IN RE NALE ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of the Estate of
MICHAEL STEPHEN NALE, Deceased.
FOR PUBLICATION
November 23, 2010
9:10 a.m.
JULIA COOK, Successor Personal Representative
of the Estate of MICHAEL STEPHEN NALE,
Deceased,
Petitioner-Appellee,
v
No. 293802
Macomb Probate Court
LC No. 2007-191792 - DE
FAYETTE L. NALE,
Respondent-Appellant.
Before: OWENS, P.J., and WHITBECK and FORT HOOD, JJ.
PER CURIAM.
Respondent appeals as of right the probate court’s grant of petitioner’s petition for
forfeiture and revocation of benefits. Respondent argues that the probate court improperly
construed MCL 700.2803, Michigan’s “Slayer Statute,” as preventing her, as one convicted of
voluntary manslaughter, from receiving benefits from the decedent’s estate. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
I. FACTS
Respondent’s husband, Michael Stephen Nale (“decedent”), was stabbed to death on
September 13, 2007. Respondent was charged with second-degree murder, MCL 750.317, in his
death. On February 19, 2009, a jury convicted her of voluntary manslaughter, MCL 750.321 and
she was sentenced to 34 to 180 months in prison.
On August 5, 2009, petitioner, Julia Cook, successor personal representative of
decedent’s estate, filed in Macomb Probate Court a petition of forfeiture and revocation of
benefits, arguing that respondent had forfeited all benefits from decedent’s estate under MCL
700.2803 because she had “feloniously and intentionally” killed the decedent. Respondent
argued that the term “feloniously and intentionally,” as used in MCL 700.2803, refers to first-1-
and second-degree murder, but not manslaughter. At a hearing on the petition, the judge
disagreed and entered an order granting the petition.
II. STANDARD OF REVIEW
In general, an appeal from a probate court decision is “on the record, not de novo.” MCL
600.866(1); In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008).
Nonetheless, questions of law, such as issues of statutory construction, are reviewed de novo.
Temple, 278 Mich App at 128. The instant case involves a question of law construing MCL
700.2803, and our review is de novo.
III. ANALYSIS
When interpreting statutes, a court’s primary goal is to determine and give meaning to the
Legislature’s intent. McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608 NW2d 57
(2000). Once ascertained, the Legislature’s intent must prevail despite any conflicting rule of
statutory construction. Terzano v Wayne Co, 216 Mich App 522, 526-527; 549 NW2d 606
(1996). This Court may determine legislative intent by considering the language of the statute
and the general scope the statute seeks to accomplish or the evil it seeks to remedy. Cowen v
Dep’t of Treasury, 204 Mich App 428, 431-432; 516 NW2d 511 (1994). In construing the
language of a statute, “the Legislature is deemed to act with an understanding of common law in
existence before the legislation was enacted.” Nation v WDE Electric Co, 454 Mich 489, 494;
563 NW2d 233 (1997).
The Estates and Protected Individuals Code (“EPIC”), MCL 700.1101 et seq., provides
that a devisee who “feloniously and intentionally” kills the decedent forfeits all benefits from the
decedent’s estate. MCL 700.2803 states, in pertinent part:
(1) An individual who feloniously and intentionally kills the decedent forfeits all
benefits under this article with respect to the decedent’s estate, including an
intestate share, an elective share, an omitted spouse’s or child’s share, a
homestead allowance, a family allowance, and exempt property. If the decedent
died intestate, the decedent’s intestate estate passes as if the killer disclaimed his
or her intestate share.
(2) The felonious and intentional killing of the decedent does all of the following:
(a) Revokes all of the following that are revocable:
(i) Disposition or appointment of property made by the decedent to the killer in a
governing instrument.
(ii) Provision in a governing instrument conferring a general or nongeneral power
of appointment on the killer.
(iii) Nomination of the killer in a governing instrument, nominating or appointing
the killer to serve in a fiduciary or representative capacity, including a personal
representative, executor, trustee, or agent.
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(b) Severs the interests of the decedent and killer in property held by them at the
time of the killing as joint tenants with the right of survivorship, transforming the
interests of the decedent and killer into tenancies in common.
This provision, sometimes referred to as a “slayer rule,” is derived from the common law rules
that one who commits a murder cannot benefit by his or her criminal act, and that no devisee can
take under the will of a testator whose death has been caused by the criminal act of the devisee.
Garwols v Bankers Trust Co, 251 Mich 420, 428; 232 NW 239 (1930).
Respondent was convicted of voluntary manslaughter. She argues that manslaughter
does not involve an “intentional killing,” and notes that she was specifically acquitted of
murdering her husband. Thus, respondent asserts that MCL 700.2803 does not prevent her from
receiving benefits from the estate of her late husband. The issue in this case rests, therefore, on
the meaning of the term “intentionally” as used by the legislature in MCL 700.2803 when
describing the killing of the decedent.
The manslaughter statute, MCL 750.321, encompasses two types of common-law
manslaughter: voluntary and involuntary. People v Townes, 391 Mich 578, 588-589; 218 NW2d
136 (1974). Although the punishment for manslaughter is defined by statute, the common law
defines the elements of voluntary and involuntary manslaughter. People v Pouncey, 437 Mich
382, 388; 471 NW2d 346 (1991).
The Michigan Supreme Court has defined voluntary manslaughter as an “intentional
killing committed under the influence of passion or hot blood produced by adequate provocation
and before a reasonable time has passed for the blood to cool.” People v Mendoza, 468 Mich
527, 534-535; 664 NW2d 685 (2003), citing Maher v People, 10 Mich 212, 219 (1862); People v
Fortson, 202 Mich App 13, 19; 507 NW2d 763 (1993). An essential element of the crime of
voluntary manslaughter is the intent to kill or commit serious bodily harm. People v Delaughter,
124 Mich App 356, 360; 335 NW2d 37 (1983). Murder and voluntary manslaughter are both
homicides that share the element of being “intentional” killings. People v Hess, 214 Mich App
33, 38; 543 NW2d 332 (1995). However, the existence of provocation characterizes the offense
of voluntary manslaughter, Pouncey, 437 Mich at 388, whereas the presence of malice
characterizes murder, Mendoza, 468 Mich at 534-535.
In contrast, involuntary manslaughter has been defined as:
“the killing of another without malice and unintentionally, but in doing some
unlawful act not amounting to a felony nor naturally tending to cause death or
great bodily harm, or in negligently doing some act lawful in itself, or by the
negligent omission to perform a legal duty.” [People v Scott, 29 Mich App 549,
551; 185 NW2d 576 (1971), quoting People v Ryczek, 224 Mich 106, 110; 194
NW 609 (1923).]
Courts have, therefore, specifically designated voluntary manslaughter an “intentional” killing.
Prior to the enactment of MCL 700.2803 and its predecessor, MCL 700.251, the
Michigan Supreme Court twice referred favorably to a description of the common-law “slayer
rule” as described in Wharton on Homicide (3d Ed.):
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To permit a person who commits a murder, or any person claiming under him, to
benefit by his criminal act, would be contrary to public policy. And no devisee
can take under the will of a testator whose death has been caused by the criminal
and felonious act of the devisee himself. And, in applying this rule, no distinction
can be made between a death caused by murder and one caused by manslaughter.
[Emphasis added.]
See Garwols, 251 Mich at 428; Budwit v Herr, 339 Mich 265, 270; 63 NW2d 841, 843 (1954).
While those cases did not involve the application of the common law rule in the context of
manslaughter, they nonetheless reveal that the common law application of the slayer rule extends
beyond the crime of murder to manslaughter.
When the Legislature enacts statutes in derogation of the common law, it is presumed to
know the existence of the common law. Wold Architects & Engineers v Strat, 474 Mich 223,
223-234; 713 NW2d 750 (2006). Had the Legislature, knowing the state of the common law,
intended to limit the operation of MCL 700.2803 to instances where the beneficiary murders the
decedent, it could have used that specific term.1 Furthermore, when a statute contravenes the
common law, courts must construe the statute so that it results in the least change in the common
law. Nation, 454 Mich at 494. Given that there is no reason to believe that the Legislature
intended to limit the operation of MCL 700.2803 in this way, it is fair to conclude that it intended
to encompass the crimes that the common law deems “intentional killings,” including voluntary
manslaughter.
Because voluntary manslaughter has been defined by Michigan courts as an intentional
killing, and because the common law “slayer” rule has never been limited to the crime of murder,
it follows logically that MCL 700.2803 operates to prevent one convicted of voluntary
manslaughter from benefiting from the estate of the decedent. Because respondent was
convicted of voluntary manslaughter, she is subject to the forfeiture rule of MCL 700.2803.
Affirmed.
/s/ Donald S. Owens
/s/ William C. Whitbeck
/s/ Karen M. Fort Hood
1
Cf. Ernsting v Ave Maria College, 274 Mich App 506; 736 NW2d 574 (2007) (had Legislature
intended to limit the term “law enforcement agency” to mean only state and local law
enforcement agencies, it could have expressly so stated, as it did in other sections of
Whistleblowers’ Act).
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