Garner v. . Phillips
47 S.E.2d 845
N.C.
1948
Check Treatment
ReviN, J.

By the judgment appealed from the youthful defendant Thomas Lee Phillips has been denied beneficial inheritance from his deceased parents for the reason that it ivas found he had murdered both his father and his mother. Upon reason and authority we think the case has been correctly determined.

It is a basic principle of law and equity that no man shall be permitted to take advantage of his own wrong, or acquire property as the result of his own crime. Bryant v. Bryant, 193 N. C., 372, 137 S. E., 188; *162 Parker v. Potter, 200 N. C., 348, 157 S. E., 68; Pearson v. Stores Corp.. 219 N. C., 717 (722), 14 S. E. (2d), 811; New York Mutual Life Ins. Co. v. Armstrong, 117 U. S., 591; Slocum v. Ins. Co., 245 Mass., 565; Price v. Hitaffer, 164 Md., 505; Eisenhardt v. Siegel, 343 Mo., 22; Weaver v. Hollis, 247 Ala., 57; In re Tyler, 140 Wash., 679; Rex v. Lanier, 112 Tenn., 393; Garwols v. Trust Co., 251 Mich., 420; Smith v. Todd, 155 S. C., 323; Anderson v. Ins. Co., 152 N. C., 1, 67 S. E., 53.

True, we have no statute in North Carolina which in express terms destroys the right of inheritance under the canons of descent, or bars the devolution of title as heir to one who has murdered the ancestor from whom derived, but the rule seems to have been established in this jurisdiction that in such case equity will impress upon the legal title so acquired a constructive trust in favor of those next entitled and will exclude the murderer from all beneficial interest in the lands descending to him from his victim. This is the holding in Bryant v. Bryant, 193 N. C., 372, 137 S. E., 188, and the case at bar was tried and judgment rendered in accord with the ruling in that case.

Following the decision of this Court, in 1888, in Owens v. Owens. 100 N. O., 240, 6 S. E., 794, where it was held that a wife who had murdered her husband was not thereby deprived of dower, statutes were enacted declaring that in case husband or wife murdered the other, the survivor should lose every right and estate in the property of the-murdered spouse. G. S., 28-10; G. S., 30-4; G. S., 52-19. It is suggested that provision for the forfeiture of the murderer’s interest in the property of his victim having been made applicable by these statutes only to the relationship of husband and wife, this should be regarded as significant of the legislative intent not to extend the forfeiture for this cause to the heir. But that omission, we think, would not prevent a court of equity from attaining an end so manifestly just by declaring, upon sufficient findings of fact, the wrongdoer a constructive trustee, holding only the naked legal title for the benefit of those next entitled. The legal title passes to the murderer, but equity prevents him from enjoying the fruits of his crime. Ames Lectures on Legal History, 310-12; Ellison v. Westcott. 148 N. Y., 149; Van Alstyne v. Taffy, 169 N. Y. Supp., 173; Whitney v. Lott, 134 N. J. Eq., 586; Sherman v. Weber, 113 N. I. Eq., 451; 5 N. C. L., 372; 26 N. C. L., 232. “This position seems most satisfactory on principle.” 3 Bogert Trusts & Trustees, 52.

In Restatement Law of Restitution, sec. 187 (pg. 764), it is said. “Where a person is murdered by his heir or next of kin, and dies intestate, the heir or next of kin holds the property thus acquired by him upon a constructive trust for the person or persons who would have been heirs or next of kin if he had predeceased the intestate.”

Some of the courts in other jurisdictions have reached different conclusions in the consideration of the question here presented. In Crumley *163 v. Hall, 43 S. E. (2d), 646 (Ga.), it was thought that since the statutes of descent and distribution made no exception the court was not justified in reading into the statutes a condition not reasonably deducible therefrom. A similar view was expressed in Eversole v. Eversole, 169 Ky., 993; Wall v. Pjanschmidt, 265 Ill., 180; Hogan v. Cone, 21 Ga. App., 416; Murchison v. Murchison, 203 S. W., 423 (Tex. Civ. App.); Wilson v. Randolph, 50 Nev., 371; In re Carpenter’s Estate, 170 Pa., 203; McAllister v. Fair, 72 Kansas, 533; Shellenberger v. Ransom, 41 Neb., 631; Wenker v. London, 161 Oregon, 265; Ofell v. Hodapp, 129 Ohio St., 432; Re Kirby, 162 Cal., 91; 16 A. J., 847; 26 C. J. S., 1055.

In other jurisdictions it has been held that one who murdered his ancestor was debarred from inheriting the property of his victim in accord with the rule against the acquisition of property by the wrongdoer as result of his crime, on the ground that a public policy is expressed by this maxim, and that the statutes of descent should be interpreted in the light of this principle. Slocum v. Ins. Co., 245 Mass., 565; Garwold v. Trust Co., 251 Mich., 420; Eisenhardt v. Siegel, 343 Mo., 22, 119 S. W. (2d), 810; Price v. Hitaffer, 164 Md., 505; Perry v. Strawbridge, 209 Mo., 621; Box v. Lanier, 112 Tenn., 393; In re Tyler, 140 Wash., 679: Bierbrauer v. Moran, 279 N. Y. S., 176; De Zotell v. Ins. Co., 60 S. D., 532; Protective Ins. Co. v. Linson, 245 Ala., 493; Weaver v. Hollis, 247 Ala., 57; In re Eckardt, 54 N. Y. S. (2d), 484; 16 A. J., 849; Wharton on Homicide (3rd Ed.), sec. 665. The civil law debarred one who procured the death of another from succeeding to his estate as heir and the Code Napoleon so declared. Re Wilkins, 192 Wis., 111. In many states statutes to this effect have been enacted. In re Norton, 175 Oregon, 115, 151 Pac. (2d), 719; Estate of Lipsholm, 79 Cal. App. 2d), 467. However, in the absence of a definite statute, we prefer to adhere to the principle stated in Bryant v. Bryant, supra. The equitable principle there stated has been frequently approved. Speight v. Trust Co., 209 N. C., 563, 183 S. E., 734; Goldsmith v. Samet, 201 N. C., 574, 160 S. E., 835.

The defendant’s exception that the judgment here was rendered before sufficient time had elapsed after notice as prescribed by G. S., 1-65, is not borne out by the record. The other exceptions noted at the trial and brought forward in defendant’s assignments of error on examination we find untenable.

In view of the importance of the questions presented, the guardian ad litem properly brought the case here for review.

In the trial and judgment we find

No error.