This is an action in ejectment instituted by John A. Wenker against Ray Landon as administrator of the estate of George W. Johnson, deceased, Robert L. Johnson, a minor, Ray Landon as guardian of the person and estate of Robert L. Johnson, a minor, and certain tenants, to determine the title and right to possession of twenty acres of farm land situate in Marion county, Oregon.
On December 3, 1935, and for some years prior thereto, George W. Johnson and Mary T. Johnson were husband and wife and owned as tenants by the entirety the real property above mentioned. It is conceded that on the evening of the above date, George W. Johnson killed his wife and, on the same day, within a short time thereafter, committed suicide by hanging himself. It is also agreed that Mrs. Johnson predeceased her husband. *Page 277 No children were born as a result of this marriage and both the decedents died intestate.
The defendant Robert L. Johnson, son of George W. Johnson by a former marriage, is the sole surviving heir of his father. The plaintiff, John A. Wenker was the brother of Mrs. Johnson and is her only surviving heir and next of kin.
The cause was submitted to the court without a jury and a judgment rendered dismissing the action. From this judgment, the plaintiff appeals.
It is the plaintiff's contention that George W. Johnson feloniously took the life of his wife and that, therefore, under § 10-213, Oregon Code 1930, neither he nor his heir could acquire any right, benefit or interest in the above-mentioned property because of her death; and that the plaintiff, as next of kin and heir at law of Mrs. Johnson, is the owner and entitled to possession of such property.
The defendants contend that the above statute has no application to the facts in this case and, since it is conceded that George W. Johnson survived his wife, the estate being held by them in the entirety, title to the property in question would be vested in him. Thus, his sole heir at law, Robert L. Johnson, would, under the rules of descent, be entitled to be declared to be the owner thereof. It is further contended by defendants that Johnson did not feloniously kill his wife but that he was insane and did not have mental capacity to distinguish between right and wrong.
As I view the record, the vital question is whether there is any substantial evidence to support the judgment. It is to be borne in mind that the cause was submitted to the court without a jury and its general finding has the force and effect of the verdict of a jury. *Page 278 Relative to the issue as to whether the life of this woman was feloniously taken, we should not, therefore, be concerned with the weight of the evidence but rather with the question as to whether there is any substantial evidence tending to show that Johnson was incapable of a felonious intent at the time he took the life of his wife.
What has been said relative to this issue is based on the assumption that the statute upon which plaintiff relies applies to a case where an estate by the entirety is involved. I cannot concur in what seems to me a narrow construction of § 10-213, Oregon Code 1930, as expressed in the majority opinion. I am not willing to agree to the proposition that, under the above statute, a man could murder his wife and come into the immediate enjoyment of an estate held by them in the entirety. The primary purpose in enacting the statute was to prevent a person from profiting by his own wrong. The prohibition against receiving "any interest whatsoever in the estate of the decedent" is broad enough, in my opinion, to cover the instant case.
The authorities are in conflict as to whether under the common law property held as an estate by the entirety will pass to a person who has wrongfully taken the life of his spouse. SeeBeddingfield v. Estill, 118 Tenn. 39, 100 S.W. 108, 9 L.R.A. (N.S.) 640, 11 Ann. Cas. 904; Bryant v. Bryant, 193 N.C. 372,137 S.E. 188, 51 A.L.R. 1100; Barnett v. Couey,224 Mo. App. 913, 27 S.W.2d 757; Van Alstyne v. Tuffy, 169 N.Y.S. 173; 31 Law Notes 9; 11 N.Y.U.L.Q. Rev. 298; 82 U. Pa L. Rev. 183; 2 Wash. L. Rev. 121. It is the plaintiff who invokes the statute and the burden of proof on the question as to whether there was a felonious taking of the life of Mrs. Johnson rests upon him. We are not advised by *Page 279 the record as to how this woman was killed except that, under the stipulation of facts, she died "from an on account of blows or injuries received by her from the hands of George W. Johnson." For aught that appears, he might have shot her in self-defense or struck her with a sledge hammer in a fit of anger. Under this state of the record, we are not permitted to invoke any presumption of the wrongful use of deadly weapons.
The record discloses that, in April, 1933, George W. Johnson was committed to the state hospital for the insane and that he was paroled, but not discharged, in June of the same year. It also appears that, at the time of his death, he was under guardianship and parole. It being shown that there was an adjudication of insanity at the time of his commitment, under the clear weight of authority such mental condition would be presumed to continue until overcome by evidence to the contrary: Johnsonv. Johnson, 124 Or. 480, 264 P. 842; In re Dugan, 158 Or. 439,76 P.2d 961, and cases in note 68 A.L.R. 1315. Aside from the presumption of insanity upon which defendants have a right to rely, the record discloses the following testimony of Dr. Charles E. Bates, a specialist in psychiatry employed at the state hospital:
"Q. What was he suffering from? A. The diagnosis in his case was epilepsy of the delirious and confused type.
* * * * * "Q. Did you ever observe him in any fit of anger or epileptic fits? A. I did not have the privilege of seeing him in any epileptic fits on my ward. He had convulsions, however, in the institution, but under treatment they had become less frequent, and I think most of them had occurred at night. However, he had several convulsions when he first came to the institution during the daytime. *Page 280
"Q. Do persons recover from the type of epilepsy that George W. Johnson had? A. No.
* * * * * "Q. I will ask you, Doctor, as to whether or not in your opinion persons suffering from the type of epilepsy this man had would have occasions when they could not distinguish right from wrong. A. Well in the — in fits such as he had it is possible for a patient to have what we call an amnesic state, and in an amnesic state go into a fit of anger, or at least they could have a fit of anger in this amnesic state and do something they afterwards would not know anything about. As far as knowing right or wrong, they don't know anything about it at that time."
The doctor, however, refused to say, in answer to a hypothetical question, that in this particular instance Johnson did or did not know "right from wrong at the time he committed the act." No one saw the deed committed and we are permitted to draw inferences only from the facts proved. There is evidence that half an hour prior to the time he killed his wife he was in a state of anger and mental confusion.
In my opinion, there is some evidence tending to show that Johnson, at the time of the killing of his wife, was incapable of entertaining a felonious intent. It was, therefore, a question for the trial court to determine.
For the reasons above stated, I concur in the result reached in the majority opinion although I cannot agree with its reasoning. *Page 281