iswhether a surviving widow, who has pled guilty to the voluntary manslaughter of her husband, can share in his estate by operation of the laws of joint tenancy, intestate succession, and dower. Several collateral issues were raised on appeal by counsel forMrs. Sikora, such aswhether or not thiswas a proper case for summary judgment

### and whether itwas proper for JudgeWilson to use the plea of guilty of Mrs. Sikora as the only evidence of the fact that she killed her husband. The question of whether Mrs. Sikora may by right of survivorship take property owned jointly by her husband and herself has alreadybeen settled in Montana. This Court held in the Estate of Bess I. 

### Cox, 141Mont. 583, 380 P.2d 584 (1963), that a joint tenant,who had intentionallyand wrongfully killed another joint tenant, was not entitled to the survivorship share in the property. As a remedy in this type of situation we held that a constructive trust would be imposed on the property for the benefit of theheirs of the deceased joint tenant. We based this decision on the equitable principle that a wrongdoer may not benefit fromhis wrongful acts. Section 49-109,R.C.M. 1947. This sameprinciple holds true in this case. The laws governing joint tenancy will not be given a strict constructionwhere the demands of justice and public policy demand another. Therefore

we hold thatMrs. Sikora will not take that share of the joint property owned by her husband because of her unlawful act of killing him and the courtbelowwas correct in imposing a constructive trust on that property for the benefit of the respondents. The same considerationswhich led us to reach the decision in

# - Cox aswell as the decision above are applicable to our decision concerning the property Mrs. Sikora would take by intestate succession and dower. At least two other jurisdictions hold that per'sonsqconvicted of a willful homicide cannot share in the estate of their victim. The superior court of New Jersey held in

a case,where aman had murdered his wife,he would not be allowedto share in her estate because of the unconscionablemethod he had used to acquire the property. Estate of Kalfus, 81N.J.Super. 435, 195A.2d 903 (1963). The New Jersey court in that case used as a remedy a constructive trust to transfer the property to the children of themurdered wife. New York has also held that a person convicted of manslaughter of any degree will not be allowed to profit from the estate of his victim. In re Sparks' Estate, 172Misc. 642, 15 N.Y.S2d 926 (1939); In re Drewes' Estate, 206 Misc. 940, 136 N.Y.S.2d 72 (1954). The reasoning in these cases coupled with Cox Zed us to reach the 

# - same conclusion. Itwould seem strange law indeed to make a construction of a statute whichwould allow a wrongdoer to benefit fromhis own wrongful act. We reiterate the statement in Cox,atpage 590,that itwould be unthinkable that our legislature 

# - contemplated giving the fruits of his crime to one who commits

a homicide,and thereforewe find it inherent in the statutes dealing with succession that they be subject to the reservation that a felonious killer shall not benefit by his ownwrong. In their brief the counsel forMrs. Sikora argue that to make such a decision is to do violence to the Montana statute concerning forfeitures of estates for conviction of a crime. Section 94-4725,R.C.M. 1947. The assertion is also made that such a decision violates Art. 111, Sec. 9 of theMontana Constitution. This Court finds little merit in these arguments. The court below imposed upon Mrs. Sikora's property a constructive trust. The New Jersey court in Neiman v. Hurff, 11N.J. 55, 93 A.2d 345, 347 (1952),addressing itself to the corruption of blood issue and the use of the constructive trust held that: "Thisdoctrine (constructivetrust) is so consistentwith the equitable principles that haveobtained here for centuries that we have no hesitancy in applying it,and we find no merit at all in the defendant's argument that the decision below works 

### a corruption of blood or a forfeiture of estate. Itwould be a strange system of jurisprudence that would be able to grant relief againstmany kinds of accidents, mistake and fraud,by compelling a defendant to act as constructive trusteewith respect to property vouchsafed him by the common law,and yet be unable similarly to touch the legal rights of a defendant who sought to profit by a heinous crime." This leaves the remaining issue of whether Mrs. Sikora has dower rights in the real property owned by her decedent husband. In Kalfus, at page 906, the New Jersey Court held that the husband had a legal right to his curtesy interest,but because of his murderous act he would be made the constructive trustee of the property. TheArkansas Supreme Court in Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787, 790 (19411,held that a woman would have no dower rights in the proceeds of a life insurancepolicy because she could not take directly as a beneficiary as the result of killing her husband and shewould not be allowed to take indirectlyby the operation of her dower interest. Itwould create a great inconsistency in this area of the law to hold thatMrs. Sikora could not take by intestate succession directly because of her conduct, to then allowher to take indirectly by dower. The question of whether thiswas a proper case for summary judgmentwas also raised by Mrs. Sikora's counsel. At the outset

we would like to point;.outitwas plaintiff's counsel who first moved for a summary judgment asserting there were no factual issues to be decided and that the casewas a matter of law only. It

was upon thismotion that the respondents cross-moved for a summary judgment in their favor. Be that as it may, the issue of

### fact that counsel argues needs to be determined is whether or not the respondentsare in fact heirs of the decedent. In reviewing the record we find that fact has already been established. Mrs. Sikora in her complaint filed March 20, 1970, in paragraph I1 

### alleged the family relationshipbetween Alois sikora, Anne Wilbur, Frances Zelibor, DoloresMcClure, and the decedent. In the answer filed by the above-named people, that portionsof paragraph I1was admitted, therefore under our rules of civil procedure the.statementwill be taken as true and no further proof is needed for it. Rule 8(d), M.R.Civ.P. Taking that fact and applying section 91-403(3), R.C.M. 1947, the respondents

are heirs of the decedent. We conclude from the record that there were no issues of fact to be decided and the case was a proper one for disposition by summary judgment. The last issue raised by Mrs. Sikora was the use of her plea of guilty to the charge of manslaughter as the basis for Judge Wilson's decision shehad feloniously.killed her husband. Her counsel argues that such a plea cannotbe used as conclusive proof of these facts. While it is true it cannot be used as conclusiveproof it was not improper for JudgeWilson to make use of it. The rule is that the plea of guilty in a criminal matter may be admitted in a subsequentcivilAction as an admission against interest of theparty making the plea. 3 

### Jones on Evidence, 5thEd., sec. 639,p. 1219 (1958). AnIllinois decision, Smith v. Andrews, 5 Ill.App.2d 51, 203 N.E.2d 160, 164 (1964), Held on this issue that: "The evidence of this admission would be sufficient,especiallywhen uncontradicted, to support the finding that the defendanthad in fact committed a robbery." There isnothing in the record to indicate that at any timeMrs. Sikora denied killing her husband. Under Cox, 

# -atpage 586, theprobate judge has the power to determine the circumstances of the death of the decedent. It is logical to assume Judge Wilson took judicial notice of the plea of guilty and determined as a matter of law that Mrs. Sikora had feloniously killed her husband. Under section 93-501-1(2), R.C.M. 1947,Judge Wilson could properly take notice of the conviction as being established by law. In connectionwith the judge taking judicial notice of the conviction the counsel for Mrs. Sikora argued that he should have taken into account the complete record. We see little merit in this contention. We cannot seewhat difference itmakes to the determination if the entire record of the criminal proceeding is considered or not. Also there isnothing to indicate that the complete record of the criminal proceeding was not considered by JudgeWilson. He was the presiding judge in the criminal matter and the time period between the plea of guilty and the probate proceeding was not so great that he could not recall the criminal

case fromhis ownmemory. The judgment of t

Associate Justices