In re Demesyeux, 350391/A.

• Decision Date: 29 March 2013
• Docket Number: No. 350391/A.,350391/A.
• Parties: In the Matter of the Application of Innocent DEMESYEUX, as Administrator of the Goods, Chattels and Credits which were of Innocent Demesyeux, Jr., Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator. In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of Michael Demesyeux, Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator.
• Court: New York Surrogate Court

39 Misc.3d 1209

971 N.Y.S.2d 70

2013 N.Y. Slip Op. 50547

In the Matter of the Application of Innocent DEMESYEUX, as Administrator of the Goods, Chattels and Credits which were of Innocent Demesyeux, Jr., Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator. In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of Michael Demesyeux, Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator.

No. 350391/A.

Surrogate's Court, Nassau County, New York.

March 29, 2013.

OPINION TEXT STARTS HEREEDWARD W. McCARTY III, J.

In these miscellaneous proceedings, the guardian ad litem for Leatrice Brewer seeks an order directing the unsealing of Family Court records in the criminal proceeding relating to her ward.

Innocent Demesyeux Jr. and Michael Demesyeux were both five years of age at the time of their deaths. It is undisputed that the children died by being drowned in the bathtub by their mother, Leatrice Brewer. The children's father, Innocent Demesyeux, received limited letters of administration and commenced a wrongful death action against the County of Nassau. The proceeding was settled for a total of $250,000.00 ($125,000.00 for Innocent and $125,000.00 for Michael). The father has now commenced a proceeding to compromise the wrongful death action and settle his account. As part of his petition, the petitioner requests that the mother, Leatrice Brewer, be held to have forfeited her interest in the children's estates based on the doctrine of Riggs v. Palmer (115 N.Y. 506 [1889] ), that a wrongdoer should not profit from her own wrong. In the criminal action, Leatrice Brewer entered a plea on February 9, 2010 of “not responsible by reason of mental disease or defect” in relation to the boys' deaths. After entering her plea, Leatrice Brewer was held in civil confinement in the Mid–Hudson Forensic Psychiatric Center, where she is still being held.

In connection with these proceedings, a guardian ad litem was appointed to represent Leatrice Brewer's interests. In furtherance of her duties, the guardian ad litem attempted to review certain records in the Family Court and in connection with the criminal proceeding concerning the children's deaths. The guardian ad litem, however, was given only limited access to the records and was told that a court order would be necessary in order to unseal those records. Accordingly, the guardian ad litem has filed an interim report seeking such an order.

It is well established law that one who takes the life of another should not be permitted to profit from his own wrong and shall be barred from inheriting from the person slain (Riggs v. Palmer, 115 N.Y. 506 [1889];Matter of Covert, 97 N.Y.2d 68 [2001];Matter of Miller, 17 Misc.2d 508, 186 N.Y.S.2d 847 [Sur Ct, Nassau County 1959]; Matter of Sparks, 172 Misc. 642, 15 N.Y.S.2d 926 [Sur Ct, New York County 1939] ). In Riggs v. Palmer (115 N.Y. 506, 511 [1889] ), the Court of Appeals articulated the basic principle that “[n]o 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.” Although there is no express statutory provision denying, to one who killed, the right to inherit from his victim ( but cf.EPTL 4–1.6 regarding joint bank accounts), numerous cases since Riggs v. Palmer have reaffirmed the applicability of the common-law general principle that one should not be permitted to profit by taking the life of another and, in particular, that one who feloniously murders shall not be entitled to share in his victim's estate ( Matter of Covert, 97 N.Y.2d 68 [2001];Petrie v. Chase Manhattan Bank, 38 A.D.2d 206, 328 N.Y.S.2d 312 [1st Dept 1972], mod33 N.Y.2d 846 [1973];Matter of Jacobs, 2 A.D.2d 774, 154 N.Y.S.2d 536 [2d Dept 1956], affd3 N.Y.2d 723 [1957];Bierbrauer v. Moran, 244 App.Div. 87, 279 N.Y.S. 176 [4th Dept 1935]; Matter of Kirkman, 120 Misc.2d 278, 465 N.Y.S.2d 690 [Sur Ct, Broome County 1983]; Matter of Bach, 81 Misc.2d 479, 365 N.Y.S.2d 454 [Sur Ct, Dutchess County 1975], affd53 A.D.2d 612, 383 N.Y.S.2d 653 [2d Dept 1976]; Matter of Grey v. Levitt, 76 Misc.2d 720, 352 N.Y.S.2d 134 [Sup Ct, Albany County 1974]; Matter of Loud, 70 Misc.2d 1026, 334 N.Y.S.2d 969 [Sur Ct, Kings County 1972]; Matter of Miller, 17 Misc.2d 508, 186 N.Y.S.2d 847 [Sur Ct, Nassau County 1959] ). These cases hold essentially that there is no vesting of the estate in the wrongdoer because the crime precludes the wrongdoer from becoming a distributee (Matter of Sparks, 172 Misc. 642, 15 N.Y.S.2d 926 [Sur Ct, New York County 1939]; Matter of Wolf, 88 Misc. 433, 150 N.Y.S. 738 [Sur Ct, New York County 1914] ).

The application of the Riggs v. Palmer principle is not always straightforward, and not all wrongful conduct will disqualify a person as a distributee (5 Warren's Heaton, Surrogate's Court § 74 .13 [7th ed rev] ). In Matter of Eckhardt (184 Misc. 748, 54 N.Y.S.2d 484 [Sur Ct, Orange County 1945] ), a woman, who was a somnambulist, killed her husband. She was acquitted on the grounds that she did not know the nature and quality of her act. The court reasoned that the wife was not profiting from her own wrong since she had not done anything “legally wrong.” Similarly, there is some authority that if the killing was unintentional or accidental, the rule will not be applied (Matter of Savage, 175 Misc.2d 880, 670 N.Y.S.2d 716 [Sur Ct, Rockland County 1998] [holding that one who kills by accident does not forfeit the right to inherit from the decedent]; Matter of Wolf, 88 Misc. 433, 150 N.Y.S. 738 [Sur Ct, New York County 1914] [husband convicted of manslaughter for killing his wife was permitted to take as a distributee where it appeared that he killed her when he really intended to kill her paramour] ).

This court has held that “[a] criminal conviction either by plea or after trial is conclusive proof of its underlying facts in a subsequent civil proceeding and collaterally estops a party from relitigating the issues” ( Estate of Mirissis, NYLJ, Mar. 16, 1993, at 25, col 3, [Sur Ct, Nassau County] citing Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 472 N.Y.S.2d 97 [2d Dept 1984]; Grayes v. DiStasio, 166 A.D.2d 261, 560 N.Y.S.2d 636 [1st Dept 1990] ). In Mirissis, this court held that a de novo hearing was not necessary in order to prove that the wrong was intentional where the killer entered a plea to manslaughter in the first degree ( see also Matter of Loud, 70 Misc.2d 1026, 334 N.Y.S.2d 969 [Sur Ct, Kings County 1972] ). Nevertheless, this court held that before declaring a forfeiture on the part of the killer, “the court should review the transcript of the minutes of the pleas .” Likewise, the court found that since “the record of conviction indicates that a notice of appeal was filed ... the guardian ad litem should report on the status of same” ( Estate of Mirissis, NYLJ, Mar. 16, 1993, at 25, col 3 [Sur Ct, Nassau County] ).

Other courts have similarly held that “[a] criminal conviction, whether by plea or trial, is conclusive proof of the same facts in subsequent civil proceeding and collateral estoppel bars a defendant from relitigating those issues that were raised, or may have been raised, in the criminal proceeding.” (Matter of Savage, 175 Misc.2d 880, 882, 670 N.Y.S.2d 716 [Sur Ct, Rockland County 1998]; see also Estate of Camerlengo, NYLJ, Nov. 3, 2000, at 31, col 2 [Sur Ct, Richmond County] [no hearing to disqualify respondent as a distributee was necessary where respondent was found guilty after trial of two counts of murder in the second degree and one count of assault]; Mark G. v. Sabol, 180 Misc.2d 855, 694 N.Y.S.2d 290 [Sup Ct, New York County 1999] [no disqualification hearing required where respondent pleaded guilty to first degree manslaughter of the decedent]; Matter of Kirkman, 120 Misc.2d 278, 465 N.Y.S.2d 690 [Sur Ct, Broome County 1983] [no hearing de novo required where there was a conviction of murder in the second degree after trial] ).

In the instant proceedings, the guardian ad litem states that it is “absolutely imperative that ... [she] review and analyze the Criminal Court Files and the Family Court Files in order to assess Petitioner's application to disqualify Ms. Brewer as a distributee ...” The guardian ad litem states that she cannot effectively represent Ms. Brewer without access to these records, which are the foundation upon which petitioner's application is based.

Family Court Act § 166 “Privacy of Records” provides as follows:

“The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records. Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation to be had and may in the discretion of the court obtain a copy of the whole or part of such record.”

In addition, Uniform Rule § 205.5 of the Family Court Act provides, in pertinent part, as follows:

“Subject to limitations and procedures set by statute and case law, the following shall be permitted access to the pleadings, legal papers formally filed in a proceeding, findings, decisions and orders and, subject to the provisions of CPLR 8002, transcribed minutes of any hearing held in the proceeding: ...

(e) another court when necessary for a pending proceeding involving one or more parties or children who are or were the parties in, or subjects of, a proceeding in the Family Court pursuant to Articles 4, 5, 6, 8 or 10 of the Family Court Act. Only certified copies of pleadings and orders...