Hyperlawhypertext legal databasebeta Preston v. Palmer 23 Abb. N. Cas. 452

← Cases

Preston v. Palmer

23 Abb. N. Cas. 452 Court N. Y. Court of Appeals ; English

Decision Majority — Earl, J. · Dissent — Gray, J. (dissenting).

Contents

Majority

p. 452
PRESTON v. PALMER.
N. Y. Court of Appeals ;
October, 1889:
[Reversing 42 Hun, 388 .]

Headnote

1. Action to enjoin assertion of legal rights.] A court of equity may enjoin from taking under a-will, a legatee who caused the death of-' the testator in order to prevent revocation.
2. Forms.] Form of a complaint in such case
Appeal from a judgment entered upon the decision of General Term, affirming judgment entered upon the report of a referee.
Cecelia G. M. Preston, and Lorette A. Riggs, brought, this action against Elmer E. and Eliza Palmer and Ira Dutton (as administrator with the will annexed of Francis B. Palmer, deceased), and Charles Lee, to enjoin the defendant Elmer E. Palmer, from taking under the will of the deceased,, whom he had murdered. The action was commenced on-September 29th, 1883. A temporary injunction was obtained and thereafter made permanent. The issues were.referred to a referee to hear, try and determine.
p. 453
The referee found as conclusions of law that in this State the transmission of property by will and the descent of property are entirely creations of statute; that under the ■statute law of this State no exception on account of crime :is made as to the right to take by will or descent, and that defendant, though he murdered the testator, is still entitled to take under the will of the latter.
The sv/pi'eme court on appeal concurred in these, the ■conclusions of law, and affirmed the judgment.
The facts appear sufficiently in the opinion.[1]
p. 454
Leslie W. Russell (C. E. Sanford, attorney) for'plaintiffs,. The appellants.
The position for the plaintiffs was correct upon the general grounds, viz., on principle, by authority, and' for public policy.
p. 455
I. On principle :—It is not claimed that the defendant Elmer Palmer may not take because there was a revocation of the will, or because there was a new will made, but because he unlawfully prevented a revocation or a new will by the crime, and because he terminated the enjoyment by his grandfather of his property, and effected his own succession to it by the same crime. All statutory law conferring rights rests upon the broad basis of acquiescence in abstinence from crime, as applied to the enforcement of a right dependent upon any statute. In all instruments by which the passage of title is effected, there is the ample obligation that the beneficiary will do nothing to either criminally obtain the execution of the instruments, or its performance. There is no need of legislation, or of written covenant, to insert this obligation in words in the instrument.
II. By authority :—The maxims of both the common and civil law apply with direct force. “No man shall take advantage of his own wrong ” (Broom’s Legal Maxims, 275 ; Voice’s Littleton, 148 b.).
Other maxims of the common law are directly applicable. Fx dolo malo non oritur actio; Nemo ex proprio dolo consequitur actionem / Frustra legis auxilium qui in legem committit. Where a third person by fraud prevents the execution of the contract which might have been consummated, a cause of action arises in favor of the vendee, who cannot enforce the contract against the vendor (Rice v. Manley, 66 N. Y. 82 ).
Where a beneficiary in a life insurance policy murdered the person whose life was insured it was held that the beneficiary, would not be entitled to take the proceeds of the
p. 456
policy (N. Y. Mutual Life Ins. Co. v. Armstrong, 117 U. S. ■ 591, 600). No distinction lies between the passage of title by will and by contract. There is no distinction which obtains in the enforcement of such a rule of common justice. The reason of the rule applies in one instance as in the other. All the urgency that the moral, natural and municipal law brings to the contemplation of the application of law to occasion applies here as well as in case of contract. No man can take title by an unlawful act. If the unlawful act be provided for in the body of the instrument, it makes the instrument void ; and if that unlawful act be in execution of a contingency in a valid instrument, it destroys the efficacy of the instrument itself in its application to the criminal. In the construction of wills, in the application of extrinsic facts, happening subsequently to the execution of the will, the intent of the testator is the pole star to guide the courts. Here, had the testator anticipated the murderous intent, the bequest never would have been made or contimied (O’Hara Will Case, 95 N. Y. 403 , 412. See also Wallgrave v. Tebbs, 2 K.& J. 313, 321; Schultz’s Appeal, 80 Penn. St. 396 ,405; Russell v. Jackson, 10 Hare,204). It is a fraud upon the testator that the beneficiary should intend to deprive him of the enjoyment of his property, and prevent the revocation of his will. The doctrines of the civil law are applicable here (Orleans County Bank v. Moore, 112 N. Y. 543 , 549). If the beneficiary attempts the life of the testator he cannot take under the instrument (Domat Civil Law, part II, book I, title I, § 3, Cushing ed. 1850, 2d vol. 78, 80 ; Pothier on Successions, chap. I, § 2, art. IV, § 2; Toullier, Vol. VI, p. 111; Marcode, vol. III, p. 42; Code Napoleon, art. 727 ; Spanish Partidas, 994; Louisiana Code, 1560, 1570). The defendant is estopped by his own conduct from claiming the title to this property. The testator had the undoubted right to his life, and also the right to rely on the defendant’s not doing anything to shorten it. No man may take title, when, by so doing, he injures confidence which he has induced, or gets it by an act which the law recognizes
p. 457
as evil in itself (Bigelow on Estoppel, 370; Herman on Estoppel, §§ 733, 731, 740, 991; 2 Story’s Eg. Jur. §§ 1533, 1544 ; Caulfield v. Sullivan, 85 N. Y. 153 ; Chamberlain v. Chamberlain, 43 Id. 424, 442 ; Leonard v. Crommelin, 1 Edw. Ch. 206 ; Shivers v. Goar, 40 Ga. 676 ; Cox v. Rogers, 77 Pa. St. 160 ).
III. For public policy: The statutory and unwritten law form a complete body applicable to the prevention of private wrongs, as well as the enforcement for public example of salutary rules forbidding the acquisition of property ‘by crime.
We might not be able to resist the probate of the will, because validly executed and not revoked; but we might show matters dehor the will, which prove that a devise or bequest is ineffective, as alienage of the taker. Confusion in regard to the person meant as beneficiary, incapacity to take from any cause, the efficacy or invalidity of the dispensing claims in a will, are not to be judged purely by ¡statutory law. Nine-tenths of the questions arising upon ■such claims are determined by the principles of the unwritten law. The statute was not intended to protect and «cover a foul crime. If it were, the statute itself would be void (Broom’s Legal Maxims, 19, 20; Coke on Littleton, 341 a ; Finch’s Law, 75, 76; Noy. Max. 9th ed. 2; Doct. & Stud. 18th ed. 15, 16). In the case of malum prohibitum, ¡artificial lines of action may require legislation to declare a wrong. In the cause of malum i/n se, it is never necessary to «declare by statute that an act, base in itself, shall not pass a property, or convey a right.
W. M. Hawkins and J. A. Vance for defendants, respondents.—I. The plaintiff’s counsel disclaimed any attempt, before the referee, to maintain that there had been a revocation of the will. He based his argument on the sole ground that public policy demanded that the defendant, because of his crime, should be barred from taking the property.
p. 458
II. The mental capacity of the testator is not questioned.
III. The plaintiff, to avoid the will, must show a revocation thereof, or impeach its validity for fraud or duress.
IV. The declarations of the testator, upon the question, of a revocation, not made at the time of a virtual destruction, are not competent evidence (People v. Davis, 56 N. Y. 95 , 102; Waterman v. Whitney, 11 Id. 157 ; Eighmy v. People, 79 Id. 546, 559). The statute having enumerated various methods hy which a will may be revoked, such enumeration implies a prohibition of any other method. There is no evidence to sustain a claim that the testator-revoked the will.
V. The capacity of the testator, the formal execution of the will, etc., being unquestioned, matter transpiring after-its execution cannot invalidate it (Seguine v. Seguine, 4 Abbott's Ct. of App. Dec. 191-194). The testator accepted every possibility as to the time and manner of his death.. Neither a court of equity nor of law can vary men’s wills,, or make wills or agreements for them (3 Blackstone, 350).
VI. Supposing a change in the will was prevented by the defendant, the act of prevention, rather than the manner,. is the ground of complaint (Leaycraft v. Simmons, 3 Bradf. 35 ; 12 Am. Deo. 375).
VII. The court will not thwart the object and will of deceased to please the plaintiffs. To thus deprive defendants of his rights would be in direct violation of the statute- (Penal Code, §§ 7 and 710 ; 3 JR. 8. 964, §42). It does not-lie with the court to enhance the pains, penalties and forfeitures provided by law for the punishment of crime, nor can it add any disability to those pains and penalties not expressly declared by the constitution or laws (People v. Thornton, 25 Hun, 456 -68). Except when a civil action is given by statute to recover a penalty, or it appears that, the plaintiff has been injured in personal estate by the criminal act, the law gives no right to maintain a civil action based upon the crime.
IX. This is a case sni generis. It is not only new m
p. 459
instance, bnt also new in principle. There is a well established rule that when a case is new in principle, it is necessary to have recourse to legislative interposition to remedy the grievance ; but when the case is new in instance, and the only question is upon the application of a principle recognized in law, can the courts act (Broom’s Legal Maxims, 4th ed. 154). Recognizing the distinction, statutes in some countries and States have been enacted applicable to cases such as the one at bar. In this case the law has pronounced its sentence, and that sentence does not. embrace incapacity to take property under this will or in any other method provided by statute (Civil Code of Canada,. pages 95, 142; Owens v. Owens, 100 N. C, 240 ).
X. The maxim, “ No man shall take advantage of liisown wrong,” applies only when the money is the primary or principal formation of the claim made by the wrong-doer, and not when such money is only an incident.
XI. Since the repeal of the act of 1799, it cannot be-urged that the defendant is civilly dead (Platner v. Sherwood, 6 Johnson Ch. 118; 32 Alb. L. J. 68; 38 Alb. L. J. 394). This action can only relate to the real estate.. As to the personal, the probate is conclusive (Post v. Mason, 91 N. Y. 539 ).
The civil law has never been in force in this State, and the cases arising in courts bound by the civil law and cited by counsel, are not applicable.

On August 13, 1880, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant, Elmer E. Palmer, subject to-the support of Susan Palmer, his mother, with a gift over to the two daughters, subject to the support of Mrs. Palmer, in case Elmer should survive him and die under age, unmarried, and without any issue. The testator, at the date of' his will, owned a farm and considerable personal property..

p. 460
He was a widower, and thereafter, in March, 1882, he was married to Mrs. Bresee, with whom, before his marriage, he ■entered into an ante-nuptial contract, in which it was agreed that, in lien of dower and all other claims upon his estate, in case she survived him, she should have her support upon his farm, during her life, and such support was expressly charged upon the farm. At the date of the will and subsequently to the death of the testator, Elmer lived with him as a member of his-family, and at his death was sixteen years •old. He knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he wilfully murdered him by poisoning him. He now claims the property,' and the sole ■question for our determination is, can he have it ?

The defendants say that the testator is dead; that his will was made in due form and has been admitted to probate, and that, therefore, it must have effect according to the letter of the law.

It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.

The purpose of those statutes was to enable testators to ■dispose of their estates to the objects of their bounty at ■death, and to carry into effect their final wishes, legally expressed, and in considering and giving effect to them this purpose must be kept in view.

It was the intention of the law makers that the donees in ;a will should have the property given to them. But it never ■could have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it. If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they

p. 461
would have provided for it. It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if- it were within the letter ; and a thing which is within the letter of the statute is.not within the statute unless it be within the intention of the makers.

The writers of law do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is called rational interpretation ; and itutherforth in his Institutes, page 407, says : “ When we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take .in less, and sometimes, we extend or enlarge his meaning so as to take in more than his words express.”

Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for qui Jiaeret in litera, haeret in eortioe. In Bacon’s Abr. Statutes, 1, 5, Pwffendorf, book 5, chap. 12 ; JRutherforth, pp. 422, 427; and in Smith’s Commentaries, 814, many cases are mentioned where it was held that matters embraced in the general words of statutes nevertheless were not within-, the statutes, because it could not have been the intention of the law makers that they should be included. They were taken out of the statutes by an equitable construction, and it is said in Bacon : “ By an equitable construction a case not. within the letter of the statute is sometimes holden to be within the meaning because it is within the mischief for which a remedy is provided. The reason for such construction is that the law makers could not set down every case in express terms. In order to form a right judgment whether a case be within the equity of the statute, it is a good way to suppose the law maker present, and that you have asked-him this question : did you intend to comprehend this case ? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it you may

p. 462
safely hold the case to be within the equity of the statute; for, while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” In some cases the letter of a legislative act is restrained by an equitable construction ; in others it is enlarged ; in others the construction is contrary to the letter. The equitable •construction which restrains the letter of a statute is defined by Aristotle as frequently quoted in this manner : Aequilas est correctio legis generaliter latm qua parti deficit. If the law makers could as to this case be consulted would they say that they intended by their general language that the property of a-testator or .of an ancestor should pass to one who had taken his life for the express purpose of getting his property ? -In 1 Blackstone Com. 91, the learned author, speaking of the construction of statutes, says : “ If there arise out of them any absurd consequences manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. . . . When some collateral matter arises out of the general words, and happened to be unreasonable, then the judges are, in decency, to conclude that this consequence was not foreseen by the Parliament, and therefore they are at liberty to expound the statute by •equity, and only quoad hoo disregard it,” and he gives as an illustration, if an Act of Parliament gives a man power to try all causes that arise within his manor of Dale, yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.

There was a statute in Bolognia that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street. It is commanded in the Decalogue that no work shall be done upon the Sabbath, and yet giving the •command a rational interpretation founded upon its design, the Infallible Judge held that it did not prohibit works of necessity, charity or benevolence on that day.

What could be more unreasonable than to suppose that

p. 463
it was the legislative intention in the general laws passed for the orderly, peaceable and just devolution of property that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession •of his estate ? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.

Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found 'any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes. They were applied in the decision of the case of the New York Mutual Life Ins Co. v. Armstrong, 117 U. S. 591 ,599. There it was held that the person who procured a policy upon the life of another, payable at his death, and then murdered the assured to make the policy payable, could not recover thereon. Mr. Justice Field writing the opinion said : “ Independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered the assured. It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had wilfully fired.”

These maxims, without any statute giving them force or operation, frequently control the effect and nullify the language of wills. A will procured by fraud and deception like any other instrument may be decreed void and set aside, and so a particular portion of a will may be excluded from probate or held inoperative if induced by the fraud or undue influence of the person in whose favor it is (Allen v.

p. 464
McPherson, 1 H. Lds. Gases, 191 ; Harrison’s Appeal, 48 Conn, 202 ). So a will may contain provisions which are immoral, irreligious or against public policy, and they will be held void.

Here there was no certainty that this murderer would survive the testator, or that the testator would not change his will, and there was no certainty that he would get this property if nature was allowed to take its course. He, therefore, murdered the testator expressly to vest himself with an estate. Under such circumstances, what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime ? The will spoke and became operative at the death of the testator. He caused, that death, and thus by his crime made it speak and have operation. Shall it speak and operate in his favor ? If he had met the testator and taken his property by force, he would have had no. title to it. Shall he acquire title by murdering him % If he had gone to the testator’s house and by force compelled him, or by fraud, or undue influence had induced him to-will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder and yet take the property ? To answer these questions in the affirmative, it seems to me, would be a reproach to the jurisprudence of our State and an offence against public policy.

Under the civil law, evolved from the general principles of natural law and justice by many generations of juris consults, philosophers and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered (Domat, part II, book I, tit. I, § III; Code Napoleon, § 727; Mackelday’s Roman Law, 530, 550). In the Civil Code of Lower Canada, the provisions on the subject in the Code Napoleon have been substantially copied. But, so far as I can find, in no country where the common law prevails has it been deemed important to enact a law to provide for such a case. Our re visors and law makers were familiar with the civil law and they did not

p. 465
deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case, and that a specific enactment for that purpose was not needed.

For the same reasons the defendant Palmer cannot take any of this property as heir. Just before the murder he was not an heir, and it was not certain that he ever would be. He might have died before his grandfather, or might have been disinherited by him. He made himself an heir by the murder, and he seeks to take property as the fruit of his crime. What has before been said as to him as legatee, applies to him with equal force as an heir. He cannot vest himself with title by crime.

My view of this case does not inflict upon Elmer any greater or other punishment for his crime than the law specifies. It takes from him no property, but simply holds that he shall not acquire property by his crime and thus be rewarded for its commission.

Our attention is called to Owens v. Owens, 100 N. C. 240 , a case quite like this. There a wife had been convicted of being an accessory before the fact to the murder of her husband, and it was held that she was, nevertheless, entitled to dower. I am unwilling to assent to the doctrine of that case. The statutes provide dower for a wife who has the misfortune to survive her husband and thus lose his support and protection. It is clearly beyond their purpose to make provision for a wife who, by her own, crime, makes herself a widow and wilfully and intentionally-deprives herself of the support and protection of her husband. As she might have died before him and thus never-have been his widow, she cannot, by her crime, vest herself' with an estate. The principle which lies at the bottom of' the maxim volenti non fit injuria should be applied to such¿ a case, and a widow should not, for the purpose of acquiring, as such, property rights, be permitted to allege a widowhood which she has wickedly and intentionally created.

Dissent

p. 466
The facts found entitled the plaintiffs to the relief they seek. The error of the referee was in his conclusion of law. Instead of granting a new trial, therefore, I think the proper judgment upon the facts found should be ordered here. The facts have been passed upon twice with the same result, first upon trial of Palmer for murder and then by the referee in this action. We are, therefore, of opinion that the ends of justice do not require that they should again come in question.

The judgment of the General Term and that entered upon the report of the referee should, therefore, be reversed and judgment should be entered as follows: That Elmer E. Palmer and the administrator be enjoined from using any •of the personalty or real estate left by the testator for .Elmer’s benefit; that the devise and bequest in the will to Elmer be declared ineffective to pass the title to him ; that ¡by reason of the crime of murder committed upon the ¿grandfather he is deprived of any interest in the estate left •by him ; that the plaintiffs are the true owners of the real .and personal estate left by the testator, subject to the charge in favor of Elmer’s mother and the widow of the testator, Hinder the ante-nuptial agreement, and that the plaintiffs have costs in all the courts against Elmer.

All concurred, except Gbay, J., who read a dissenting opinion and Danfobth, J., who concurred therein.

This appeal presents an extraordinary state of facts, and the ease, in respect of them, I believe, is without precedent in this State.

The respondent, a lad of sixteen years of age, being aware of the provisions in his grandfather’s will, which constituted him the residuary legatee of the testator’s estate, caused his death by poison, in 1882, For this crime he was tried and was convicted of murder in the second degree, and at the time of the commencement of this action, he was serving out his sentence in the State reformatory. This action was brought by two of the children of the testator

p. 467
for the purpose of having those provisions of the will in the respondent’s favor cancelled and annulled.

The appellants’ argument for a reversal of the judgment, which dismissed their complaint, is that the respondent unlawfully prevented a revocation of the existing will; or a new will from being made by his crime; and that he terminated the enjoyment by the testator of his property and •effected 1ns own succession to it by the same crime. They ■say that to permit the respondent to take the property willed to him, would be to permit him to take advantage of his own wrong. To sustain their position, the appellants’ counsel has submitted an able and elaborate brief and, if I believed that the decision of the question could be effected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience. But the matter does not lie within the domain of •conscience. We are bound by the rigid rules of law, which have been established by the Legislature, and within the limits of which the determination of this question is confined. 'The question we are dealing with is whether a testamentary disposition can be altered, or a will revoked after the testator’s death, through an appeal to the .courts, when the Legislature has by its enactments prescribed exactly when •and how wills may be made, altered and revoked and, apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters. Modern jurisprudence in recognizing the right of the individual, under more •or less restrictions to dispose of his property after his death, -subjects it to legislative control, both as to extent and to mode of exercise. Complete freedom of testamentary disposition of one’s property has not been and is not the universal rule ; as we see from the provisions of the Napoleonic Code, from the systems of jurisprudence in countries which are modeled upon the Boman law, and from the ■■statutes of many of our States. To the statutory restraints, which are imposed upon the disposition of one’s property

p. 468
by will, are added strict and systematic statutory rules for the execution, alteration and revocation of the will; which must be, at least substantially, if not exactly, followed to insure validity and performance. The reason for the establishment of such rules, we may naturally assume, consists in the purpose to create those safeguards about these grave and important acts, which experience has demonstrated to be the wisest and surest. That freedom, which is permitted to be exercised in the testamentary disposition of one’s estate, by the laws of the State, is subject to its being exercised in conformity with the regulations of the statutes. The capacity and the power of the individual to dispose of his property after death and the mode by which that power can be exercised, are matters of which the Legislature has assumed the entire control and has undertaken to regulate with comprehensive particularity.

The appellants’ argument is not helped by reference to-those rules of the civil law, or to those laws of other governments by which the heir, or legatee, is excluded from benefit under the testament, if he has been convicted of killing, or attempting to kill the testator. In the absence of such legislation here, the courts are not empowered to institute such a system of remedial justice. The deprivation of the heir of his testamentary succession by the Eoman law, when guilty of such a crime, plainly was intended to be in the nature of a punishment imposed upon him. The succession, in such a case of guilt, escheated to the exchequer. (See Domat's Civil Law, part II, book I, title I, § III.)

I concede that rules of law, which annul testamentary provisions made for the benefit of those who have become unworthy of them, may be based on principles of equity and of natural justice. It is quite reasonable to suppose that a testator would revoke or alter his will, where his-mind has been so angered and changed as to make him unwilling to have his will executed as it stood. But these-principles only suggest sufficient reasons for the enactment, of laws to meet such cases.

p. 469
The statutes of this State have prescribed various ways in which a will may be altered or revoked; but the very provision defining the modes of alteration and revocation implies a prohibition of alteration or revocation in any other way. The words of the section of the statute are “ No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise, etc., etc.” Where, therefore, none of the cases mentioned are met by the facts, and the revocation is not in the way described in the section, the will of the testator is unalterable. I think that a valid will must continue as a will always; unless revoked in the manner provided by the statutes. Mere intention to revoke a will does not have the effect of revocation. The intention to revoke is necessary to constitute the effective revocation of a will; but it must be demonstrated by one of the acts contemplated by the statute. As Woodworth, J., said, in Don v. Brown, 4 Cow. 490 , “ Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation.” The same learned judge said in that case: “ The rule is that if the testator lets the will stand until he dies, it is his will; if he does not suffer it to do so, it is not his will.” (And see Goodright v. Glazier, 4 Burr, 2512, 2514; Pemberton v. Pemberton, 13 Ves. Jr. 290.)

The finding of fact by the referee, that presumably the testator would have altered his will had he known of his grandson’s murderous intent, cannot affect the question. We may concede it to the fullest extent; but still the cardinal objection is undisposed of; that the making and the revocation of a will are purely matters of statutory regulation, by which the court is bound in the determination of -questions relating to these acts.

Two cases, in this State and in Kentucky, at an early day, seem to me to be much in point. Gains v. Gains (2 A. K. Marshal, 190), was decided by the Kentucky court ■of appeals in 1820. It was there urged that the testator intended to have destroyed his will and that he was forcibly

p. 470
prevented from doing so by the defendant in error or devisee, and it was insisted that the will, though not expressly,, was thereby virtually revoked. The court held, as the act concerning wills prescribed the manner in which a will-might be revoked, that as none of the acts evidencing revocation were done, the intention could not be substituted for the act. In that case the will was snatched away and forcibly retained.

In 1854 Surrogate Bbadfoed, whose opinions are entitled to the highest consideration, decided the case of Leaycraft v. Simmons ( 3 Bradf. 35 ). In that case the testator, a man-of eighty-nine years of age, desired to make a codicil to his; will, in order to enlarge the provisions for his daughter. His son, having the custody of the instrument, and the one to be prejudiced by the change, refused to produce the will at testator’s request, for the purpose of alteration.

The learned surrogate refers to the provisions of the civil law of such and other cases of unworthy conduct in the heir or legatee, and says, “ Our statute has undertaken to prescribe the mede in which wills can be revoked (citing the-statutory provision). This is the law by which I am governed in passing upon questions touching the revocation of' wills. The whole of this subject is now regulated by statute- and mere intention to revoke, however well authenticated, or however defeated, is not sufficient.” And he held that the will must be admitted to probate.

I may refer also to a case in the Pennsylvania courts.. In that State the statute prescribed the mode for repealing or altering a will, and in Clingan v. Mictheltree (31 Pa. State Rep. 25), the supreme court of the State held, where-a will was kept from destruction by the fraud and misrepresentation of the devisee, that to declare it cancelled as; against the fraudulent party would be to enlarge the statute.

I cannot find any support for the argument that the-respondent’s succession to the property should be avoided because of his criminal act, when the laws are silent. Pub-lip policy does not demand it; for the demands of public.

p. 471
policy are satisfied by the proper execution of the laws and the punishment of the crime. There has been no convention between the testator and his legatee; nor is there any such contractual element, in such a disposition of property by a testator, as to impose or imply conditions in the legatee. The appellant’s argument practically amounts to this: that as the legatee has been guilty of a crime, by the commission of which he is placed in . a position to sooner receive the benefits of the testamentary provision, his rights to the property should be forfeited and he should be divested of his estate. To allow their argument to prevail would involve the diversion by the court of the testator’s estate into the hands of the persons, whom, possibly enough, for all we know, the testator might not have chosen or desired as its recipients. Practically the court is asked to make another will for the testator. The laws do not warrant this judicial action, and mere presumption would not be strong enough to sustain it.

But more than this, to concede the appellants’ views would involve the imposition of an additional punishment or penalty upon the respondent. What power or warrant have the courts to add to the respondent’s penalties by depriving him of property ? The law has punished him for his crime, and we may not say that it was an insufficient punishment. In the trial and punishment of the respondent the law has vindicated itself for the outrage which he committed, and further judicial utterance upon the subject of punishment or deprivation of rights is barred. We may not in the language of the court in People v. Thornton ( 25 Hun, 456 ), “ enhance the pains, penalties and forfeitures provided by law for the punishment of crime.”

The judgment should be affirmed with costs.

Danfobth, J., concurred.

.Judgment reversed, etc.

p. 472
NOTE ON EQUITABLE EXCEPTIONS TO THE UNIFORMITY OF THE LAW, AND ON ACTIONS TO ENJOIN THE ENFORCEMENT OF A STATUTORY OR OTHER LEGAL RIGHT.

Equity may take a case out of the law.] The doubts which have been expressed as to the soundness of the decision in the text, will be removed, or at least modified, by observing the frame of the action and the nature of the relief.

The action was not ejectment to recover the property, but to enjoin the defendant from claiming the property ; it was not to nullify the statute nor to interpolate a judicial exception into it, but to obtain a decree that in this case it was inequitable to allow the defendant to take advantage of the statute of wills and of the will made under it. The relief sought was injunctive in its nature. The effect of the decision is that the power of a court of equity to forbid the inequitable enforcement of a clear legal right, is not extinct. In this case the equity is so clear, that the result, however unexpected, has commended itself to the general sense of justice ; and the judgment has already been followed as a precedent in an insurance case. (Altgeld, J., 22 Chicago Leg. News, 96.)

In fact, this power is as old as the origin of equity itself. The harshness of common law rules has now been so far mitigated, largely in consequence of a long course of such equitable interference, that equitable interference has of late been chiefly engaged in relieving against legal procedure, or in cases to which legal procedure does not reach. But the earlier English chancery jurisprudence gives many instances of the intervention of equity against allowing an indisputable rule of law to be invoked or enforced by a particular individual. (See cases 1-6 below.)

If the right of the defendant rested upon a contract there would be no question of the power of equity to prevent his asserting an indisputable provision of the contract, by reason of his own wrongful act, in making a case within the terms of the contract.

The fact that the right is defined by statute does not put a fraud upon the law beyond the power of the court. Even where a right is created by the statute, the court can refuse to sanction an enforcement of the right by one claiming in fraud of the statute. Thus, if one person induces another to violate a penal statute, can he maintain an action as a common informer to recover the penalty to his own use ? If he cannot, it is not because the court may alter the statute, nor even upon the theory that it may create an exception, but because it may

p. 473
hold a particular person to have precluded himself from invoking the statute. It is upon this principle that a wife who induced her husband to get intoxicated cannot recover under the civil damage act for the resulting injury to her means of support, though there be no exception in the statute.

Action to make an equitable exception to the operation of the law.] That which may appear new in this case, to many of my readers, even after a careful consideration of these principles, is that here the wrong-doer does not appear to have been affirmatively invoking the law, but was apparently 'clothed with title by the law, and with possession under the law, and the plaintiff took the initiative in attack. But plaintiff, too, alleged what presumptively would have been a title and a right of possession, but for defendant’s fraudulent and wrongful act, and showed that the obstacle to his possession was the device of the defendant, by his own act in fraud of the law, to secure the apparent legal title and thereby the possession. It was the sound judgment of the plaintiff’s -advisers, in framing the action in this aspect, that secured for it the sanction of equitable jurisdiction.

These considerations are worthy of notice here because the soundness of the decision does not depend on the heinousness of the defendant’s acts in this rare instance of a legatee murdering a testator, but upon a general principle which sanctions equitable defences against a general legal rule, and which may yet sustain many equitable actions of the first impression.

Notes of Oases.

1. Raw ®. Pote, 2 Tern. 239. A, on his marriage with B, settled lands for her jointure, which were subject to an entail; 0, brother of A, was privy to the entail, ingrossed the jointure deed, had the deed of entail in his custody and concealed it. A, the husband, devised the inheritance of the premises to J. S., and afterwards died without issue, and J. S. married the widow. C, the brother, set up the entail and 'brought an ejectment. J. S. and wife bring a bill to be relieved against this deed of entail. Decreed the wife to hold her jointure. In this case the brother held the legal title, but the court gave the land to the widow.

2. Hobbs ®. Norton, 1 Vern. 136 [cited by Story], Issue in tail under a settlement encouraged a stranger to purchase an annuity of the younger son given by the father’s will. Decreed to confirm the annuity, although the testimony shows that the issue did not know of the settlement when he encouraged the purchase. In rendering the decision the Lord Keeper said, “ It was a negligent thing in him not to inform himself of his own title, that thereby he might have informed the purchaser of it”

p. 474
3. Thynn v. Thynn, 1 Vern. 296. A man made his will, and his wife executrix. The son afterwards prevailed on his mother to get the father to make a new will and to name him executor, he promising to be a trustee only for his mother. He afterwards set up for himself and denied the trust. Trust decreed notwithstanding the statute of frauds.

4. Keech v. Sandford, 1 Lead. Cas. in Eq. 46. A person being possessed of the lease of the profits of a market, devised his estate to a. trustee in trust for the infant. Before the expiration of the term, the-trustee applied to the lessor for a renewal for the benefit of the infant, which he refused. Here was clear proof of the refusal to renew for the benefit of the infant, on which the trustee gets a lease made to. himself—not with trust funds, but with, his own proper money. 3eldy that the trustee held the lease in trust for the infant.

5. Dalton v. Poole, 1 Vent. 318. An heir-at-law by parol promised his father to pay his sisters’ portions, if he would not direct timber to be felled to raise them; although discharged at law, he-was in equity deemed liable to pay them in the same way as if they had been charged on the land.

6. Story, in summing up the result of the cases says: (1 Story’s Eq. Juris. 64) “ There are cases in which equity will control the legal title of an heir, general or special, when it would be deemed absolute at law; and in which, therefore, so far from following the law IT OPENLY ABANDONS IT.”

7. Cases of the fw'st impression.) The two conflicting maxims on this subject are as follows: (1) There is no wrong without a remedy. The Statute of Westminster 2, 13 Edw. 1 , c. 24 ; Winsmore v. Greenbank, Wittes, 577, Willes, C. J.; Chapman v. Pickersgill, 2 Wilson, 145; Ashby ®. White, 2 Ld. Raymond, 938 ; Pasley r. Freeman, 3 T. R. 51, 63 ; Selwin’s N. P. 1062; Rindge v. Baker, 57 N. Y. 209 , 225 ; Tates v. Joyce, 11 Johns. 154 .

(2). The fact that there is no precedent for an action, when there must have been many occasions for bringing it, if maintainable, is a strong argument against it. Anthony u. Slaid, 11 Mete. (Mass.) 290; Wellington v. Small, 3 Cush. (Mass.) 145 ; Seehorn v. Darwin, 1 Const. S. C. 196 ; Webb v. Rome, etc. R. R. Co., 49 M. Y. 420; Winterbottom v. Wright, 10 M. & W. 109.

Cases cited