Pannone v. McLaughlin

Moore, J., delivered the opinion of the Court. We consider here the effect upon jointly held real and personal property of the unlawful slaying of a wife by a husband who, within the hour, committed suicide. Also involved is a question of interpretation of a common disaster clause in the husband’s will. In a declaratory judgment proceeding brought by the personal representative of the husband’s estate, the trial court (Getty, J.) held that under Maryland law neither a murderer nor those claiming under him may acquire any of the estate of the victim; and that the individually held ³⁹⁷ property of the husband passed to the heirs of the wife under the disputed common disaster provision.

We agree with the latter determination. With respect to the jointly held property, however, we conclude that the cotenancies were severed by the killing and that a constructive trust should be imposed upon one-half of the property held by the estate of the killer in favor of the heirs of the victim. 1 I On a public street in Cumberland, at 1:12 in the afternoon of October 10, 1975, George W. Cousins, age 34, and a Vietnam veteran, shot and killed his wife, Kathleen D. Cousins, age 32, from whom he had been separated for several months. A short time later, at 1:40 p.m., he himself died of a self-inflicted gunshot wound in the head. During the marriage, Mr. and Mrs. Cousins acquired two parcels of real estate as tenants by the entireties — the matrimonial residence and a small piece of commercial property.

They also jointly owned 181 War Bonds valued at approximately $3,500 and household furnishings. A boat valued at several thousand dollars was titled in the name of the husband who also owned a gun collection. There were two motor vehicles, one titled to the husband and the other to the wife. We are told that prior to their deaths the parties had made almost identical wills.

The will of the husband was admitted to probate but that of the wife was never found. The wife had been married previously and had two children by that marriage. There were also two children by her marriage to Mr. Cousins. The will of Mr. Cousins named his two natural children as residuary legatees if his wife predeceased him but did not name the two stepchildren.

The third paragraph of the will, the interpretation of which is at issue here, provided for a conclusive presumption of his ³⁹⁸ wife’s survivorship in the event of their deaths in a common disaster “or within thirty days of each other.” The trial court construed the will provision as operative with respect to the property owned individually by George Cousins, since husband and wife died within thirty days of each other, and held that such property vested in the estate of Kathleen Cousins and passed to her four children equally, as her heirs at law. The property held in cotenancy was ordered to be distributed in a like manner, the court finding that the heirs of a murderer were precluded from inheriting through him any portion of the estate of the victim. The personal representative of Mr. Cousins’ estate contends, on this appeal, that the trial court’s order worked a forfeiture of the property of the decedent in violation of Article 27 of the Declaration of Rights, which provides that conviction of a crime shall not result in corruption of blood or forfeiture of estate. It is further the position of the appellant that the second and third paragraphs of the decedent’s will should be read together, so as to nullify the conclusive presumption of the wife’s survival where death did not result from a common disaster, and require distribution of the husband’s individually-owned property to his two children, as provided by the second paragraph of his will.

II The lower court, after a discussion of applicable law, concluded that in Maryland “a murderer and those claiming through him may not inherit any of the estate of the victim.” We do not so interpret the Maryland cases. The Maryland decision most nearly akin to the facts with which we are presented is Price v. Hitaffer, 164 Md. 505 , 165 A. 470 (1933), where the heirs and personal representatives of the estate of Walter J. Martin appealed from an order excluding them from participating in the distribution of the estate of Della A. Martin, the wife of Walter, the husband having murdered his wife and committed suicide immediately thereafter. Mrs. Martin’s estate consisted ³⁹⁹ entirely of personal property in her own name, and she died intestate. Under the then applicable statutes of descent and distribution, the victim’s husband would have received one-half of her estate, having survived her, the other half to be divided among the other heirs at law.

The court rejected the appellant’s claim that the trial court’s order worked a forfeiture of the husband’s property rights under Article 27 of the Declaration of Rights. In the court’s view, no deprivation of property in which the husband had an interest occurred, and, further, a person should not be permitted to enrich his estate by his own wrongdoing: “There can be no forfeiture without first having beneficial use or possession. One cannot forfeit what he never had. The surviving husband in the case before us, never having acquired any interest in his wife’s estate, there is nothing upon which the constitutional or statutory prohibition can operate.

By virtue of his act he is prevented from acquiring property which he would otherwise have acquired, but does not forfeit an estate which he possessed.’’ (Citations omitted.) (Emphasis added.) 164 Md. at 508 , 165 A. at 471 . The Price case thus stands for the principle that a murderer cannot enrich his estate by his act of wrongdoing, but neither can he be deprived of an interest in property which he possessed at the time he committed his wrongful act. An unconstitutional forfeiture would result in the latter instance. 2 A similar, though less difficult, issue was presented to the Court of Appeals in Chase v. Jenifer, 219 Md. 564 , 150 A. 2d 251 (1958), where an insurer filed an interpleader action to determine the rights of a wife as beneficiary of her husband’s life insurance policy in the light of her conviction of manslaughter in the death of her husband. Analogizing ⁴⁰⁰ the facts to Price v. Hitaffer, supra, the court held that a beneficiary would be disqualified whether convicted of murder or manslaughter, under the equitable doctrine that a wrongdoer should not profit as a result of his illegal acts.

More recently, this Court recognized the principles of the above decisions in Hill v. Lewis, 21 Md. App. 121 , 318 A. 2d 850 (1974). This was an appeal from the granting of summary judgment by the trial court on an issue submitted to it by the Orphans’ Court as to whether a husband murdered his wife and should therefore be removed as personal representative of his wife’s estate. The decision in Hill turned upon a procedural issue, but the Court noted preliminarily, citing Chase v. Jenifer, supra, and Price v. Hitaffer, supra, that a murderer, his heirs and representatives of his estate cannot share in the estate of the victim, and that an actual “conviction” of murder was not required for such bar to apply. In a footnote, the Court reiterated that, under Price , the constitutional provision against forfeiture of property upon conviction of a crime does not permit a murderer to claim a share of the victim’s estate as an heir or next of kin, but does protect from forfeiture that property which the wrongdoer already possessed at the time of his illegal act. 21 Md. App. at 124 , n.l, 318 A. 2d at 852-853 , n.l.

We recognize that the issue of whether the loss of a survivorship interest in property owned as tenants by the entireties constitutes a forfeiture, where one spouse murders the other, has not been confronted in the Maryland decisions referred to above. In Price v. Hitaffer, supra, the husband’s heirs asserted rights in personalty of the murdered wife which would, in the event of the wife’s natural death, have vested in the husband under the Maryland statutes of descent and distribution. It is clear that the court’s decision would have been different if the husband had had a pre-existing ownership interest in his wife’s property. 164 Md. at 508 , 165 A. at 471 . The import of Price for our purposes is that no additional benefit should accrue to the estate of George Cousins by virtue of his wrongful act, but that his heirs cannot be divested of property in which he had a prior legal interest. ⁴⁰¹ With respect to the property owned by George and Kathleen Cousins as tenants by the entireties, the appellant argues that the interest of George Cousins was not enhanced by his wife’s death, since his title derived from a prior inchoate ownership interest in the whole of the property.

Indeed, a tenancy by the entireties in Maryland has all its common law incidents and is based on the concept of the unity of husband and wife. Stieff Co. v. Ullrich, 110 Md. 629 , 73 A. 874 (1909); Foland v. Hoffman, 186 Md. 423 , 47 A. 2d 62 (1946). Where husband and wife possess real property as tenants by the entireties, each tenant is said to be in possession of the whole, rather than equal portions, during the lives of both. Upon the death of one spouse, title vests in the survivor, not because of any new interest, but because of the original conveyance.

Cunningham v. Cunningham, 158 Md. 372 , 148 A. 444 (1930). Despite the theory of ownership of the whole of entireties property, based on the unity of the spouses, we believe it is contrary to reason to suggest that the interest of a surviving husband is equivalent to his interest prior to his wife’s death. While both spouses are alive, either has but an expectancy of sole ownership in the event of the other’s prior death. Such expectancy ripens into unhampered ownership upon the death of one spouse, and substantial benefits accrue to the survivor.

As stated by Bogert in Law of Trusts and Trustees § 478 (2d ed. I960): “The courts . . . have appreciated that the survivor does acquire a substantial benefit by the death of his cotenant, in practical effect. Before such death each was entitled to enjoy the whole, and each had a chance of survivorship and consequent acquisition of the whole as a tenant in severalty. After the dealh the survivor does not have to share current profits with any one, and he has no possibility of loss of his interest impending over him.” (Emphasis added.) See also Schilbach v. Schilbach, 171 Md. 405, 407 , 189 A. 432, 433-434 (1937), where the court stated, “Except for the fact ⁴⁰² that [a tenancy by the entireties] cannot be defeated, during their lives, without the joint action of both [spouses], the same rules of law apply to it as to any other cotenancy.” In determining the manner in which the entireties property of George and Kathleen Cousins should be distributed, therefore, we must bear in mind that the estate of a murderer would indeed be enhanced were it to receive a sole and unfettered survivorship interest.

Various modes of distribution of entireties property have been employed by courts in other jurisdictions where one tenant has feloniously killed the other and then committed suicide. See Annot., 42 A.L.R.3d 1116 , 1140 (1972). We reject outright such cases as Beddingfield v. Estill & Newman, 100 S. W. 108 (Tenn. 1907), which hold that property owned as tenants by the entireties vests solely in the estate of the guilty tenant, where he murders his spouse and thereafter commits suicide. See also Hamer v. Kinnan, 16 Pa.

D. & C. 395 (1930); Wenker v. Landon, 88 P. 2d 971 (Ore. 1939). We have already discussed our reasons for finding a benefit to the estate of the survivor by virtue of his wrongful act, and our aversion to such result. See Price v. Hitaffer, supra, and Schilbach v. Schilbach, supra. The case of In re Eckardt’s Estate, 54 N.Y.S.2d 484 (Orange Cty.

Surr. Ct. 1945), cited by appellant, is inapposite to the facts at hand, since it involves a surviving spouse who was suffering from somnambulism at the time she killed her husband, and rests on the principle that the survivor should not be penalized where no legal wrong has been committed. We also decline to follow those cases which hold that the killer is not entitled to receive any portion of the property held as tenants by the entireties by virtue of his wrongful act. See Annot., 42 A.L.R.3d 1116 , supra, at 1147.

In Van Alstyne v. Tuffy, 169 N.Y.S. 173 (Sup. Ct. 1918), where a husband murdered his wife and then committed suicide, the court enjoined the husband’s heirs from making any claim of property held as tenants by the entireties, recognizing that no person should be permitted to profit from his own wrong or found a claim upon a criminal act. We regard such cases as extreme in position and violative of the provision against ⁴⁰³ forfeiture of property upon conviction of crime in Article 27 of the Declaration of Rights. The method of distribution which we regard as most equitable and appropriate for the resolution of the conflicting claims in the situation presented here is one which recognizes that the cotenancy was severed by the unlawful killing, and that the property held by George and Kathleen Cousins as tenants by the entireties vested in George when he survived Kathleen, but that his estate is required to hold one-half of the property in constructive trust for Kathleen’s heirs.

This has become the rule most frequently applied in the distribution of property held as joint tenants or as tenants by the entireties where one spouse murders the other and then commits suicide. See Annot., 42 A.L.R.3d 1116 , supra, at 1141. 3 One of the most recent and well-reasoned decisions in which this approach was employed is Johansen v. Pelton, 87 Cal. Rptr. 784 (1970), where the administrator of the estate of a husband who had killed his wife and then committed suicide appealed from an order requiring him to hold all joint tenancy property of the spouses as constructive trustee for the administrator of the wife’s estate. Both parties acknowledged the principle of the Restatement of Restitution § 188 (1937) that “[w]here two persons have an interest in property and the interest of one of them is enlarged by his murder of the other, to the extent to which it is enlarged he holds it upon a constructive trust for the estate of the other.” The narrow issue presented for decision was therefore the extent to which the interest of the ⁴⁰⁴ husband in joint tenant property was enlarged as a result of the murder of his wife.

The court refused to follow the procedure outlined in the Comment to Restatement § 188, whereby the estate of the killer would hold the entire interest in the property as constructive trustee for the estate of the innocent spouse, except for a one-half interest in the income for the killer. Instead, the California court chose to treat the joint tenancy as severed by the unlawful killing and to recognize the creation of a constructive trust with respect to one-half of the property held by the husband’s estate in favor of the estate of the slain joint tenant. In Johansen , the court stated the issue and its resolution in the following language: “In this case the appeal by the slayer’s representative squarely presents the issue of whether the slayer has been unjustly enriched by one-half or by the whole ... of the property to which he received the full legal title as surviving joint tenant. An examination of the precedents . . . leads this court to the conclusion that the most equitable solution is to treat the joint tenancy as severed by the unlawful slaying, and to impress a constructive trust on one-half the property held by the surviving slayer, or, as in this case, where he too is deceased, his estate, in favor of the heirs or devisees, other than the slayer, of the slain joint tenant. ” (Emphasis added. 187 Cal.

Rptr. at 788. See also Ashwood v. Patterson, 49 So. 2d 848 (Fla. 1951); In re Estate of Nunnelley, 343 So. 2d 657 (Fla. App. 1977). 4 As indicated in the above quotation, Johansen drew upon the resources of a number of earlier cases in which the constructive trust theory was applied. In Barnett v. Couey, ⁴⁰⁵ 27 S.W.2d 757 (Mo. 1930), where a husband also murdered his wife and then committed suicide, the administrator of the wife’s estate petitioned in equity to have the husband’s administrator declared constructive trustee of one-half of the proceeds of bank deposits formerly owned by the spouses as tenants by the entireties.

The court ruled that the requested relief should be granted because of the “unconscionable mode of . . . acquisition” of full legal title by the husband’s survival of his wife. 27 S.W.2d at 760. Theorizing that a severance of the marriage relationship occurred at the time of the murder, the Missouri court drew an analogy to the dissolution of a marriage by divorce, where an undivided one-half interest would vest in each spouse as tenants in common by operation of law. See also National City Bank v. Bledsoe, 144 N.E.2d 710 (Ind. 1957) and Budwit v. Herr, 63 N.W.2d 841 (Mich. 1954). As an alternative justification for the imposition of a constructive trust as to one-half of the property, the court in Barnett found an implied condition in the common law that death be within the ordinary course of events in order for full ownership rights to