HARGROVE v. TAYLOR
451 | 389 P. 2d 36
Argued October 28, 1963, reversed February 13, 1964
James B. Minturn, Prineville, argued the cause for respondents. With him on the brief was James F. Bodie, Prineville.
Before MCALLISTER, Chief Justice, and ROSSMAN, PERRY, O‘CONNELL, GOODWIN, DENECKE and LUSK, Justices.
O‘CONNELL, J.
This is a suit in which plaintiff claims an interest in a certain parcel of real property. The property was previously owned by Virgil and Edna Osborn as tenants by the entirety. Virgil feloniously killed Edna and then committed suicide within three hours after his wife‘s death. Plaintiff is the sole heir of Edna. Defendants are the only heirs of Virgil.
The lower court dismissed plaintiff‘s complaint, applying the rule laid down in Wenker v. Landon, et al, 161 Or 265, 88 P2d 971 (1939), where, on facts essentially the same as those in the case at bar, it was held that the husband‘s interest as a surviving tenant by the entirety was unaffected by his act of feloniously killing his wife, and that upon his death his heirs inherited that interest.
In the Wenker case the heirs of the wife claimed that they were entitled to the estate through the application of
“(1) No person who feloniously takes or causes or procures another so to take the life of another
shall inherit from such person, or receive any interest whatsoever in the estate of the decedent as surviving spouse, or take by devise or legacy from the deceased person any portion of his or her estate.”
The court held that the statute was not applicable because a surviving tenant by the entirety does not “receive any interest” from his deceased spouse, each spouse owning his entire estate subject only to the loss of the estate upon failure to survive the other spouse. BELT, J., concurred in the result upon the ground that the killing was not felonious, but he was of the opinion that the surviving husband‘s interest was enhanced and that the statute was broad enough to apply.
We are of the opinion that Wenker v. Landon, supra, was not correctly decided and must be overruled. It is this court‘s opinion that although the Wenker case correctly construed
We next consider the extent to which the wrongdoer or his successors in interest should be required to disgorge through the enforcement of the constructive trust. Various solutions have been adopted or suggested. They are adequately discussed in the standard treatises.2 Of the suggested solutions, two seem to have received the most support. The first of these would sever the tenancy by the entirety, converting it into a tenancy in common in the murderer (or his successors in interest) and the heirs of the victim.3
“* * * The difficult question is whether the murderer should be permitted to keep half of the property and should be chargeable as constructive trustee of half, or whether he should be deprived of the whole of the property. It would seem that it is not unjust to deprive him of the whole of the property except a life interest in one half of it. If before severance of their interests the murderer had predeceased his co-owner, he would have taken nothing, although if he had survived him he would have taken everything. It cannot be ascertained whether, but for the murder, he would have predeceased his co-owner and taken nothing. It is fair, therefore, not to limit the constructive trust to one half of the property. The murderer was
entitled at least to the enjoyment of one half of the property during his lifetime, and he should not be deprived of this interest. Accordingly, it would seem that he should be chargeable as constructive trustee of the whole of the property, subject to a beneficial interest in himself for life of one half of the property.”5
We hold that defendant is a constructive trustee of the entire estate in the property in question. Defendant is entitled to one half the rents and profits if any, produced by the property during the period between Edna‘s and Virgil‘s death.
It is not inequitable to preclude Virgil‘s heirs from sharing in the estate. They are not deprived of any rights in the property since at most they had only an expectancy. If Virgil had lived his heirs apparent would have no interest in any property held by him, and in imposing a constructive trust upon the property the court would not have to consider their expectancy. The fact that Virgil committed suicide should not change the rule.
In Wenker v. Landon, supra, it was said that the forfeiture of the interest of a surviving spouse in lands held by the entirety would violate
Although his interest as a tenant by the entirety is regarded as ownership in the whole estate subject to a similar interest in his spouse, practically speaking his interest is highly contingent, depending upon survivorship. By killing his wife he enhances his interest by removing the contingency. The constitution certainly was not intended to prevent the courts from forcing him to disgorge that which he might never have received but for his wrongdoing.
The decree of the lower court is reversed.
McALLISTER, C. J., dissenting.
I agree with the majority that Wenker v. Landon, 161 Or 265, 88 P2d 971 (1939), should be in part overruled. However, I believe it would be more equitable in cases such as this to hold that the tenancy by the entirety is converted into a tenancy in common in the wrongdoer, or his successors, and the heirs of the victim. This can be accomplished by imposing a constructive trust as to one-half of the property. See Bradley v. Fox, 7 Ill2d 106, 129 NE2d 699 (1955). I, therefore, dissent.