Dissenting Opinion
Crumpacker, J.,dissents.—By this appeal the parties sought to have this court determine the disposition of property held by a husband and wife as tenants by entireties where the husband kills the wife, and having survived her, kills himself. The appellants are the personal representatives and heirs at law of the wife and were the plaintiffs below. The appellees are the personal representatives and heirs at law of the husband and were the defendants below. The question was raised by a demurrer to the complaint based on the contention that said complaint shows on its face that the property involved was entireties property and that the husband survived the wife and therefore her heirs took nothing. The appellants contended, in general, that to hold with the demurrer would sanction the proposition that a man, and those who claim through him, can legally profit by his own wrong. That the recognition of such a proposition would be contrary to public policy which, under the circumstances, demands the forfeiture of the husband’s rights, as the surviving spouse, in entireties property. The court below adopted the appellees’ views and sustained the demurrer and, upon the appellants’ refusal to plead over, entered judgment against them.
This court refused to consider this question although the court below and all- parties concerned understood and considered it to be raised by the issues but, sua sponte, concluded that the complaint is good because it fails to show that the husband survived his wife and that under its allegations the appellants Would have *434been permitted to prove that the wife survived the husband or that they died simultaneously or under circumstances from which simultaneous death is presumed.
The particular allegation of the complaint which prompted this conclusion reads as follows :
“That on the 11th day of June, 1954, the said Bynus W. Bledsoe shot, killed and murdered the decedent, Thelma Able Bledsoe. That the said Bynus W. Bledsoe within an hour after said shooting of said decedent shot and took his own life on said 11th day of June, 1954.”
In construing a pleading, the meaning and intention of the pleader are of paramount importance and the effect of a pleading is not necessarily determined by the technical meaning of a single word. Sec. 41 Am. Jur., Pleading, §§69 and 70. If a complaint states the facts constituting the cause Of action in such a manner as to enable a person of common understanding to know what is intended, the matter is sufficiently stated although awkward and illogical in form. Terre Haute Electric Co. v. Roberts (1910), 174 Ind. 351, 91 N. E. 941; Western Union Telegraph Company v. Kinney (1886), 106 Ind. 468, 7 N. E. 191.
It seems perfectly clear to me that, by the excerpt from the complaint above quoted, the pleader intended to charge that the husband survived the wife. The court below so construed it as did all parties concerned but this court, sua sponte, seized upon the single word “shooting” and because it is not technically synonymous with “killing,” although apparently so used, concludes otherwise. The construction of the complaint adopted by the parties and the court be)ow, in the spirit of code pleading, was amply justified and in my opinion we should have decided the question the party sought to present on the present record.
Note.—Reported in 126 N. E. 2d 490.