Clinard, David M.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 33 | Number 4 Article 216-1-1955Descent and Distribution -- Homicide -- Effect onGuilty Party's Right to InheritDavid M. ClinardFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationDavid M. Clinard, Descent and Distribution -- Homicide -- Effect on Guilty Party's Right to Inherit, 33 N.C. L. Rev. 702 (1955).Available at: http://scholarship.law.unc.edu/nclr/vol33/iss4/21NORTH CAROLINA LAW REVIEWare usually said to apply,52 and by relying on a similar case in which acourt said that a minor's residence was where his domicile was, sincedomicile includes residence.53The important thing to be remembered is that the North Carolinacourt will look to the nature of the subject matter, the purpose of thestatute or other instrument, and the context in which the word is usedin determining what "residence" means. An equally important corollaryis that cases interpreting the word "residence" in one connection do notnecessarily indicate the way in which that word will be interpreted whenit arises in another connection.F. KENT BURNS.Descent and Distribution-Homicide-Effect on GuiltyParty's Right to InheritA husband was acquitted of the unlawful homicide of his wife, whomhe killed while shooting at a man he suspected of being her lover. In asubsequent suit by her son and her administrator for a declaratory judg-ment debarring him from inheriting from his wife, the husband's rightto inherit was declared unchanged by the mere fact of the homicide.1 Astatute2 which provided that no one convicted of "unlawfully killing"another should benefit from the death had no application, since the hus-band had been acquitted of any unlawful killing.The theory of the court in allowing the husband to inherit was thatthe intent necessary to preclude a killer from benefiting by the death ofhis victim is more than a mere general criminal intent, or an intent di-rected at a third person. It must be an intent to kill unlawfully theperson by whose death the killer seeks to benefit. The evidence showedthat such intent had been absent in this case.The problem of whether one who kills an ancestor, a testator, or ajoint tenant, may acquire property from his victim, thus benefiting byvirtue of his own homicidal act, has long been the subject of judicial andlegislative discord.3 A brief look at some of the decisions and statutesmay aid in understanding the problems raised by the principal case.In the absence of statutes directly in point the courts have, in general,fallen into one of three groups:" Dykstra and Dykstra, supra note 46."' Central Manufacturers Mutual Ins. Co. v. Friedman, 213 Ark. 9, 12, 209S. W. 2d 102, 103, 1 A. L. R. 2d 557, 559, 560 (1948) : "The domicile of Bennowas with his father ... Domicile includes residence. . .1 Legette v. Smith, 85 S. E. 2d 576 (S. C. 1955).* S. C. CODE § 19-5 (1952).* See generally, 16 A-m. Jur., Desecent and Distribution §§ 74-78 (1938) ; Note,39 A. L. R_ 2d 477 (1955) ; 3 BOGERT, TRUSTS AND TRUSTEES § 477 (1946) ; Wade,Acquisition of Property by Willfully Killing Another-A Statutory Solution, 49HARv. L. R. 715 (1936) ; AmEs, LECTURES ON LEGAL HisToRy 310-312 (1913).[Vol. 33NOTES AND COMMENTS(1) Those courts which have allowed inheritance despite the fact thatthe property descends by virtue of the heir's felonious killing of the ances-tor have done so on the theory that the statutes of wills and of descentand distribution are clear and unambiguous, and make no provision forsuch a situation, and that, until the legislature speaks again and deprivesa killer of his right to inherit, the courts are powerless to prevent theproperty from going directly to the felon.4  In support of this view theargument has been advanced that depriving an heir of his right to theproperty would be a forfeiture of estate upon conviction of a crime, inviolation of express constitutional provisions.5(2) Courts which have refused to allow the killer to benefit by his actinsist that statutes of wills and descent were passed subject to the com-mon-law doctrine that one may not profit by his own wrong, and thatcourts must read this principle into the statutes as being the intent of thelegislature.6 In answer to the contention that denying the right of in-heritance to the killer is an unconstitutional forfeiture of his estate, thesecourts point out that the estate never vested in the killer; thus, that thereis no forfeiture, but a mere exclusion of the killer from the group entitledto inherit.7(3) Still a third group of courts has held that the statutes of descentand distribution control to the extent that the legal title passes to thekiller immediately upon the death of his victim, but that, in keepingwith principles of equity and good conscience, he becomes a constructivetrustee, or holder of the bare legal title, for the benefit of those who' Carpenter's Estate, 170 Pa. 203, 32 Atl. 637 (1895) ; Crumley v. Hall, 202 Ga.588, 53 S. E. 2d 646 (1947) ; Deem v. Milliken, 6 Ohio C. C. 357 (1892), aff'd, 53Ohio St. 668, 44 N. E. 1134 (1895) ; Eversole v. Eversole, 169 Ky. 793, 185 S. W.487 (1916) ; Gollnik v. Mengel, 112 Minn. 349, 128 N. W. 292 (1910) ; Hagan v.Cone, 21 Ga. App. 416, 94 S. E. 602 (1917) ; Hill v. Noland, 149 S. W. 288, Tex.Civ. App. (1912); Holloway v. McCormick, 41 Okla. 1, 136 Pac. 1111 (1913);Owens v. Owens, 100 N. C. 240, 6 S. E. 794 (1888) ; McAllister v. Fair, 72 Kan.533, 84 Pac. 112 (1906); Re Duncan's Estates, 40 Wash. 2d 850, 246 P. 2d 445(1952); Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935 (1894); Wall v.Pfanschmidt, 265 Ill. 180, 106 N. E. 785 (1914) ; Wilson v. Randolph, 50 Nev. 371,261 Pac. 654, rehearing denied, 50 Nev. 440, 264 Pac. 697 (1927).Carpenter's Estate, 170 Pa. 203, 32 Atl. 637 (1895) ; Owens v. Owens, 100N. C. 240, 6 S. E. 794 (1888); Wall v. Pfanschmidt, 265 Ill. 180, 106 N. E. 785(1914).0 Garwols v. Bankers' Trust Co., 251 Mich. 420, 232 N. W. 239 (1930) ; in reWilkin's Estate, 192 Wis. 111, 211 N. W. 652 (1927); McDonald v. Mutual LifeIns. Co., 178 Iowa 863, 160 N. W. 289 (1916) (insurance case) ; Perry v. Straw-bridge, 209 Mo. 621, 108 S. W. 641 (1908) ; Price v. Hitaffer, 164 Md. 505, 165Atl. 470 (1933) ; Re Spark's Estate, 172 Misc. 642, 15 N. Y. S. 2d 926 (Surr. Ct.1939) ; Re Tyler's Estate, 140 Wash. 679, 250 Pac. 456 (1926) (apparently over-ruled by Re Duncan's Estates, supra note 4) ; Riggs v. Palmer, 115 N. Y. 506,22 N. E. 188 (1889) ; Weaver v. Hollis, 247 Ala. 57, 22 So. 2d 525 (1945).7 Garwols v. Bankers' Trust Co., 251 Mich. 420, 232 N. W. 239 (1930) ; Perry v.Strawbridge, 209 Mo. 621, 108 S. W. 641 (1908) ; Weaver v. Hollis, 247 Ala. 57,22 So. 2d 525 (1945).1955]NORTH CAROLINA LAW REVIEWwould have taken had he not been living.8 The North Carolina courthas unqualifiedly allied itself with this view.9The decision in the principal case points up the tendency of courtsin jurisdictions which, by virtue of judicial construction or statutorydirective, have denied some killers the right to inherit, to inquire intothe "intent" of the killer in determining whether or not he shall be al-lowed to benefit by the death of his victim. In the principal case theSouth Carolina court refused to apply the criminal law theory that"malice follows the bullet," saying: "But to invoke this fiction of thecriminal law against the right of inheritance in a civil case is, it seems tous, extending the common law principle to encompass a factual situationthat was never intended to be within its purview."1 0  The husbanddirected no malice toward his wife; thus, he did not forfeit his rights asan heir.That courts consider the killer's intent in determining his right toinherit is made apparent in many ways. Clearly, no court would denyinheritance to one who kills an ancestor negligently-who kills in thecommission of a mere tortious wrong," while, at the other extreme, acourt which denies the right to inherit to any killer would naturally denyit to one convicted of murder in the first degree. It has been said thatif the killing was justified, as by self-defense, it would not preclude in-heritance by the killer.' 2 Killers who were insane at the time they com-mitted the homicide have been held capable of inheriting.'3  The theoryhere seems to be that unless the killer has a inens rea, the common lawor statutory doctrine which precludes him from inheriting is not justi-fiable.14  One court refused to deny a husband the right to inherit fromhis wife, whom he killed while shooting at her alleged paramour, on thetheory that he did not kill with the intent to inherit from his wife. 1'As a consequence of the refusal of courts in group (1) to "read into"Neiman v. Hurff, 11 N. J. 55, 93 A. 2d 345 (1952) (joint ownership of stock) ;Whitney v. Lott, 134 N. J. Eq. 596, 36 A. 2d 888 (Ch. 1944) ; Sherman v. Weber,113 N. 3. Eq. 45, 167 Atl. 517 (Ch. 1933); Ellerson v. Wescott, 148 N. Y. 149,42 N. E. 540 (1896) ; Van Alstyne v. Tuffy, 103 Misc. 455, 169 N. Y. S. 173 (Sup.Ct. 1918)." Garner v. Phillips, 229 N. C. 160, 47 S. E. 2d 845 (1948) ; Bryant v. Bryant,193 N. C. 372, 137 S. E. 188 (1927). See also, advocating this view REsTATEMENT,RESTITUTION § 187 (1937)."0 Legette v. Smith, 85 S. E. 2d 576, 580 (S. C. 1955)." In re Houghton, [1915] 2 Ch. 173, 176, where the court said: "Hitherto it hasnever been suggested that there is any such incapacity or disqualification, where theperson guilty of the act of slaying the deceased was innocent of any crime, as wherethe deceased was killed accidently or by misadventure, or his death was held to bea case of justifiable homicide."2 Floyd v. Franklin, 251 Ala. 15, 36 So. 2d 234 (1948)." It re Houghton, supra note 11 ; Eisenhardt v. Siegel, 343 Mo. 22, 119 S. W.2d 810 (1938) ; Petrillo v. Hanley, 29 Pa. D. & C. 512 (1936) ; In re Hoffman'sEstate, 39 Pa. D. & C. 208 (1940) ; In re Estate of Mason, 31 D. L. R. 305 (1916)."In re Pitts [1931] 1 Ch. 546." In re Wolf, 88 Misc. 433, 150 N. Y. S. 738 (Surr. Ct. 1914).[Vol. 33NOTES AND COMMENTSthe statutes of descent and distribution any preclusion of murderers frominheriting, statutes have been passed in many jurisdictions in an effortto remedy this situation. 16 These statutes, however, are far from uni-form. Almost as many different statutes have been enacted as thereare ways of describing the act which will bring about disinheritance ofthe killer. Indirectly, they all have reference to the intent or state ofmind of the killer. Some hold that only a "murder" is sufficiently repre-hensible to deprive the killer of his inheritance.' 7 Others refer to "mur-der in the first or second degree."' s Still others apply only when therehas been a "felonious"' 19 or "willful"'20 causing of death, or an "unlaw-ful"'21 or "criminal causing or procuring of death. 2 2  Several statutesextend the doctrine beyond the actual act of killing, and disinherit onewho "conspires" 23 to kill, or "aids and abets"'24 the killing. One statutecomes into play only where the killing has been done with the intentto obtain the property of the person killed.2 5 Whether or not one whocommits manslaughter is prevented from inheriting the property of thedeceased depends entirely on the wording of the individual statute . 2The North Carolina statute on this point is even more limited thanmost, applying only to husband-wife homicides.2 7  The North Carolinacourt avoided the inequitable consequences of a strict construction ofthe statute of descent in Bryant v. Bryant28 and Garner v. Phillips9 by1 See 3 BOGERT, TRUSTS AND TRUSTEES § 478 (1946), where these statutes arecatalogued., T CAL. PROB. CODE § 258 (1949).1 COLO. REV. STAT. ANN. §152-2-13 (1953) ; PA. STAT. ANN., tit. 20 §§ 136, 244(1950)." N. D. REv. CODE § 56-0423 (1943).'0 Miss. CODE ANN. § 672 (1942)."1 S. C. CODE § 19-5 (1952)."'OKLA. STAT. tit. 84, § 231 (1951)."' NEB. REv. STAT. §§ 30-119 and 30-120 (1943); KAN. GEN. STAT. § 59-513(1949).2" IND. ANN. STAT. § 6-212 (1953).2' VA. CODE § 64-18 (1950). This statute was strictly construed in Ward v.Ward, 174 Va. 331, 6 S. E. 2d 664 (1940) and Blanks v. Jiggetts, 192 Va. 337, 64S. E. 2d 809 (1951).2 Thus, in Strickland v. Wysowatcky, 250 P. 2d 199 (Colo., 1952), the courtheld that one who was convicted of voluntary manslaughter of his wife was notprecluded from inheriting from her by a statute (CoLo. REV. STAT. ANN. § 152-2-13(1953)) which provided that "any person convicted of murder in the first or seconddegree . .. shall not take . . . any of the estate of deceased." In Hamblin v.Marchant, 103 Kan. 508, 175 Jac. 678 (1918), where the statute denied the right ofinheritance in the decedent's estate to anyone convicted of "killing" decedent, it washeld that a wife who was convicted of manslaughter in the third degree was pre-cluded from inheritance.21 N. C. GEN. STAT. §§ 28-10, 30-4, 52-19 (1953). Since the North Carolinastatutes deny the right of one spouse to succeed to the property of the other whomhe has "feloniously slain," and since manslaughter, both voluntary and involuntary,is a felony in North Carolina (see State v. Dunn, 208 N. C. 333, 180 S. E. 708(1935)), it seems that, under the statute, even manslaughter would preclude onespouse's inheriting from the other.-s 193 N. C. 372, 137 S. E. 188 (1927). Husband and wife were tenants by theentirety. Husband killed wife and the court denied him the benefits of the land on19551NORTH CAROLINA LAW REVIEWthe device of the constructive trust. But, necessarily, the law in thisarea is still in a nebulous state, since these decisions have set out the lawin only two of a myriad of possible fact situations. Inevitably thesesituations will arise, and even granting that the court will feel justifiedin applying a constructive trust in every case, a comprehensive statutewould seem vastly preferable. The result would be a much more pre-dictable law in this area, relieving the necessity for litigation and foremploying such a legal fiction each time an even slightly different set offacts arises.DAVID M. CLINARD.Trade Regulation-Exclusive Dealing Arrangements-Effect onCompetition Required by Section 3 of the Clayton ActCongress enacted Section 3 of the Clayton Act' in 1914. The intentof Congress was to apply a narrower standard of legality to exclusivedealing arrangements than was employed by the Sherman Act rule ofreason approach.2 The Act3 was designed to eliminate unreasonablyrestrictive practices in their incipiency.4Section 3 covers both tying clauses and exclusive dealing contracts.5"equitable principles," expressly reserving the question of whether or not N. C.GEN. STAT. § 28-10 (1953) applied.2- 229 N. C. 160, 47 S. E. 2d 845 (1948). Son killed both parents. This casewas clearly not within N. C. GEN. STAT. §§ 28-10, 30-4, or 52-19 (1953).138 STAT. 731 (1914), 15 U. S. C. §14 (1946).'In Chicago Board of Trade v. United States, 246 U. S. 231, 238 (1918).Justice Brandeis stated the rule of reason as follows: "The true test of legality iswhether the restraint imposed is such as merely regulates and perhaps thereby pro-motes competition or whether it is such as may suppress or even destroy competi-tion. To determine that question the court must ordinarily consider the facts pecu-liar to the business to which the restraint is applied; its condition before and afterthe restraint was imposed; the nature of the restraint and its effect, actual orprobable. The history of the restraint, the evil believed to exist, the reason foradopting the particular remedy, the purpose or end sought to be attained, are allrelevant facts."238 STAT. 731 (1914), 15 U. S. C. § 14 (1946). Section 3 of the Clayton Actprovides that: "It shall be unlawful for any person engaged in commerce, in thecourse of such commerce, to lease or make a sale or contract for sale of goods...whether patented or unpatented, for use, consumption, or resale . .. on the condi-tion, agreement, or understanding that the lessee or purchaser thereof shall not useor deal in the goods . . . of a competitor or competitors of the lessor or seller, wherethe effect of such lease, sale, or contract for sale or such condition, agreement, orunderstanding may be to substantially lessen competition or tend to create a monop-oly in any line of commerce."' Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346, 356 (1922):"The Clayton Act sought to reach the agreements embraced within its sphere intheir incipiency, and in the section under consideration to determine their legalityby specific tests of its own which declared illegal contracts of sale made upon theagreement or understanding that the purchaser shall not deal in the goods of acompetitor or competitors of the seller, which may 'substantially lessen competitionor tend to create a monopoly.'"' North Carolina has a statute declaring such practices illegal per se, since thereis no qualifying clause therein. N. C. GEN. STAT. § 75-5(b) (Supp. 1953). Seealso Note, 29 N. C. L. REv. 316 (1951).[Vol. 33

Descent and Distribution -- Homicide -- Effect on Guilty Party\u27s Right to Inherit

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Descent and Distribution -- Homicide -- Effect on Guilty Party\u27s Right to Inherit

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