Riggs v. Palmer

On the 13th day of August 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 tinder age, unmarried and without any issue. The testator at. the date of his will owned a farm and considerable personal property. lie 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 lieu 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 lie might prevent his

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 he 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 ease liad been present, to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot he doubted that they 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 letterl of the statute is not within the statute, unless it he within tliej intention of the makers. The writers of laws do not always express their intention perfectly, hut either exceed it or fall rational conjectures only, and this is callee t.ion; andliutherforth, in his Institutes (p. 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 short of it, so that judges are to collect

Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for qui haeret i/n litera, haeret in corbice. In Bacon’s Abridgment (Statutes I, 5); Puffendorf (book 5, chapter 12), Rutherforth (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 a 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 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 cf a legislative act is restrained by an equitable construction; in others it is enlarged; in others th«|' construction is contrary to the letter. The equitable constructs on ” which restrains the .letter of a statute is defined by Aristotle,, as frequently quoted, in this manner: Aequitas est correctio login 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 Black

There was a statute in Bologna 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 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. Ho 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

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. M’Pherson, 1 H. L. Cas. 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

Under the civil law evolved from the general principles of natural law and justice by many generations of jurisconsults, philosophers and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered. (Domat, part 2, book 1, tit. 1, § 3; Code Napoleon, § 727; Maclceldy’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 revisers and law-makers were familiar with the civil law, and they did not 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 tliis property as heir. Just beforeJhfi murder he wasmot an heir, and it was not certain that he ever would be. He ñííghPhave died before his grandfather, or might have been disinherited by him. He made himself an heir by the murder, and he seeks to take propértyaiñflñPfm 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 anv

Our attention is called to Owens v. Owens ( 100 N. C. 240 ), as 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 clear beyond their purpose to make provision for a wife who by her own crime makes herself a "widow and willfully and intentionally deprives herself of the support and protection of her husband. As she might have died before him, aud 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.

The facts found entitled the plaintiffs to the relief they seek. -The error of the referee Avas in his conclusion of laAV. Instead of granting a ndw trial, therefore, T 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 the 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 folloAvs: 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 Avill to Elmer be declared

This appeal presents an extraordinary state of facts, and the case, 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 for the purpose of having those provisions of the will in the respondent’s favor canceled 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 his 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 affected 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_rigitLrules.of law, which have been established by the legislature, and within the limits of which the determ

The appellants’ ligament '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 lie has been convicted of killing, or

I concede that rules of law, which annul testamentary provision 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.

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. 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 Dan 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

[ The finding of fact of the referee, that, presumably, the testator would have altered his will, had he known of his grand-l son’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 Marshall, 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 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 Bradford, 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 for such and other cases of unworthy conduct in the heir or legatee, and says, “ our statute has undértaken to prescribe the mode 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 a mere intention to

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. Public policy does' not demand it, for the demands of public policy are satisfied by the proper execution of the laws and the piuiishment 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 appellants’ argument practically amounts to this: That as the legatee has been guilty of a crime, by the commission of which lie 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 testutor’s estate into the hands of persons, whom, possibly enough, for all we know, the testator might not liave 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 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 punishnient of the respondent the law has

The judgment should be affirmed, with costs. •

All concur with Earl, j/, except Gray, J., who reads dissenting opinion, and Danfobth, J., concurring.

Judgment in accordance with the prevailing opinion.