Box v. Lanier ( 1903 )

Mr. Chief Justice Beard

delivered the opinion of the Court.

This is a contest between complainant, as administrator of Mrs. Bettie W. Justice, deceased, and the defendant, who is administrator of her late husband, A. E. Justice, over the proceeds of an insurance policy upon the life of the husband. These proceeds were paid over to the defendant administrator upon an agreement between him and the complainant that this was to be without prejudice to the rights of the latter, and that they were to be held by him to- await the determination of this suit.

The facts out of which this controversy grows are that on the eighth of February, 1900 — about two years after the marriage of the two deceased parties — the husband obtained an insurance policy on his life in the sum of $10,000, which was made “payable to the wife of the assured should she survive; otherwise to his executors, administrators, or assigns.” Immediately after its issuance the husband delivered the policy to his wife, with the statement that it was her policy, and that she must pay the premiums accruing on it. This was done by her, so that out of her own estate all of the premiums were paid by her and the policy from the time it was so de-delivered to her until her death was in her possession and under her exclusive control.

The court of chancery appeals finds that the assured took out this policy for the benefit of his wife in view of her means received and used by him, and “with the intention that she should keep it alive, . . . and that it should belong to her,” As confirmatory of the purpose of the husband, both with regard to the issuance and delivery of the policy to the wife, that court finds that the husband on different occasions and to different parties said that it belonged to his wife, and that these declarations, “coupled with the delivery to and the payment of all premiums by her at his request, clearly indicated an assignment by him of the policy to her; so as, under our authorities, to constitute it thereafter her separate estate.”

Subsequently to these transactions, to wit, in May 1902, so obnoxious had the husband by reason of his conduct, become to his wife, she filed in the chancery court of Humphreys county, in this State, a bill for divorce, alleging as ground therefor cruel and inhuman treatment, drunkenness, and unfaithfulness to his marriage vows. It was also averred by her that he had squandered large sums of money belonging to her estate in immoral dissipation, and an injunction was prayed restraining him from disposing of certain property of which he had then possession,- and also from coming to her home, or in any way interfering with her.

This bill was filed during the temporary absence of the husband from the town of Waverly, where the parties resided. On his return, and’ after the service of process, he made ineffectual efforts at a reconciliation with his wife. Disappointed in these efforts, on the 19th of May, 1902, having armed himself Avith a pistol, he entered a place of concealment near the home of his wife, Avhere he remained nntil he saAV her come ont, when, rushing upon her, he shot her to death, and then turning the pistol upon himself, he inflicted a mortal wound, from the effect of which he died some four hours later.

Upon this state of facts the present controversy arises. The complainant, for the estate of Mrs. Justice, insists that the policy in question Avas a right existing in his intestate at the time of her death, and that while, under ordinary or normal conditions, it would have vested in her husband surviving jure mariti, yet, inasmuch as the survivorship was brought about by his felonious act, his estate avüI not be permitted to make profit out of it, but the policy or its proceeds avüI be preserved to the representative of her estate for the benefit of her children, who are her distributees.

On the other hand, it is contended by the defendant that the representative of the husband had, by the Avords of the policy, a fixed right-in the.same, defeasible only upon the wife surviving and, if this is not SO' then the husband’s .right accrued to him jure mariti, and that this right should not be forfeited by the murder of his wife.

Before considering these respective contentions-, it is proper to arrive at a true interpretation of the policy with the view of ascertaining the respective rights of these parties at the time of the commission of the felony in question. As has already been stated, the policy was upon the life of the husband, payable to the wife upon condition that she outlived him; in other words, the title to the proceeds of the policy, if kept alive by the payment of the premiums,- would have been the property of the wife in the event she outlived her husband. The right was defeasible alone upon her dying first. It was only upon the happening of this contingency that either he or his assigns or representatives would be entitled to those proceeds. It is insisted, however, that.no inter-' est by the terms of the policy accrued to the husband, but that his administrators or executors, as a special class, were to take in the event the contingency happened in the interest of his estate, but independent of him. This contention, we think, is unsound.

Mr. Biddle, in volume 1, section 287, of his work on Insurance, says: “Usually a policy taken by the insured payable to the insured’s heirs, administrators, and assigns goes to the estate of the insured, and, of course, may be assigned by him in his lifetime.” In support of this context the author cites the following cases which more or less go to sustain it: Rawson v. Jones, 52 Ga., 458; Swift v. Rwy. Passenger, etc., Ass’n, 96 Ill., 309; Pilcher v. N. Y. Life Ins. Co., 33 La. Ann., 322; New York Life Ins. Co. v. Flack, 3 Md., 341, 56 Am. Dec., 742; Winchester v. Stebbins, 16 Gray (Mass.), 52; Wason v. Colburn, 99 Mass., 342; Conn. Mut. Life Ins. Co. v. Ryan, 8 Mo. App., 535; Edington v. Aetna Life Ins. Co., 13 Hun, 543; Williams v. Corson, 2 Tenn. Ch., 269.

In Mutual Life Insurance Company v. Armstrong, 117 U. S., 591, 6 Sup. Ct., 877, 29 L. Ed., 997, it seems that an endowment policy was issued upon the life of one Armstrong, in which it was agreed that the company should pay to the assured or his assigns, on the eighth of December, 1897, or if he should die before that time, to his legal representatives, the amount of the policy. It was issued at the instance of one Hunter, who paid the premium upon it, and took an assignment thereof from the assured. Soon after its issuance, Armstrong was murdered. Suspicion falling upon the as-signee, Hunter, as the perpetrator of the murder, he was indicted and convicted. Subsequently he was. hung. The administratrix of Armstrong instituted suit upon the policy. Upon the trial of the case, upon the assumption that the insurance money was payable, in case that death occurred before'the expiration of the endowment term, to the legal representatives of the assured, and that the policy was not assignable by him, certain evidence was rejected by the court, and its action in that respect was assigned as error in the supreme court of the United States. With regard to this that court said: “The ruling cannot be upheld. The position that the assignment did not take effect because the assured died before the expiration of the policy is untenable. The provision for payment in such case to his legal representatives.was intended to meet the contingency of his dying without having disposed of his interest, and not to limit his power over the contract during his life, and pass the insurance to those who* should represent him after his death.”

We think, upon the authorities, there can be no- doubt of the absolute control of the assured over this policy to the extent, at least, of the contingent interest which he had in ii, and that an assignment made by him, or a disposition of it by his will, would convey to* his assignee or to his legatee whatever interest might accrue to him from this policy; and we are further satisfied that his assignment by parol of the policy to his wife divested him of all contingent interest in it, and vested this interest, in addition to that she already had by its terms, in his wife, and that upon her death leaving him surviving he would take, not under the terms of the policy, but by virtue of his right as surviving husband.

Thai a parol assignment accompanied by delivery of the policy to the wife was sufficient to vest her with the sole interest in this .policy is settled by the authorities.’ In Chapman v. McIlwrath, 77 Mo., 38, 46 Am. Rep., 1, it appears that the policy was made payable to* the assured, his executors or his assigns. After his marriage he said to his wife that it was taken out for her benefit, and he delivered it to her, saying that it was his purpose to vest her with the title, to her sole and separate use. After this delivery it was kept by the wife in her possession until her husband’s death. In a contest between the creditors of the husband and the widow it was held • that this was a good assignment.

Mr. Phillips, in volume 1 of his work on Insurance (4 Ed.), sec. 880, says: “Policies' are usually assigned in writing, hut a mere verbal assignment and delivery of the policy gives to the assignee an equitable right to the proceeds where the policy itself contains no provision to the contrary.” To the same effect is Bliss on Life Insurance, 546. Many cases may he found announcing the same doctrine not only with regard to policies of insurance, hut also as to other dioses in action, among which are: Leinkauf v. Calman, 110 N. Y., 50, 17 N. E., 389; Thompson v. Emery, 27 N. H., 269; Neve v. Charleston Ins. Co., 2 McMul. (S. C.), 237; Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y., 625; Jones v. Gibbons, 9 Vesey, 407.

So it is we are satisfied that after this parol assignment of the husband to his wife, supplementing as it did the provision of the policy which made the proceeds primarily payable to her in the event she outlived her husband, that it stood at the time of her murder exactly as if it had provided originally that it should he payable to her unconditionally upon her husband’s death, and that whatever right or interest accrued thereafter to him ivas as surviving husband.

The right of the husband to the choses in action of the wife by reason of his survivorship rests upon a rule of the common law of this State, and not upon any statutory enactment. It is impossible -to concede, however, that the common law ever contemplated that this rule was to he applied in favor of her husband who makes himself a survivor by the felonious homicide of his wife. If, instead of paying the policy, the insurance company had resisted, and the husband or his representatives were undertaking to enforce payment upon the ground that the contract did not provide for a forfeiture of his rights on account of his felonious act, there can be no doubt upon reason and authority that his or their contention could not be maintained.

In the recent case of Burt v. Union Central Life Ins. Co., 187 U. S., 362, 23 Sup. Ct., 139, 47 L. Ed., 216, a question akin to the one just stated was considered and determined. The facts of the case were that a policy was issued to Wm. E. Burt upon his own life, payable to his wife if living at the time of his death, otherwise to his executors, administrators, or assigns. Subsequently the assured was, upon indictment, convicted of the murder of his wife, and was afterwards hung in pursuance of the judgment of a court of competent jurisdiction.

During the lifetime of the wife one-half interest of this policy was assigned by her and her husband to the plaintiffs in the action, and after her death the assured conveyed to the same parties the remaining interest in the policy. These assigns were also the sole heirs of the assured, and as such were entitled to the full benefit of the policy, and, claiming as assigns as well as heirs, they instituted suit upon the policy. The court said- the question was, “did insurance policies insure against crime?” Tlie court added: “The researches of counsel have found but one case directly in point. Amicable Society v. Bolland, decided by the House of Lords in 1830, reported in 4th Blye, N. R., 194-211. The Lord Chancellor delivering the opinion, after stating the question, answered it in the following brief but cogent words: ‘It appears to- me that this resolves itself into a .very plain and simple consideration. Suppose that in the policy itself this risk had been insured against — that is, that the party insuring had agreed to pay a sum of money year by year upon condition that in the event of his committing a capital felony, and being tried, convicted, and executed for this felony, his assigns shall receive a certain sum of money — is it possible that such a contract could be sustained? Is it not void upon the plainest principles of public policy? .... Now, if a policy of that description, with such a form of condition inserted in it in express terms, cannot, on grounds of public policy, be sustained, how is it to be contended that in a policy expressed in such terms as the present, and after the events which have happened, that we can sustain such a claim? Can we, in considering this policy, give to it the effect of that insertion which, if expressed in terms, would have rendered the policy, so far as that condition went, at least altogether void?’ ”

The supreme court of the United States, in an opinion embodying this quotation from the English case, and after a review of the authorities, held that the suit of the assignees was not maintainable.

It is true in the present case that the insurance company made no contest, but, conceding its liability, paid over the proceeds of the policy, and they await the determination of this suit. But can it be successfully contended that a claim resting upon a felonious act which might have been resisted by the insurance company has acquired more virtue when it is' now asserted by the representative of the murderer to the proceeds of that policy? Can those who represent the husband, who first by the felonious destruction of the life of his‘wife, and then as a felo de se has accelerated the maturity of the policy, take the fruits of his crime under the doctrine of jure.mariti? It is true no case has been called to our attention where such a claim has been either asserted. or repelled. The courts have been called on to consider cases where statutory rights have been insisted on though they rested on the felony of the several parties setting them up, or by others claiming through them. Riggs v. Palmer, 115 N. Y., 506, 22 N. E., 188, 5 L. R. A., 340, 12 Am. St. Rep., 819, is one of the earliest of the cases in the United States in which this question was considered, and by a majority opinion of certainly great moral force it was held that the intention of the legislature in the general laws passed for the devolution of property by will or descent was that they should not operate in favor of one who murdered his ancestor or benefactor in order speedily to come into possession of Ms estate, either as devisee, legatee, or heir at law. As against this view, however, are the cases of Owens v. Owens, 100 N. C., 240, 6 S. E., 794; Deem v. Milliken, 6 Ohio Cir. Ct. R., 357, affirmed in 53 Ohio St., 668, 44 N. E., 1134; Shellenberger v. Ransom, 41 Neb., 631, 59 N. W., 935, 25 L. R. A., 564; Carpenter’s Estate, 170 Pa., 203, 32 Atl., 637, 29 L. R. A., 145, 50 Am. St. Rep., 765.

It will thus be seéñ that the weight of judicial authority is against the holding of the New York court, and it may be conceded that the better legal reasoning is to. be found in the opinions dissenting from the views of that court. We do not think, however,' that any of these cases meet or control the. question with which we are now dealing, and we do not. rely upon either one of them for support of our conclusion in this case. For it may be true that it would be a stretch of judicial authority to hold that an unambiguous statute providing a line of devolution of property should be interpreted to mean that this line was to be broken upon the felonious homicide of the ancestor or testator by the. one next in succession, but is this equally true as to one who rests his claim on this common-law rule?

It is universally conceded that the fundamental principles of the common law are unchangeable, yet the courts recognize the necessity of flexibility in the application of old rules to new cases, so as to enable them to adopt these rules “to the ever-varying conditions and emergencies of human society.” Thus, in Woodman v. Pitman, 79 Me., 456, 10 Atl., 321, 1 Am. St. Rep., 342, it is said: “The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise, and the law has expansive and adaptive force enough to respond to the demands thus made of it, not by subverting, but by framing new combinations, and making new applications out of its already established principles; the result produced being, ‘only the new corn that cometh out of old fields.’ ”

This court, in Jacob v. State, 3 Hum., 493, announces the same general doctrine in these words: “The common law of the country will never be entirely stationary, but will be modified and extended by analogy, construction, and custom so as to embrace new relations springing up from time to time from an amelioration or-change of society. The present common iaw of England is as dissimilar from that of Edward III as is the present state of society. And we apprehend that no' one could be found to contend that hundreds of principles which have in modern times béen examined, argued, and determined by the judges are not principles of the common law because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their depositories because the occasion which called for their exposition had not arisen. The common law, then, is not like a statute, fixed and immutable, but by positive enactment, except where a principle has been adjudged as the rule of ac-. tion.”

It has been well said that there are certain general and fundamental maxims of the common law which control laws as well as contracts. Among these are: “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 adopted by public policy, and have their foundation in universal law administered in all civilized countries.” These maxims embodied in the common law, and constituting an essential part of its warp and woof, are found announced both in. text-books and in reported cases. Without their recognition and enforcement by the courts, their judgments would excite the indignation of all right-thinking people. The first of these maxims is applied in order to prevent one from taking the benefit of his' own fraud. Why should not the last be enforced so as to forbid a party receiving the fruits of his own crime?

The last of these maxims cannot be reconciled with the rule insisted on by the administrator of A. E. Justice. This rule, he insists, gives to him as a matter of law the proceeds of this policy. Though steeped in crime, and without reference to whether the prior death of Mrs. Justice came naturally or was the result of the felonious assault of her husband, yet his contention is that the policy with its proceeds passed jure mariti to this husband, and upon his death to himself as the legal repre.sentative. If this be true, it logically follows that, if he had killed the wife for the purpose of setting in motion this rule, and under it becoming the absolute owner of her choses in action, his common-law right would be enforced. Such a result, if essential, we think- would be a reproach to the jurisprudence of the country, and should arouse the legislative conscience to speedy corrective legislation.

But we do not think that it is essential. The rule in question, though statutory in England, is a common-law rule of property with us, administered by reason of the relation of husband and wife and of the respective rights and obligations growing out of this relation. Carried to the length now insisted upon, it necessarily encounters, among others, the fundamental maxims already referred to that no man shall found a claim upon his own iniquity, or acquire property by his own crime. The rule thus contended for and these underlying principles of the common law cannot stand together. They are utterly irreconcilable if the present contention is sound. But we do not think it sound. To the contrary, we are satisfied that the rule and these maxims find their consistency in the flexibility of the common law and its-power of adapting itself to new conditions and new cases. The present is one calling for a limitation on the rule in question, to wit, that it shall not apply where it is called into being by the crime of the husband. Thus qualified, there is perfect reconciliation between the rule and these maxims. Nor do we regard this as an enunciation of. a. new principle just called into life, but rather, as is said in Jacob v. The State, supra, one of those “great and immutable principles which have slumbered in their depositories because the occasion which called for their exposition had not arisen” heretofore.

As was said by the court in Mutual Life Insurance Company y. Armstrong: “It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired.” In Cleaver v. Mutual Reserve Fund Life Association, L. R., 1 Q. B. Div., 147, there was a controversy over a policy taken out by James Maybrick, a member of the association, upon his life, payable to Florence E. Maybrick, his wife, if living at the time of the death of the husband; otherwise to his legal representatives. The assured died in 1889, and after his death Florence E. Maybrick assigned by deed to Cleaver all of her interest in the policy. The controversy in the case was between the assignee, the insurance company, and the administrators of the deceased. The association undertook to resist recovery on this policy upon the fact established in the criminal prosecution against the surviving wife that the assured had died from poison feloniously administered by her. • This defense, so far as the legal representatives of the deceased was concerned, was held not maintaifiable, but in so far as the surviving wife and her assignee the court held that her felonious act deprived her of all interest in the policy, as well as one claiming through her. Esher, M. R., said: “The rule of public policy in such a case prevents the person guilty of the death of the insured, or any person "claiming through such person, from taking the money.” Fry, L. J., in dealing with the same question in a separate opinion, used this language: “It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanor. It may be that there is no authority directly asserting the existence of the principle; but the decision of the House of Lords in Fauntleroy’s Case, 4 Blye, N. S., 194, appears to proceed on this principle, and to be a particular illustration of it. This principle of public policy, like all such principles, must be applied to all cases to which it can be applied, without reference to the particular character of the right asserted or the form of its assertion. In Fauntleroy’s Case, . . . it was held to prevent the assignees of a forger from claiming the benefit of a policy on his death at the hands of justice by reason of his forgery. It would equally apply, it appears to me, to the case of a cestui que trust asserting a right as such by the reason of the murder of the prior tenant for. life or of the assured in a policy; and it must be so far regarded in the construction of acts of Parliament that general .words which might in-elude cases obnoxious to this principle must be read and construed as subject to it.”

We think, if it is a sound holding that one named as the payee of a policy by. the felonious homicide of the assured is, with his assignee, cut off from receiving the benefit of- that policy notwithstanding its expressed terms, that with much more force it can be insisted that one who claims under the common-law rule invoked in this case must be disappointed of a recovery.

This view of the case relieves us from considering the contention that to deprive the surviving husband of this chose in action by reason of his felony is to enforce a forfeiture of estate against him in the face of section 12 of article 1 of the State constitution. The application of the principle, which we hold to be fundamental and controlling in this case, intervenes between him and the property, so that he never acquired an estate and therefore forfeited nothing in it.* The result is that the decree of the court of chancery appeals is affirmed.