Baysic GALLIMORE, Appellant, v. Doris M. WASHINGTON, et al., Appellees.
No. 94-CV-814.
District of Columbia Court of Appeals.
Argued May 30, 1995. Decided Oct. 23, 1995.
Judge Rankin concluded that ACIC failed to demonstrate that its motion to vacate was based upon what was truly “newly discovered evidence” that could not have been discovered by ACIC through due diligence prior to the issuance of the court‘s order awarding fees. In finding that the evidence was in fact discoverable, Judge Rankin reasoned that such information should have been discovered by ACIC‘s lawyers during the course of litigating the fee award. The trial court found that ACIC undertook an “extensive investigation” and “vigorously investigated the facts underlying the representation of Ross, Marsh....” Judge Rankin was unwilling, in the context of having presided over such a hotly contested hearing relating to the award of attorneys’ fees, to credit at face value Pooya‘s letter to ACIC suggesting that Ross, Marsh no longer represented him. Notably absent from the record before Judge Rankin was any indication that Pooya had ever informed Ross, Marsh that their services no longer were required as of September, 1991.
Additionally, Judge Rankin found that Pooya‘s retainer agreement with Ross, Marsh in November, 1990 conferred broad authority to represent him in litigation against ACIC,12 and that there was no evidence of contrary instructions from Pooya to his lawyers purporting to limit this grant of authority. Indeed, the retaining of Ross, Marsh to represent Pooya in the declaratory judgment action was not affected by substitution of counsel for Ross, Marsh in the tort action.
IV.
Having found that the grant of summary judgment was correct and that the denial of the motion to vacate was not an abuse of discretion, both orders are
Affirmed.
Matthew A. Kane, Bethesda, MD, for appellees.
Before SCHWELB and RUIZ, Associate Judges, and MACK, Senior Judge.
Opinion for the court by Associate Judge RUIZ.
Dissenting opinion by Associate Judge SCHWELB at p. 1211.
RUIZ, Associate Judge:
Appellant Baysic Gallimore was convicted of murdering appellees’ mother, Annie Mae Washington. At the time of her death, Washington and Gallimore were joint owners of an improved lot in the District of Columbia. After Gallimore‘s conviction, appellees brought this action to quiet title, seeking a judgment declaring that they exclusively own the lot as tenants in common, free of claims by Gallimore. On cross-motions for summary judgment, the trial court granted appellees the relief they sought, holding that because Gallimore was convicted of murdering his joint tenant,
We reverse. We need not decide whether
I.
The relevant facts are undisputed. Washington was still married (separated but never divorced) to someone else when she participated in a marriage ceremony with Gallimore and they began to live together as husband and wife. About a year later, Washington and Gallimore purchased an improved lot on Seaton Street in the District of Columbia as tenants by the entirety. The parties agree, however, that because Washington and Gallimore were not married they could not take the property as tenants by the entirety and that the estate they received was a joint
About nine years after Gallimore and Washington purchased the Seaton Street property and two years after they had stopped living together, Washington died of wounds she received during a brutal assault. A circuit court in Maryland convicted Gallimore of the murder and sentenced him to life imprisonment. After his conviction became final, appellees brought this action for declaratory judgment, seeking to quiet title to the Seaton Street property in themselves. The trial court granted appellees the relief they sought and Gallimore filed this timely appeal.
II.
Appellees rest their claim that Gallimore forfeited to them his interest in the jointly owned Seaton Street property upon
Given the foregoing scheme, there are four questions which we could conceivably have to answer: (1) Does
Before addressing the legal arguments, it is helpful to describe the property interest known as joint tenancy with right of survivorship. A joint tenant with right of survivorship has essentially two interests: (i) a present right to possession of the property in its entirety and an undivided portion of its profits, and the right to alienate that present right during her lifetime, and (ii) a future right to the whole property contingent on her outliving her joint tenant and the joint tenancy not being severed during their lifetimes. The concept is that upon the death of one of two joint tenants, there is no transfer of the decedent‘s future interest to the survivor; rather, the future interest of the deceased ceases to exist, the threat of severance by the other joint tenant is eliminated, and the present interest of the surviving joint tenant
A.
Appellees focus their argument on the second unnumbered paragraph of
We question whether the statute, read as a whole, encompasses rights of survivorship. The first unnumbered paragraph of subsection (a) does not list rights of survivorship as among the means of succession covered by the subsection, nor does it contain general language that would permit us to read in such rights.3 Rather than state that the section applies to all property interests, the statute specifies certain future estates, namely reversions, remainders and executory devises. The statute also specifies certain means of receiving property, by inheritance, distribution or bequest, all of which imply a transfer from one person to another, and which do not apply to the right of survivorship.
Construing the scope to be so limited is consistent with the origin of
The 1901 Code was the result of decades of effort on the part of members of the bench and bar and citizenry of the District of Columbia to replace the patchwork of English, Maryland and congressional statutes, and ordinances, acts and regulations adopted by the various forms of local government that Congress had prescribed for the District up to that time, which then formed the positive law of the District. See H.R.REP. No. 1017, 56th Cong., 1st Sess. 4 (1900); 34 CONG.REC. 2501 (1901) (statement of Sen. Pritchard); Walter S. Cox, Efforts to Obtain a Code of Laws for the District of Columbia, in 3 RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 115 (1900); Codification of District Laws, 26 WASH. L.RPTR. 786 (Dec. 15, 1898). A draft of the proposed code was first completed by Justice Walter S. Cox, of the Supreme Court of the
Unlike the partial codification in 1965, the 1901 Code was more than merely the enactment of a compilation of existing positive law. Both as proposed and as ultimately enacted, it changed in substantial and material ways both the judicial machinery and the legal rights of the citizens of the District. 34 CONG.REC. 3585 (1901) (statement of Rep. Babcock); Editorial, 26 WASH. L. RPTR. 801 (Dec. 22, 1898). The legislation did not, however, undertake to codify the common law of the District. H.R.REP. No. 1017, at 4. Instead, it expressly provided that the “common law ... shall remain in force except in so far as [it is] inconsistent with, or [is] replaced by, some provision of this code.” Act of Mar. 3, 1901, ch. 854, § 1, 31 Stat. 1189.
The substance of what became section 961 was not contained in Justice Cox‘s draft. See Cox, supra, at 374. It was added during the examination by local attorneys, judges, and members of the business community that occurred before its first submission to Congress in early 1899. See S. 5530, 55th Cong., 3d Sess. § 989, at 215 (Feb. 18, 1899). As of that time, only eight reported decisions—none from this jurisdiction—addressed the question whether a slayer was entitled to acquire the property of his victim as a result of the victim‘s death. Shellenberger v. Ransom, 41 Neb. 631, 59 N.W. 935 (1894) rev‘g on reh‘g 31 Neb. 61, 47 N.W. 700 (1891); Ellerson v. Westcott, 148 N.Y. 149, 42 N.E. 540 (1896); Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889); Owens v. Owens, 100 N.C. 240, 6 S.E. 794 (1888); Deem v. Millikin, 6 Ohio C.C. 357 (1892), aff‘d mem., 53 Ohio St. 668, 44 N.E. 1134 (1895); Carpenter‘s Estate, 170 Pa. 203, 32 A. 637 (1895); Lundy v. Lundy, 24 S.C.R. 650 (Can.1895); see also John W. Wade, Acquisition of Property by Wilfully Killing Another, 49 HARV.L.REV. 715, 717 & nn. 9, 10 & 12, 719 & n. 17, 729 & n. 54, 733 & n. 64 (1936); Owens, supra, 6 S.E. at 795 (noting that the court was unable to locate a single precedent).
In four of the six jurisdictions represented by the early cases, the court held that the slayer could succeed to the property. Wade, supra, at 717 & nn. 9, 10. The reason chiefly given in the cases holding that the slayer could take was that the legislature had determined how property should pass and the court could not overrule the statute. See Shellenberger, supra, 59 N.W. at 939 (“Neither the limitations of the civil law nor the prompting of humanity can be read into a statute from which, without question, they are absent, no matter how desirable the result to be attained may be.“); Owens, supra, 6 S.E. at 794 (“[W]hile the law gives the dower, and makes it paramount to the claims of creditors even, there is no provision for its forfeiture for crime, however heinous it may be, and even when the husband is its victim.“); Deem, supra, 6 Ohio C.C. at 361 (“The natural inference is that when the legislature incorporated the general rule into the statute and omitted the exception, they intended that there should be no exception to the rule of inheritance prescribed.“);
In light of the decisions in other states and the provisions of the proposed code, the drafters of the 1901 Code had just reason to be concerned about whether the courts would intervene to prevent the property of a decedent from passing to his slayer pursuant to statutory provision. The 1901 Code contained provisions relating not only to taking by descent and testament, but also concerning reversions and future interests. Act of Mar. 3, 1901, ch. 854, §§ 940-60, 1018-30, 1623-33, 31 Stat. 1342-44, 1351-52, 1433-34. Except for the inclusion of a provision such as section 961, it would have been arguable, in the then-prevailing legal climate, whether a slayer could be barred from coming into possession of his victim‘s property by virtue of a future estate or by will or descent.7
The 1901 Code did not, however, address rights of survivorship. Joint tenancy is mentioned only twice: Section 93 of the Code permitted partition by a court of property held by joint tenants. 31 Stat. 1203. This was the same as was permitted prior to the adoption of the Code by virtue of the
The foregoing is hardly conclusive on the question, however. It must be observed that section 961 also did not mention the rights of dower and estate by the curtesy, which were expressly provided for in the 1901 Code. §§ 1158-59, 1161-76, 31 Stat. 1375-77. If Owens, supra, which dealt with dower rights, were among the cases forming the impetus for adoption of section 961, it would seem curious that the drafters of section 961 omitted dower and estate by the curtesy from its coverage. Moreover, it is difficult to distinguish a remainder following a cotenant‘s life estate in her moiety, made contingent on the remainderman surviving that cotenant and neither tenant alienating her share or partitioning the property during the joint lifetimes of the cotenants, which would be covered by
We think, however, that there could be other sound reasons for not including the right of survivorship attendant to a joint tenancy within the sweep of section 961. The joint tenancy with right of survivorship is a convenient means to ensure that the legal title held by trustees or partners does not pass out of the hands of those to whom the property has been entrusted for management or other purposes. For example, the 1901 Code expressly recognized that trustees with management or other responsibilities could hold legal title to property for the benefit of others. § 1617, 31 Stat. 1432. Under section 952 of the Code, however, a trustee‘s legal title descended as though it were the equitable title. 31 Stat. 1343. The 1901 Code also recognized the use of the deed of trust to secure loans with real property and provided for right of survivorship among joint trustees on a deed of trust and the removal of trustees and appointment of new ones. §§ 533, 534, 538, 31 Stat. 1272-74. Similarly, we have recognized that “[f]or the common law partnership, both tenancy in common and joint tenancy possessed attributes that were satisfactory for holding title to partnership realty.” District of Columbia v. Riggs Nat‘l Bank, 335 A.2d 238, 242 (D.C.1975). Until the District‘s adoption of the Uniform Partnership Act in 1962, partnerships in the District were governed by the common law. Id. at 241.
In circumstances such as trust and partnership, where the legal and beneficial ownership may be divided, the rigid rule established by section 961 would not necessarily be the most convenient, expedient or just method of disposing of the interest held by a joint tenant murdered by his cotenant. By the same token, however, it is clear that a similarly rigid rule forbidding the courts from adjusting the passing of a murdered cotenant‘s interest is not appropriate and could not have been intended by the legislature. Thus, we hold that, assuming Congress did not cover rights of survivorship under section 961, Congress also did not intend to “replace” the common law with respect to the treatment of rights of survivorship.
B.
If the result under the statute, assuming it applies, and what we hold to be the common law would be the same on the facts of this case, then we need not decide whether
1.
The second unnumbered paragraph of
When Gallimore murdered Washington, he destroyed her future interest in the property; it would be impossible for Gallimore to take for himself Washington‘s future right which was contingent on his own death. Consequently, by its terms the second paragraph of the subsection does not apply to Washington‘s future right because it did not transfer at her death. It is only Washington‘s present right that passes, according to the terms of the paragraph, as though Gallimore had predeceased Washington. Therefore, under the statute, Washington‘s heirs would take her present alienable right to
Gallimore, as joint tenant, had the same package of present and future rights as Washington. With Washington‘s death, however, the future interest was determined and Gallimore‘s own future interest also ceased to exist. Therefore, even if application of
Appellees’ reliance on Napoleon, supra, is misplaced. In Napoleon, we had before us an interpleader action to determine who should receive the proceeds of a life insurance policy the deceased had purchased. By its terms, the policy was payable to the decedent‘s son, or, if he could not take the proceeds, to the decedent‘s estate. The decedent‘s son had been convicted of murdering his father and stepmother.
In holding that the son could not collect the insurance proceeds, we rested our decision on both the statute and the common law. Although we stated in Napoleon that the phrasing used in the second paragraph of subsection (a) indicated that the subsection is “to be interpreted broadly,” 455 A.2d at 902, we did not rest our decision entirely on the statute.9 Instead, we noted that the section did not repeal the common law and held that the common law barred one guilty of felonious homicide from receiving the proceeds of insurance on his victim. Id. at 903. Indeed,
2.
We now turn from the statutory provision to the common law, which “remain[s] in force except insofar as [it is] inconsistent with, or [is] replaced by, some provision of the 1901 Code.”
The common law policy that we discern is the same as the one many other courts have stated—to prevent a murderer from profiting from his wrong. See, e.g., Colton v. Wade, 80 A.2d 923, 925 (Del.Ch. 1951); Price v. Hitaffer, 164 Md. 505, 165 A. 470, 472 (1933); Bierbrauer v. Moran, 244 A.D. 87, 279 N.Y.S. 176, 179 (1935); Bryant, supra, 137 S.E. at 191; Hicks v. Boshears, 846 S.W.2d 812, 814 (Tenn.1993); Preston v. Chabot, 138 Vt. 170, 412 A.2d 930, 932 (1980); State ex rel. Miller v. Sencindiver, 166 W.Va. 355, 275 S.E.2d 10, 12 (1981). That policy is not inconsistent with
We do not, however, discern any common law policy to punish the murderer or compensate the decedent‘s heirs or next-of-kin by means of forfeiture of the murderer‘s property interest, either to the state or to
The cases and commentaries suggest three approaches to implementing the policy of denying the murderer any profit from his wrong. Section 188 of the Restatement (First) of Restitution provides:
Where two persons have an interest in property and the interest of one of them is enlarged by his murder of the other, to the extent to which it is enlarged he holds it upon a constructive trust for the estate of the other.
RESTATEMENT (FIRST) OF RESTITUTION § 188 (1937).
Although the black-letter statement might be read to divest the murderer of only his cotenant‘s moiety, the comment describes a harsher application that would forfeit the murderer‘s own moiety:
[W]here there are two joint tenants and the principle of survivorship is applicable if one of them murders the other, the murderer takes by survivorship the whole legal interest in the property, but he can be compelled to hold the entire interest upon a constructive trust for the estate of his co-tenant, except that he is entitled to one-half of the income for life.
RESTATEMENT (FIRST) OF RESTITUTION § 188 cmt. b (1937).
That result is dictated, in the view of the Restatement, by the principle that “where it is doubtful whether or not [the murderer] would have had an interest if he had not committed the murder, the chances are resolved against him.” Id. cmt. a.
In our view, the Restatement approach amounts to a forfeiture of the murderer‘s interest and goes beyond the common law‘s policy to prevent the murderer from enriching himself as a result of the murder. A possessory interest in fee and a possessory interest for life make a difference to a joint tenant personally only if the interest is liquidated during his lifetime—a fee interest will be worth substantially more than a mere life estate. A joint tenant may alienate his interest in the joint tenancy in fee at any time, thus severing the joint tenancy and destroying the rights of survivorship. 4A POWELL & ROHAN, supra note 2, ¶ 618[1][a], at 51-15 to -18; cf. Maynard v. Sutherland, 114 U.S.App.D.C. 169, 313 F.2d 560 (1962) (holding that joint tenant‘s execution of deed of trust in favor of cotenant did not effect severance). Thus, to use the Restatement‘s own words, since it is not “doubtful” that the murderer would have had the power to alienate during his lifetime a fee simple interest in his moiety in the absence of the murder, there is no chance to be resolved against the murderer. The Restatement comment cannot be justified on the policy ground we have adopted.
The second possibility suggested by the authorities is that the share of the murderer pass to the estate of the decedent unless the murderer obtains a severance of the estate or a partition. See Wade, supra, 49 HARV. L.REV. at 732 (proposing statutory solution). Wade‘s approach recognizes the ease with which a joint tenancy is severed and also tries to preserve the decedent‘s right of survivorship. Id. at 733. That approach has some superficial appeal, but upon close consideration it is not satisfactory.
The reason Wade‘s solution is unsatisfactory is that preservation of the right of survivorship can only affect the successors of the
The last alternative is that the joint tenancy be deemed severed and converted to a tenancy in common. That is the result that obtained in cases such as Johansen v. Pelton, 8 Cal.App.3d 625, 87 Cal.Rptr. 784, 788 (1970).13 We think that it is the result that best implements the policy principle that we find controlling in this case. By severing the joint tenancy and substituting a tenancy in common, Gallimore neither gains nor loses any present possessory interest in the Seaton Street property. It is, however, impossible to preserve precisely and divide equally all the incidents of the joint tenancy after one of the tenants has slain the other. As the court in Johansen noted,
The seeming anomaly that the part gained and the part lost cannot be reconciled is due to the fact that the inchoate rights—with survivorship—of the two joint tenants are in reality greater than the whole while the tenancy exists. Any solution must, therefore, at best be a compromise.... [We] conclude[] that a solution which recognizes the slayer‘s preslaying inchoate right to one-half the property is most equitable.
87 Cal.Rptr. at 791-92.
We join the Johansen court in finding that a severance of the murderer‘s and victim‘s joint tenancy is the solution that is most equitable, using the term in its nontechnical sense. Therefore, we hold that under the common law, the joint tenancy between Gallimore and Washington has been severed, con-
III.
Because the result is the same under the statute and the common law, there is no need to determine which applies in this case. The decision is reversed and the case remanded for further proceedings consistent with this opinion.
So ordered.
RUIZ
Associate Judge
SCHWELB, Associate Judge, dissenting:
This case requires us to consider two long-established legal maxims and, if possible, to find a way to accommodate them both. I refer to these maxims as Nos. I and II.
Maxim I, which sounds especially formidable in the Latin original,1 and which, while “deeply rooted in our jurisprudence,” remains very much alive today, see Farris v. Compton, 652 A.2d 49, 55 (D.C.1994), teaches us that “no man may take advantage of his own wrong.” Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959). Maxim II, also of ancient vintage, instructs that “[e]quity abhors forfeitures,” Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 203 (D.C.1991), and so, indeed, does the law. Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 367-68 (D.C. 1984).
In my opinion, the majority, seeking to vindicate Gallimore‘s rights by vigorously enforcing Maxim II, has significantly diluted the force of Maxim I. The trial judge, on the other hand, applied Maxim I with vigor, but believed (mistakenly, in my view), that Maxim II has no application. See Washington v. Gallimore, 122 Daily Wash.L.Rptr. 1125 (Super.Ct.D.C.1994).
The resolution of the case which is the most faithful to our statute and to underlying equitable principles, and which maintains the integrity of both maxims, can be found in the Restatement of Restitution, to which my colleagues accord less weight than it deserves. Gallimore should receive his share of the income from the property during his lifetime, but the entire property should pass to Ms. Washington‘s heirs after Gallimore‘s death.
I.
THE MAJORITY DILUTES MAXIM I
Notwithstanding the broad phrasing of the statute and the decision in Napoleon, my colleagues have decreed a partition of the jointly held property and have ordered the distribution to Gallimore of an undivided share of it.3 The trial judge explained effectively why Gallimore should not be rewarded in this way:
First and foremost, as mentioned above, awarding the Defendant an unrestricted one-half interest in the property allows the Defendant to take advantage of his own wrong. John Wade, [supra note 1], 49 HARV.L.REV. at 733.4 The right of survivorship in a joint tenancy “means that the joint tenant who survives the other cotenants takes the entire estate.” 4A RICHARD R. POWELL, POWELL ON REAL PROPERTY, ¶ 624[2], at 51-11 (1993). The Decedent‘s ability, or right, to survive the Defendant has been snuffed out at the hands of the Defendant. Granting the Defendant a one-half interest in the property ... rewards the Defendant for his act of murder by giving him a definite interest in the property.
The Defendant attempts to differentiate a joint tenancy from other interests explicitly covered by
D.C.Code § 19-320(a) by advancing the statutory purpose as being to “prevent the morally repugnant result of awarding a new property interest to a slayer based on his illicit act.” Defendant‘s Motion, p. 6. The Defendant claims that since a joint tenant possesses a one-half interest that is “easily severed at any time,” recognizing him as a tenant in common with a one-half interest does not award a new property interest.This Court wholly disagrees with the Defendant‘s conclusion. The Defendant opted to possess property as a joint tenant, running the risk that he could lose his entire interest should he predecease Annie Mae Washington. The Defendant never moved to partition the property. Awarding the Defendant a one-half interest as a tenant in common provides the Defendant with the certainty of some kind of an interest. The Court concludes that this new certainty, in contrast to the prior possibility, is, in fact, a new property interest. Washington, supra, 122 Daily Wash.L.Rptr. at 1133 (emphasis in original).
It is true that Gallimore could have sought a partition of the property during Ms. Washington‘s lifetime. He began living in the house in 1984, however, and made no attempt to secure a partition during the following ten years. Id. at 1133 & n. 8. I agree with the trial judge that the court should not now do for a murderer‘s benefit that which he could have done, but did not do, for himself.5
The decedent was seven years younger than Gallimore, but I agree with the trial judge that this is irrelevant. Id. at 1133 & n. 6 (citation omitted). We can never know which of the two would have survived the other if Gallimore had not murdered Ms. Washington.
If there had been no murder, and if Gallimore had pre-deceased Ms. Washington, Gallimore would have had an interest during his lifetime, but Ms. Washington would have owned the property outright at his death. The majority‘s disposition awards Gallimore substantially more than he would have had if he had not killed the decedent. This result, in my opinion, is irreconcilable both with the letter of the statute and with the legislative purpose.
II.
THE TRIAL JUDGE TOLERATES A FORFEITURE
The trial judge, in my view, correctly declined to partition the property or to award an undivided half share to Gallimore. She went further, however, and held that Gallimore no longer had any interest in the jointly held premises. I cannot agree with that disposition, for it effects a forfeiture of Gallimore‘s interest during his own lifetime.
In Pannone v. McLaughlin, 37 Md.App. 395, 377 A.2d 597 (1977), a case in which a husband killed his wife and committed suicide shortly thereafter, the court enunciated
the principle that a murderer cannot enrich his estate by his act of wrongdoing, but neither can he be deprived of an interest in property which he possessed at the time he committed his wrongful act. An unconstitutional forfeiture would result in the latter instance.
Id. 377 A.2d at 600. The trial judge was aware of the Pannone decision, but distinguished it upon the ground that “Pannone turned upon the application of Maryland‘s Constitution and Declaration of Rights pro-hibiting forfeiture of property based on a conviction.”6 Washington, supra, 122 Daily Wash.L.Rptr. at 1133. She pointed out that the District has no such constitutional provision, nor does it have a statute proscribing such forfeitures. Id.; cf. Johansen v. Pelton, 8 Cal.App.3d 625, 87 Cal.Rptr. 784, 790 (1970).
The lack of any such constitutional or statutory provision does not mean, however, that a forfeiture is a presumptively acceptable remedy in the District of Columbia. Maxim II makes it plain that, on the contrary, forfeitures are disfavored. This court has put it this way:
Equity abhors forfeitures. Berg v. Slaff, 125 A.2d 844, 846 (D.C.1956). Statutes or regulations which impose forfeitures ... are penal in nature and must be strictly construed. See generally 3 N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 59.02, at 7-8 (4th ed. 1986).
Beard, supra, 587 A.2d at 203.
III.
THE RESTATEMENT GETS IT RIGHT
My colleagues have rejected the resolution of this case suggested by the Restatement of Restitution. I believe that this is a mistake.
Restatements of the law are, of course, published by the American Law Institute. The Institute is comprised of especially distinguished judges, attorneys and scholars.7
The basic rule propounded by the American Law Institute in this area of the law is based on Maxim I:
§ 188. WHERE MURDERER‘S INTEREST IS ENLARGED BY THE MURDER.
Where two persons have an interest in property and the interest of one of them is enlarged by his murder of the other, to the extent to which it is enlarged he holds it upon a constructive trust for the estate of the other.
RESTATEMENT (FIRST) OF RESTITUTION, § 188 (1937). The Institute has also specifically addressed the application of this rule to a joint tenancy:
In such a case if one of [the joint tenants] murders the other, the murderer takes by survivorship the whole legal interest in the property, but he can be compelled to hold the entire interest upon a constructive trust for the estate of his co-tenant, except that he is entitled to one-half8 of the income for life. It is immaterial that each of them might have compelled a partition before the death of either.
Id., cmt. (b) (emphasis added). The Institute has taken this position because, “where it is doubtful whether or not [the murderer] would have had an interest if he had not committed the murder, the chances are resolved against him.” Id.
The Restatement approach is both sound and consistent with our statute. It places the murderer in a position equivalent to the one which he would have occupied if he had not committed the murder and if he had died first. During his lifetime, the murderer would have been entitled to his share of the income from the property, and that is what the Restatement rule permits him to receive. Upon his death, the entire property goes to the decedent‘s heirs. This disposition avoids the forfeiture which would be effected by the trial judge‘s order and which, in my opinion, precludes our affirmance of her decision. Moreover, contrary to my colleagues’ view, the Restatement approach does not “amount to a forfeiture,” for it leaves Gallimore precisely where he would have been if he had died first.
The majority prefers to “eschew the term ‘constructive trust’ in the present context.” Although this court continues to utilize this device in order to achieve the equitable resolution of problems similar to the one here presented, see, e.g., Gore v. Gore, 638 A.2d 672, 675-76 (D.C.1994), I can sympathize with my colleagues’ criticism of “anachronistic terminology.” See Op. at 1210 note 13. In any event, I am not concerned with labels, for
IV.
OTHER ISSUES
I find it necessary to make three additional comments on the majority‘s approach to this case.
A. The Statute Preempts the Common Law.
First, I agree with my colleagues that, in this case,
The italicized language is all-important. Where, as here, the legislature has spoken, it is not the business of judges to develop new common law doctrines independent of the statute. Surely my colleagues do not suggest that where a statutory enactment authorizes a particular result only in situations A, B, and C, a court which is not satisfied with this arrangement can order the same result in situation D by “creative expansion” of the common law or by some similar doctrine. If that is what the majority means, then today may become known as liberation day for judicial activism. We should recognize, as did the Supreme Court of West Virginia in construing its analogue to
B. The Murderer‘s Heirs—The Secondary Victims of His Crime.
Second, my colleagues complain that in case of a disposition different from the one which they have selected, “the successors of the decedent are favored over the successors of the murderer.” In my opinion, this solicitude for Gallimore‘s heirs is unwarranted. Whenever a wrongdoer commits a crime and is punished for it, whether by incarceration, a fine, or an order of restitution, his or her next of kin are bound to suffer. They become the secondary victims of the crime. One incentive for a father not to murder anyone is that, if he does so and is apprehended, he will be punished and will not be able to care for his family. People who obey the law and work hard often do so for the benefit of their children. It is neither contrary to our statute nor inequitable to provide a law-abiding decedent‘s heirs with benefits not available to the heirs of a convicted murderer.
The situation facing Gallimore‘s heirs under the Restatement approach is unfortunate. To be the next of kin of a killer is not a happy thing. Legally, however, the murderer‘s heirs stand in his shoes. If he has no right to something, then they have no right to inherit that something from him.
C. Gallimore‘s Share.
Finally, I think it necessary to advert to an issue not explicitly addressed by the majority but critical to its own resolution of the case. My colleagues hold that Ms. Washington‘s
Because the purported tenancy in common in this case developed from a purported tenancy by the entireties and an actual joint tenancy, there is a presumption that each tenant is entitled to an equal share of the proceeds. Sebold v. Sebold, 143 U.S.App.D.C. 406, 414, 444 F.2d 864, 872 (1971). “This presumption is subject to rebuttal, however, and does not prevent proof from being introduced that the respective holdings and interests of the parties are unequal.” Id. (quoting Jezo v. Jezo, 23 Wis.2d 399, 127 N.W.2d 246, 250 (Wis.1964) (Jezo I), modified Jezo v. Jezo, 23 Wis.2d 399, 129 N.W.2d 195, 196-97 (Wis.1964) (per curiam) (Jezo II)); see also Duston v. Duston, 31 Colo.App. 147, 498 P.2d 1174, 1175 (1972); Wallace v. Riley, 23 Cal.App.2d 669, 74 P.2d 800, 806 (1937); 48A C.J.S. Joint Tenancy § 22, at 357 (1981 & Supp.1994).
It appears to be undisputed that when Gallimore and Ms. Washington began their relationship, he moved into her home. Ms. Washington‘s heirs claim that he contributed nothing at all to the payment of the mortgage. Gallimore asserts in his brief that he contributed until 1983; in his affidavit, he claims to have done so until 1984. It appears that after 1984, Ms. Washington‘s daughter lived in the house and paid rent of $300 per month to her mother, an amount in excess of the $232 monthly mortgage payment. In any event, Gallimore does not claim to have contributed to the mortgage for more than a decade.
“The determination as to whether the presumption [that joint tenants own equal shares] was overcome by the evidence is a question of fact for the trial court.” Duston, supra, 498 P.2d at 1175. Because the trial judge held that Gallimore receives nothing, she found it unnecessary to resolve the factual issues regarding Gallimore‘s contribution. Although not necessarily controlling, evidence of unequal contributions is a factor to be considered. Sebold, supra, 143 U.S.App. D.C. at 414, 444 F.2d at 872; Jezo II, supra, 129 N.W.2d at 197. Accordingly, in my opinion, the majority‘s disposition requires a remand to resolve this issue.10
V.
CONCLUSION
For the foregoing reasons, I respectfully dissent.
SCHWELB
Associate Judge
Raphael SMITH, III, Appellant, v. UNITED STATES, Appellee.
No. 92-CF-158.
District of Columbia Court of Appeals.
Argued June 7, 1994. Decided Oct. 31, 1995.
Notes
(a) A person convicted of felonious homicide of another person, by way of murder or manslaughter, takes no estate or interest in property of any kind from that other person by way of:
(1) inheritance, distribution, devise, or bequest; or
(2) remainder, reversion, or executory devise dependent upon the death of the other person.
The estate, interest, or property to which the person so convicted would have succeeded or would have taken in any way from or after the death of the decedent goes, instead, as if the person so convicted had died before the decedent.
(b) Policies of insurance directly or indirectly procured by a person convicted as specified by subsection (a) of this section, for his own benefit or payable to him upon the life of the person killed by him, are void.
(c) This section does not affect the rights of bona fide purchasers of property specified by subsection (a) of this section, for value and without notice.