Bird v. Plunkett

• Decision Date: 17 February 1953
• Citation: 95 A.2d 71,36 A.L.R.2d 951,139 Conn. 491
• Court: Connecticut Supreme Court
• Parties: , 36 A.L.R.2d 951 BIRD v. PLUNKETT et al. Supreme Court of Errors of Connecticut

Page 71

95 A.2d 71

139 Conn. 491, 36 A.L.R.2d 951

BIRD v. PLUNKETT et al.

Supreme Court of Errors of Connecticut.

Feb. 17, 1953.

David S. Day and Arthur C. Williams, Bridgeport, Orson L. St. John (Greenwich, for appellant (defendant Curtis).

David Goldstein, Bridgeport, Bernard Glazer, Bridgeport, for appellee (named defendant).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The plaintiff brought this action for a declaratory judgment to determine whether the defendant Plunkett, who had been convicted of manslaughter in causing the death of his wife, is entitled to take title and the full beneficial interest in her entire estate pursuant to the provisions of her will or whether the full title or, if not, the beneficial interest under a constructive trust passes to the plaintiff and the defendant Curtis as the heirs at law and next of kin of the testatrix. The material facts alleged in the complaint as amended may be thus summarized: On November 1, 1949, in Stamford, the defendant Plunkett shot and killed his wife, Esther Bird Plunkett. Upon an indictment charging him with murder in the second degree of his wife, Plunkett was convicted of manslaughter on March 15, 1950. Article second of her will, executed October 30, 1942, provided: 'I give, devise and bequeath to my beloved husband, James Garrett Plunkett, if he be living at the time of my death, my entire estate, both real and personal * * * for his own use and benefit forever.' The will was duly admitted to probate on November 21, 1949. The plaintiff Bird and the defendant Curtis, hereinafter referred to as the plaintiffs, are the next of kin and heirs at law of the testatrix. The executor threatens to distribute the entire estate to Plunkett.

The defendant Plunkett demurred to the amended complaint on the ground that it alleged that he 'was charged with the crime of murder in the second degree in the killing of his late wife and that he was convicted of the crime of manslaughter and under Section 7062 of the General Statutes, Revision of 1949, it appears that only a person finally adjudged guilty of murder in the first or second degree is barred to inheritance from or participation under the will of the person killed.' Section 7062 is entitled 'Person guilty of murder not to inherit from victim.' Its pertinent provisions are: 'No person finally adjudged guilty, either as the principal or accessory, of murder in the first or second degree shall be entitled to inherit or take any part of the real or personal estate of the person killed, whether under the provisions of any act relating to intestate succession, or as devisee or legatee, or otherwise under the will of such person * * * With respect to inheritance from or participation under the will of the person killed, the person so finally adjudged guilty of murder in the first or second degree shall be considered to have predeceased the person killed.' The question for decision is whether the demurrer was properly sustained on the ground that conviction of manslaughter did not bar the defendant Plunkett from taking under his late wife's will, because § 7062 bars only those finally adjudged guilty of murder in the first or second degree. This is a question of first impression in Connecticut. While there is a conflict of authority in the decisions of other jurisdictions, there is an unusual abundance of cases in which the issue has been ruled upon.

In determining the proper interpretation of § 7062, we must keep the provisions of three other statutes clearly in mind. Section 7309 relates to succession by a surviving spouse to property of the other who dies intestate. Section 6951, entitled 'Wills, how made and executed', prescribes what is essential to the making of a valid will in Connecticut. Section 6956 provides 'If, after the making of a will, the testator shall marry or a child shall be born to [him] or a minor child shall be legally adopted by him, and no provision [was made in his] will for such contingency, [it] shall operate as a revocation of such will. No will or codicil shall be revoked in any other manner except by burning, cancelling, tearing or obliterating it by the testator or by some person in his presence by his direction, or by a later will or codicil.' The express terms of the first statute leave no room for doubt that under it, if it controlled and if Plunkett's wife when killed by him had left no will, he would inherit her entire estate as intestate, since the complaint shows that there was neither a parent nor a child surviving. From the express terms of the statute as to the making of wills and the statute concerning their revocation, with the explicit and positive provisions in the latter as to what alone can accomplish revocation, it is equally clear that, if these statutes controlled, Plunkett under his wife's will would derive title to her entire estate. Section 7062 by its express terms applies as to both testate and intestate property and so clearly provides that one finally convicted of first or second degree murder of his victim, from whom he claims to take, is barred, whether or not there is a will. In this case, the question is reduced to whether § 7062 can be construed to preclude Plunkett, as a killer, from taking, notwithstanding he has not been convicted of murder as expressly required by the statute.

The gist of the plaintiffs' argument, as we understand it, involves these propositions: The decisions of the courts do not create the common law but, when rendered, are only declaratory of the law that already exists. In the absence of a statute excluding the common-law authority of the courts, no person can take a devise or a legacy under the will of a testator whom he has feloniously killed, or, if he takes the legal title, he is subject to a constructive trust in favor of the heirs at law or next of kin. Section 7062 does not affect the common-law authority of the court to declare invalid or void a devise or a legacy in the will of a testator feloniously killed by the devises or the legatee or to impose a constructive trust upon the devisee or the legatee. The statute has only the specific and limited application of permitting, in cases to which it applies, the introduction of the judgment of guilty of murder in the first or second degree to prove, in a civil action, the commission of the act charged--evidence which otherwise would be inadmissible. Page v. Phelps, 108 Conn. 572, 588, 143 A. 890.

Proceeding upon this thesis and, so, assuming that § 7062, instead of constituting an effective declaration as to the only killer who is precluded from receiving property by the death of his victim, the plaintiffs treat the statute as procedural merely, leaving unaffected an undeclared common-law power, which it is claimed exists in the court, to apply the ancient maxim that no one shall be allowed to profit by his own wrong and so to rule that no felonious killer can succeed to the property of his victim. It is upon the claimed power of the court to give effect to this maxim in the instant case, regardless of the positive provisions of the three statutes recited above, that the plaintiffs rely to preclude the right of the defendant Plunkett to take. As authority for this contention they rely upon principles enunciated in Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 5 L.R.A. 340, and subsequent decisions which have adopted a similar view.

In that case there was no statute similar to § 7062. The sole question was whether the testator's grandson, who had murdered the testator, could take as a beneficiary under his will. The majority opinion stated 115 N.Y. at page 509, 22 N.E. at page 189, that, while the purpose of the statutes concerning wills 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 it 'was the intention of the law-makers that the donees in a will should have the property given to them', 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.' The court then stated 115 N.Y. at page 511, 22 N.E. at page 190, this as the ground of accomplishing the result: '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. No 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 in all civilized countries, and have nowhere been superseded by statutes.' The majority concluded that the crime of the grandson deprived him of any interest in his grandfather's estate.

In accord with the holding in the Riggs case, a minority of courts have held that one who has feloniously killed his benefactor cannot inherit from him notwithstanding there is no express statute similar to § 7062. In re Estate of Wilkins, 192 Wis. 111, 119, 211 N.W. 652, 51 A.L.R. 1106, and note, 1113; Price v. Hitaffer, 164 Md. 505, 514, 165 A. 470; De Zotell v. Mutual Life Ins. Co., 60 S.D. 532, 538, 547, 245 N.W. 58; Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565, 570, 139 N.E. 816, 27 A.L.R. 1517; Perry v. Strawbridge, 209 Mo. 621, 632, 108 S.W. 641, 16 L.R.A.,N.S., 244; In the Estate of Hall, [1914] P. 1. In these decisions, as in the Riggs case, the courts have based their denial of the killer's right to take on a 'reasonable interpretation' of the descent statutes and have read into them the common-law maxim and the civil-law rule that benefits of statutes in derogation of the common law will not be enforced where to do so...