                                        No. 12014

        I N T E SUPREME C U T O THE STATE O MONTANA
             H           OR F              F

                                           1972



MARIE SIKORA ,

                               P l a i n t i f f and Appellant,

      -VS   -
ALOIS F, SIKORA, ANNE WILBUR, FRANCES ZELIBOR
  and DOLORES McCLURE,
                       Defendants and Respondents.



Appeal from:        D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                    Hon. Robert Wilson, Judge presiding.

Counsel of Record:

      For Appellant :

                Grant and Heard, Columbus, Montana.
                Richard Heard argued, Columbus, Montana,
                Sandall, Moses and Cavan, B i l l i n g s , Montana.
                Charles F. Moses argued, B i l l i n g s , Montana.

      For Respondents:

                William R. Morse argued, Absarokee, Montana.
                S c o t t , S c o t t and Baugh, B i l l i n g s , Montana,



                                                 Submitted:          A p r i l 19, 1972

                                                    Decided :JUL 2         6 1z
                                                                              9
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
       This is an appeal by plaintiff-appellant, Marie Sikora,
from a summary judgment and denial of motion to amend or alter
judgment in a heirship proceeding.    Marie Sikora filed a com-
plaint alleging her sole heirship to the decedent, Rudolph J.
Sikora, her husband, in the district court of Stillwater County.
District Judge Robert H. Wilson in an order signed November 18,
1970, and the judgment entered on November 20, 1970, ruled
against Mrs. Sikora, imposing a constructive trust upon the
property she claimed.   The basis of the holding is the holding
of the court that Mrs. Sikora had feloniously killed her hus-
band, 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. Sikora was living
with her mother as a result of continuing marital difficulties
with her husband.   On the day of the shooting Mrs. Sikora drove
to the family home in Absarokee, Montana, allegedly summoned
there by her husband.   She took with her a loaded .38 caliber
pistol.whkch she had purchased two days earlier.    Upon arriving
at the house she remained in her car and engaged the decedent
in an argument. After a few minutes she drove off at a high
rate of speed.   Returning a few minutes later to the house she
shot her husband three times, killing him.
       First degree murder charges were filed against Mrs. Sikora
as a result of the shooting incident.    This charge was later re-
duced to voluntary manslaughter.     On February 26, 1970, at a
hearing before Judge Wilson in Stillwater County, Mrs. Sikora
pled guilty to the charge.   Judge Wilson on March 10, 1970,
sentenced Mrs. Sikora to five years imprisonment.    The execution
of the sentence was suspended and she was placed on probation.
      A petition for letters of administration was filed by
Dolores McClure, a niece of the decedent, in the decedent's
estate on August 4, 1969. Mrs. McClure is one of the respondents
in this appeal.   She was appointed administratrix of the estate
on August 19, 1969.
      Marie Sikora filed a complaint in the probate proceeding
on March 20, 1970, alleging that she was the sole heir of Rudolph
Sikora and asked the court to determine heirship.    The respond-
ents, Mrs. McClure, Alois F. Sikora, Mrs. Anne Wilbur and Mrs.
Frances Zelibor, filed an answer on April 6, 1969 asserting the
affirmative defense that Mrs. Sikora should not share in the
estate as she had, "wrongfully, intentionally, willingly and
feloniously killed her husband."
       Counsel for Mrs. Sikora moved 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."
The motion was filed on October 8, 1970, and the respondents
cross-filed for summary judgment in their own behalf on October
13, 1970.   It was upon this cross-motion that Judge Wilson enter-
ed his order and judgment, and from which this appeal was taken.
       The controlling issue raised in this appeal is whether 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 for Mrs. Sikora,
such as whether or not this was a proper case for summary judgment
and whether it was proper for Judge Wilson 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 her-
self has already been settled in Montana.     This Court held in
the Estate of Bess I. Cox, 141 Mont. 583, 380 P.2d 584 (1963),
that a joint tenant, who had intentionally and 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 the heirs of the deceased joint tenant.    We based
this decision on the equitable principle that a wrongdoer may
not benefit from his wrongful acts.     Section 49-109, R.C.M. 1947.
This same principle holds true in this case.     The laws governing
joint tenancy will not be given a strict construction where the
demands of justice and public policy demand another.    Therefore
we hold that Mrs. Sikora will not take that share of the joint
property owned by her husband because of her unlawful act of
killing him and the court below was correct in imposing a con-
structive trust on that property for the benefit of the respond-
ents.
        The same considerations which led us to reach the decision
in - as well as the decision above are applicable to our de-
   Cox
cision concerning the property Mrs. Sikora would take by intestate
succession and dower.     At least two other jurisdictions hold that
per'sonsq convicted of a willful homicide cannot share in the
estate of their victim.     The superior court of New Jersey held in
a case, where a man had murdered his wife,he would not be allowed
to share in her estate because of the unconscionable method he
had used to acquire the property.    Estate of Kalfus, 81 N.J.Super.
435, 195 A.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 the murdered 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, 172 Misc. 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.    It would seem strange law indeed to make a
construction of a statute which would allow a wrongdoer to bene-
fit from his own wrongful act.    We reiterate the statement in

- page
Cox,at        590,that it would be unthinkable that our legislature
contemplated giving the fruits of his crime to one who commits
a homicide, and therefore we 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 own wrong.
         In their brief the counsel for Mrs. 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 the Montana Consti-
tution.    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, 11 N.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:
          "This doctrine (constructive trust) is so con-
          sistent with the equitable principles that have
      obtained 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. It would be a strange
      system of jurisprudence that would be able to
      grant relief against many kinds of accidents,
      mistake and fraud, by compelling a defendant
      to act as constructive trustee with 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 be-
cause of his murderous act he would be made the constructive
trustee of the property.   The Arkansas 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 in-
surance policy because she could not take directly as a benefi-
ciary as the result of killing her husband and she would not be
allowed to take indirectly by the operation of her dower interest.
It would create a great inconsistency in this area of the law to
hold that Mrs. Sikora could not take by intestate succession
directly because of her conduct, to then allow her to take indirect-
ly by dower.
       The question of whether this was a proper case for summary
judgment was also raised by Mrs. Sikora's counsel.   At the outset
we would like to point;.outit was plaintiff's counsel who first
moved for a summary judgment asserting there were no factual issues
to be decided and that the case was a matter of law only.     It

was upon this motion that the respondents cross-moved for a sum-
mary 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 respondents are in fact heirs of the decedent.    In re-
viewing the record we find that fact has already been establish-
ed.   Mrs. Sikora in her complaint filed March 20, 1970, in para-
graph I1 alleged the family relationship between Alois sikora,
Anne Wilbur, Frances Zelibor, Dolores McClure, and the decedent.
In the answer filed by the above-named people, that portionsof
paragraph I1 was admitted, therefore under our rules of civil
procedure the.statement will 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 she had feloniously.killedher husband.    Her
counsel argues that such a plea cannot be used as conclusive
proof of these facts.   While it is true it cannot be used as con-
clusive proof it was not improper for Judge Wilson to make use
of it.   The rule is that the plea of guilty in a criminal matter
may be admitted in a subsequent civil Action as an admission
against interest of the party making the plea.    3 Jones on Evi-
dence, 5th Ed., 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 suffi-
      cient, especially when uncontradicted, to support
      the finding that the defendant had in fact com-
      mitted a robbery."
There is nothing in the record to indicate that at any time Mrs.
Sikora denied killing her husband.   Under - at page 586, the
                                           Cox,
probate 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 hus-
band.   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 connection with 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 see what difference it makes to
the determination if the entire record of the criminal proceeding
is considered or not.    Also there is nothing to indicate that
the complete record of the criminal proceeding was not considered
by Judge Wilson.   He was the presiding judge in the criminal mat-
ter 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 from his own memory.
          The judgment of t




   Associate Justices
