Dorsey, Matter of

• Decision Date: 30 March 1994
• Citation: 161 Misc.2d 258,613 N.Y.S.2d 335
• Parties: In the Matter of Mary J. DORSEY, Deceased. In the Matter of Lewis DORSEY, Deceased. Surrogate's Court, Dutchess County
• Court: New York Surrogate Court

Page 335

613 N.Y.S.2d 335

161 Misc.2d 258

In the Matter of Mary J. DORSEY, Deceased In the Matter of Lewis DORSEY, Deceased.

Surrogate's Court, Dutchess County.

March 30, 1994.

Fred W. Schaefer, guardian ad litem, Corbally, Gartland & Rappleyea, and Gellert & Cutler, Poughkeepsie, for administrator CTA.

McCabe & Mack, Poughkeepsie, for petitioners.

GEORGE G. BERNHARD, Surrogate.

The County Court sitting with a jury has found in the trial of an indictment that the deceased persons, who were husband and wife, died violently at the hands of their only son at their home in Dutchess County on April 30, 1990. Robert Allen Dorsey stands convicted and incarcerated for murder and is presently pursuing an appeal.

This Court has found that they died testate and has admitted to probate wills which provide that, in the event of common disaster, that the entire estate is left to their "beloved son, Robert Allen Dorsey".

The County Finance Commissioner has been appointed as Administrator CTA and, as such, has marshalled the assets which are ready for distribution, subject to the commission and fees of the attorneys and guardians involved.

Other than Robert Allen Dorsey, the following persons are in the position of possible distributees:

The children of Robert Allen Dorsey:

1. David Dorsey North Carolina

2. Lori Masti, guardian of Stacy Dorsey (an infant) Orange Park, Florida The brothers of Lewis Dorsey:

3. Joseph S. Dorsey

4. Alfred Dorsey

The children of Lewis Dorsey's predeceased sister, Ethel Centore:

5. Richard M. Centore Enfield, Conn.

6. Wayne L. Centore Enfield, Conn.

7. C. Thomas Centore Enfield, Conn.

The siblings of the mother of Mary J. Dorsey:

8. Joseph S. Holly Johnson City, N.Y.

9. Mary Holly Daly Somers, N.Y.

Descendants of the siblings of Daniel Holly, the grandfather of Mary J. Dorsey:

10. Mary Sedlaced (deceased 1954) Sherman Oaks, CA

11. John Holly (deceased) Czechoslovakia

The salient issue of these combined estates in the approximate amount of $147,000 is the effect of the conviction of Robert Allen Dorsey upon its distribution. This Court originally was persuaded to await the outcome of his appeal from his conviction. However, counsel for the collateral relations urges that the judgment of conviction is a sufficient basis for determination, despite the pendency of an appeal therefrom. (Cf. Matter of Amica Mutual Ins. Co., 85 A.D.2d 727, 445 N.Y.S.2d 820 [2d Dept.1981].)

This Court is also persuaded by the advice that the appeal to the Appellate Division of this Department has been pending since April 23, 1991, and that no date for argument has been scheduled so that this Court will proceed presently to adjudication.

The general principle adopted by the Courts of this State is that a murderer will be barred from taking under the will of his victim to deprive him of "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". (Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188) so that 16-year-old Elmer Palmer was barred from receiving the farm either as remainderman under his grandfather's will or by inheritance. This was due to Elmer having poisoned the gentleman who had contemplated testamentary changes in favor of a new step-grandmother. The rationale was that the Legislature, in enacting the substantive laws of Wills and Succession, which is silent on the question, could not have intended that one could take property from an ancestor by murder in violation of the ancient "Civil Law" derived from the principles of natural law. This conclusion appears to be an adaptation of the equity maxim "Ex turpi causa non oritur actio ". (This civil law maxim bars persons from relying on their own violations of law as a basis for a claim).

That principle has been applied in this State to bar persons convicted of manslaughter (wife slain) (See, e.g., Matter of Sparks, 172 Misc. 642, 15 N.Y.S.2d 926; Matter of Drewes, 206 Misc. 940, 136 N.Y.S.2d 72) and even a fifteen year old parricide who was convicted of juvenile delinquency (Matter of Sengillo, 206 Misc. 751, 134 N.Y.S.2d 800). The rule was relaxed to permit taking by persons successfully defending upon grounds of insanity ("Somnambulism") (See, e.g., Matter of Eckardt, 184 Misc. 748, 54 N.Y.S.2d 484) or even when the decedent was found not to be the distributees' intended victim (Matter of Wolf, 88 Misc. 433, 150 N.Y.S. 738, where the husband missed the wife's paramour with fatal consequences to the wife).

Thereupon, the collateral relatives assert that the distributees of Robert Allen Dorsey are barred by their father's evil deed from participating in the estate. (Citing, e.g., Bierbrauer v. Moran, 244 App.Div. 87, 279 N.Y.S. 176; Matter of Miller, 17 Misc.2d 508, 186 N.Y.S.2d 847; See also Matter of Jacobs, 2 A.D.2d 774, 154 N.Y.S.2d 536; Van Alstyne v. Tuffy, 103 Misc. 455, 169 N.Y.S. 173.)

Some of the broad language in this area is reminiscent of the old English sanctions employed to denude political or religious dissidents such as Bill of Attainder (See U.S. Constitution Article I, § 9, Cl. 3; § 10, Cl. 1) and corruption of blood to strip their descendents of property (U.S. Constitution, Article III, § 3, Cl. 2; Annotation, 53 L.Ed.2d 1273, 1287-88).

Nonetheless, a closer examination of the New York cases justifies ample reluctance to rely upon them for a blanket bar against distributees (or descendants) of the slayer. Some were murder-suicide cases in which the beneficiaries or distributees of the victim were different than those of the killer. In Bierbrower (supra) the estate of the killer husband was barred from claiming his survival of his slain wife with respect to real estate owned as tenants by the entirety. Rather, she was deemed to have survived him so that her distributees inherited property held jointly by the couple with right of survivorship. (See also Matter of Santourian, 125 Misc. 668, 212 N.Y.S. 116; See also, Van Alstyne v. Tuffy, 103 Misc. 455, 169 N.Y.S. 173). However, one bank account which had no provision for survivorship was divided equally between the two estates upon the ground that the homicide did not divest the slayer of interest in his own property. (See Bierbrauer v. Moran, 244 A.D. 87, 279 N.Y.S. 176).

In Matter of Jacobs, 2 A.D.2d 774, 154 N.Y.S.2d 536, a mother killed her son and then died by her own hand. The Appellate Division of this Department reversed the gentle hearted Surrogate of Queens County who apparently ruled in favor of the mother's estate, that such a tragedy must have been a result of insanity. The Appellate Court awarded Letters of Administration to the Public Administrator and revoked those issued to the same individual who had already been appointed the mother's administrator. So, too, in Matter of Miller, 17 Misc.2d 508, 186 N.Y.S.2d 847, the estate of another homicidal-suicidal mother was deprived of an interest in her son's estate and from his benefits under the New York State Employee's Retirement System.

But, on the other hand, a bank account with right of survivorship was distinguished from a real estate tenancy by the entirety, in that either party might withdraw funds unilaterally from the account, so that the account was divided equally between the estate of the slain spouse and her suicidal slayer spouse (Matter of Pinnock, 83 Misc.2d 233, 371 N.Y.S.2d 797) although mutual life insurance policies between victim and killer went to the estates of each insured rather than to the estates of beneficiaries.

Furthermore, where the perpetrator survives the homicidal transaction, the Courts have shown more caution in diminishing his property rights. For example, he was not stripped of his interest in the realty owned as tenants by the entirety in Matter of Nicpon, 102 Misc.2d 619, 424 N.Y.S.2d 100. Although barred from claiming to be the survivor, he was permitted to retain a life estate with remainder to the children of the marriage. (Matter of Nicpon, 102 Misc.2d 619, 424 N.Y.S.2d 100) in apparent contradiction to Matter of Santourian, 125 Misc. 668, 212 N.Y.S. 116, where the imprisoned killer spouse was deprived of his interest in a joint account.

Moreover, if one returns to the germinal case of Riggs v. Palmer, one reads a strong dissent by Judge Gray (115 N.Y. 506, 515, 22 N.E. 188) who argued that barring Elmer Palmer from taking under the express terms of his grandfather's will (1) was an impermissible amendment of the New York Statute of Wills beyond the power of the Court and (2) adds unauthorized additional punishments to those prescribed by the Penal Law.

It is the latter point which requires present scrutiny. The Courts of several States have taken this view of judicial restraint. (See, e.g., Bird v. Plunkett, 139 Conn. 491, 95 A.2d 71; In Re Emerson, 191 Iowa 900, 183 N.W. 327; Shellenberger v. Ransom, 41 Neb. 631, 59 N.W. 935; In Re Duncan's Estate, 40 Wash.2d 850, 246 P.2d 445; But see U.S. v. Foster, 238 F.Supp. 867 [Mich.]; Price v. Hitaffer, 164 Md. 505, 165 A. 470; Budwit v. Herr, 339 Mich. 265, 63 N.W.2d 841; Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641; Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188; De Zotell v. Mutual Life Ins. Co., 60 S.D. 532, 245 N.W. 58). While other States have taken a middle ground of permitting the grant of property...