Safran's Estate, Matter of, 80-108

• Decision Date: 02 June 1981
• Docket Number: No. 80-108,80-108
• Parties: , 25 A.L.R.4th 766 In the Matter of the ESTATE OF Helen V. SAFRAN: Martin B. GEDLEN, Edward F. Gedlen and Roman Safran, Appellants and Cross-Respondents, v. Unborn Children of Bernard V. SAFRAN, Jr., by their guardian ad litem, Louis D.Kaiser, Respondents, Bernard Safran, Jr., Respondent and Cross-Appellant.
• Court: Wisconsin Supreme Court

Page 27

306 N.W.2d 27

102 Wis.2d 79, 25 A.L.R.4th 766

In the Matter of the ESTATE OF Helen V. SAFRAN Martin B. GEDLEN, Edward F. Gedlen and Roman Safran Appellants and Cross-Respondents, v. Unborn Children of Bernard V. SAFRAN, Jr., by their guardian ad litem, Louis D.Kaiser, Respondents Bernard Safran, Jr., Respondent and Cross-Appellant.

No. 80-108.

Supreme Court of Wisconsin.

Argued March 2, 1981.

Decided June 2, 1981.

Ewald L. Moerke, Jr., Milwaukee, argued, for Martin G. Gedlen and Edward F. Gedlen; Dennis J. Mank and Schroeder, Gedlen, Riester & Moerke, Milwaukee, on brief.

Kevin M. O'Donnell, Milwaukee, argued, for Roman Safran; George P. Kersten, Kersten & McKinnon, Milwaukee, on brief.

Louis D. Kaiser, Milwaukee, for Unborn Children of Bernard V. Safran, Jr.

Theodore J. Hodan, Milwaukee, argued, for Bernard Safran, Jr.; Fiorenza, Weiss, Amato, Hodan & Belongia, S. C., Milwaukee, on brief.

DAY, Justice.

This case is concerned with the disposition of the estate of Helen V. Safran. Her son, Bernard Safran, Jr., the principal beneficiary of her will, was convicted on a plea of no contest, of causing her death by reckless conduct in violation of sec. 940.06, Stats. 1975. ¹

The principal issues presented on appeal are:

1. Does the beneficiary's commission of the offense of homicide by reckless conduct disqualify him from inheriting under the will?

2. Is a judgment of conviction, following a plea of no contest, admissible in probate proceedings to show disqualification?

We conclude that the criminal offense of reckless homicide does not by itself disqualify a beneficiary from inheritance and that a judgment of conviction for that offense is not admissible to show disqualification in a subsequent probate proceeding.

Other questions peculiar to the facts in this case will also be addressed in this opinion.

Mrs. Safran, a widow, died on July 11, 1977. On March 1, 1978, her son, Bernard Safran, was convicted of causing her death by reckless conduct, upon his plea of no contest.

On August 30, 1977, Mrs. Safran's will was admitted to probate. In her will, she gave all of her estate to her son Bernard, in trust. ² In the event that Bernard predeceased Mrs. Safran without issue, the will provided that her estate be divided equally among her aunt, Clara Kobe, and her two brothers-in-law, Roman Saffron (a/k/a Safran) and Joseph Safran. At the time of Mrs. Safran's death, Roman Saffron was the only one of these alternate beneficiaries still living. Mrs. Safran was also survived by two heirs-at-law, her brothers, Martin B. Gedlen and Edward F. Gedlen. The brothers and the named beneficiary, Roman Saffron, entered into a stipulation on November 29, 1978, for the division of the estate in the event of Bernard Safran's disqualification.

In the course of the probate proceedings, petitions were filed on behalf of Roman Saffron, Edward F. Gedlen and Martin B. Gedlen, to disqualify Bernard from inheritance; for a construction of the will; for adetermination of devisees, legatees, heirs, next of kin and others; to disqualify Bernard from inheriting property held jointly with Mrs. Safran; and to sell real property held by the testatrix. Petitions and counter-petitions were filed on behalf of Bernard admitting his conviction for reckless homicide but denying culpability and requesting a trial on the question of whether Bernard caused his mother's death and did so with intent to kill.

A guardian ad litem was appointed to represent potential but unborn children of Bernard Safran. Such unborn children had a contingent interest in the testamentary trust established for Bernard in the will.

The trial court held Bernard Safran to be conclusively disqualified from inheritance by his conviction of reckless homicide. The trial court also ordered that the entire estate be held in trust for the benefit of any issue that might be born to Bernard Safran and in existence at the time of his death.

Martin B. Gedlen, Edward F. Gedlen and Roman Saffron filed a joint notice of appeal from the trial court order on January 14, 1980. A notice of cross-appeal was filed by Bernard Safran on March 19, 1980. The appeals were certified to this court by the court of appeals on November 21, 1980. The certification was accepted and the case accepted for review by this court on December 23, 1980.

The first question presented on appeals is: Does Bernard Safran's commission of the offense of homicide by reckless conduct disqualify him from inheriting under his mother's will?

The disqualification of a slayer is premised on the maxim: Nullus commodum capere potest de injuria sua propria (no one can attain advantage by his own wrong).

The trial court, in its memorandum decision, concluded that "a crime having the degree of criminal culpability attached to section 940.06 of the Wisconsin Statutes" is a sufficient basis for disqualification. The court correctly observed that Wisconsin has no statute on disqualification and that no decision of this court has involved "disqualification by reason of manslaughter or negligent homicide." The court's conclusion that the offense of reckless homicide was sufficient to disqualify was based on the general maxim that a criminal shall not be permitted to profit from his crime.

This court first considered the problem of a beneficiary killing a testator in Estate of Wilkins, 192 Wis. 111, 211 N.W. 652 (1927). While a part of the Wilkins' decision has since been overruled, ³ certain fundamental principles enunciated by the court remain. The court prefaced its conclusions on the effect of the murder with a discussion of the right to make a will.

"This sacred right to make a will rests entirely with the testator, who under our law can dispose of his property in accordance with his volition, excepting only as to certain rights which are extended by statute to a specified class of persons, designed for their protection as a matter of public policy. Under this exception comes the right of a widow to renounce the provisions of the will by accepting her statutory rights of dower. A testator may ignore wholly, if he desires, those in close relation to him by ties of blood, and he may bestow his devises and bequests upon persons who are ordinarily not deemed the objects of his bounty. Nor is any one permitted to make a will for him; neither can the courts change or modify a will, or substitute in its place one which they deem more equitable and just, for to permit this would destroy the sacredness of a will and would substitute in its place the will of another." Estate of Wilkins, supra, 192 Wis. at 113-114, 211 N.W. 652.

The court went on to recognize that the power to make a will carries the implicit power to revoke the same. In Estate of Wilkins, the testatrix had been murdered by "K.", a $5,000 legatee under her will.

The court's conclusion that the will was inoperative as to the murderer was premised primarily on the equitable doctrine that a man shall not profit from his crime, but the court also recognized that:

"The sudden and unexpected killing of the testatrix by K. clearly effected a change in the condition of the testatrix. It deprived her of a valuable and sacred right, viz. the right to modify or change her will. The last sentence of the statute referred to reads: 'The power to make a will implies the power to revoke the same.' Here it must be reiterated that it was K. who deprived the testatrix of this sacred right to revoke her will, thus producing a changed situation not contemplated by the testatrix." Estate of Wilkins, supra, 192 Wis. at 120-121, 211 N.W. 652.

In Estate of King, 261 Wis. 266, 52 N.W.2d 885 (1952), the court considered the effect on the right of survivorship of the murder of one joint tenant by another. The court affirmed its view that, "no estate, in trust or otherwise, passes to the slayer upon the death of the slain." Estate of King, supra, 261 Wis. at 271, 52 N.W.2d 885.

In Will of Wilson, 5 Wis.2d 178, 92 N.W.2d 282 (1958), the court confronted a situation similar to the case at bar. There a husband, the sole beneficiary of his wife's estate, had murdered his wife. The court reiterated its firm commitment "... to the principle that a murderer will not be permitted to profit by his crime." Will of Wilson, supra, 5 Wis.2d at 180, 92 N.W.2d 282. (Emphasis added.) The court in Will of Wilson held, contrary to the view expressed in Estate of Wilkins, that the murderer may take under the will, but that he takes subject to a constructive trust imposed for the benefit of alternate beneficiaries. In so holding, the court rejected as error the conclusion reached in Estate of Wilkins that a constructive trust would result in an unconstitutional attainder or corruption of blood by visiting "upon the criminal a punishment in addition to that provided for by law." Will of Wilson, supra, 5 Wis.2d at 182, 92 N.W.2d 282; (quoting Estate of Wilkins, supra, 192 Wis. at 118, 211 N.W. 652).

The constructive trust approach adopted in Will of Wilson is based upon the theory of unjust enrichment. It does not serve as an exception to the statutory provisions restricting the specific events that revoke a will. See, sec. 853.11(4), Stats. (1979-80). Instead, the murderer is compelled "... to surrender the profits of his crime and thus preventing his unjust enrichment." Will of Wilson, supra, 5 Wis.2d at 182, 92 N.W.2d 282; (quoting 4 Scott, Trusts (2d ed.), p. 3180, sec. 492).

As they apply to the instant case, these earlier cases establish the following:

(1) A murderer of a testator is disqualified from inheriting under the deceased's will.

(2) The mechanism for disqualification is the imposition of a constructive trust on the murderer for the benefit of alternate beneficiaries under the will.

(3) The imposition of the constructive trust is based on the doctrine that a criminal shall not be permitted to profit from his crime and because the act of the murder interferes with the...