In Re Perry's Estate

Annotate this Case

123 S.E.2d 99 (1961)

256 N.C. 65

In the Matter of the ESTATE of Paul PERRY, Deceased, Roland Perry, Administrator.

No. 532.

Supreme Court of North Carolina.

December 13, 1961.

*100 Pittman, Staton & Betts, Sanford, for petitioner, appellant.

Hoyle & Hoyle, Sanford, for respondent, appellee.

BOBBITT, Justice.

The order from which petitioner appeals relates directly and solely to the $1,091.53 now held by the clerk. This is the (net) amount of the rents collected by the administrator from real estate owned by Paul Perry and wife, Lorraine Perry, as tenants by the entirety, at the death of Paul Perry, intestate, on July 15, 1956.

Lorraine Perry, the petitioner, wilfully and feloniously killed and murdered Paul Perry, her husband; and, at the October-November Term, 1956, of Lee Superior Court, she entered a plea of guilty of murder in the second degree.

Rents from said estate, accrued but unpaid at the death of Paul Perry, constituted a part of his personal estate. Clearly, under express statutory provisions and on equitable principles, Lorraine Perry has no interest in such accrued rents. G.S. §§ 28-10, 30-4, 52-19; Garner v. Phillips, 229 N.C. 160, 47 S.E.2d 845.

It may be implied, although not expressly stated, that the $1,091.53 was derived wholly from rents accruing subsequent to the death of Paul Perry. We shall assume this to be true.

Incidents of an estate by the entirety include the following: (1) "Upon the death of one, either the husband or the wife, the whole estate belongs to the other by right of purchase under the original grant or devise and by virtue of survivorship, and not otherwise, because he or she was seized of the whole from the beginning, and the one who died had no estate which was descendible or devisable." Davis v. Bass, 188 N.C. 200, 204, 124 S.E. 566, 568. (2) "* * the husband is entitled during coverture to the full possession, control and use of the estate, and to the rents and profits arising therefrom to the exclusion of the wife." *101 Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 486, 80 S.E.2d 472, 477.

Decisions in other jurisdictions are cited and discussed in the Annotation, "Felonious killing of one cotenant or tenant by the entireties by the other as affecting latter's rights in the property," 32 A.L.R.2d 1099, which supersedes the Annotations in 51 A.L.R. 1106 and 98 A.L.R. 773.

As stated by Devin, J. (later C. J.), in Garner v. Phillips, supra: "It is a basic principle of law and equity that no man shall be permitted to take advantage of his own wrong, or acquire property as the result of his own crime." [229 N.C. 160, 47 S.E.2d 846.]

This Court has not directly passed upon the legal consequences to an estate by the entirety where the wife murders the husband. In Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 191, 51 A.L.R. 1100, the husband murdered the wife. Since both petitioner and respondent cite and rely thereon, full consideration of the factual situation and of the decision therein is appropriate.

In Bryant, the plaintiffs were the children of Ida Bryant, the deceased wife, and of Wash Bryant, her husband-murderer. Ida Bryant, at the time of her death, was in good health; and, under the mortuary table, had a longer expectancy of life. In the superior court, it was adjudged that the defendant (husband-murderer) held the legal title in trust for the plaintiffs; that the plaintiffs were the equitable owners and entitled to the actual possession thereof, "freed and discharged from the claims of the defendant," and that the defendant account to the plaintiffs for the rents and profits received by him. It was adjudged that defendant convey the land to plaintiffs and, upon his failure to do so, the judgment should operate as such conveyance. Upon the defendant's appeal, the said judgment was modified and affirmed.

The equitable doctrine on which this Court based decision was stated by Adams, J., as follows: "As a question of common law the homicide does not prevent the legal title from passing to the criminal as the heir or devisee of his victim, but equity, acting in personam, compels the wrongdoer who has acquired the res to hold it as a constructive trustee of the person wronged, or of his representatives, if he be dead; and this result follows, although the homicide may not have been committed for the express purpose of acquiring title, if by reason of the homicide the title would have passed to the criminal under the common law." This equitable doctrine is succinctly stated in Restatement of the Law, Restitution § 188, as follows: "Where 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."

Applying this equitable doctrine, it was held the defendant, by his crime, could not take away his wife's contingent right to the whole estate upon surviving him. Hence, the defendant was held "a constructive trustee for the benefit of her heirs; the judge in effect having found as a fact that the deceased would have survived him." Immediately following, Adams, J., adds this dictum: "Even in the absence of such finding, equity would probably give the victim's representatives the benefit of the doubt."

Pertinent to said dictum, Adams, J., cites Ames, Lectures on Legal History, 321, where the author, in respect of joint tenancies, states: "* * * it being impossible to know which of the two would have outlived the other, equity would doubtless give the innocent victim the benefit of the doubt, as against the wrongdoer who had deprived him of his chance of survivorship, * * *" (Our italics.) In the Restatement, Restitution § 188, Comment a, it is stated: "Thus, if the murderer had an interest in property contingent upon his surviving his victim, he is not entitled to keep the property, since although he survives the victim he does so as a result of the murder, *102 and but for the murder he might have predeceased the victim, in which case he would not have been entitled to the property. It is immaterial that because of their respective ages, state of health or the like, it is probable that the murderer would have been the survivor." In this connection, see Colton v. Wade (Del.Ch.), 80 A.2d 923.

In Bryant, it was held the defendant, by his crime, did not forfeit or impair his own vested right to the possession, control and use of the property and to the rents and profits therefrom. The decision is stated as follows: "Our conclusion is that the appellant holds the interest of his deceased wife in the property as a trustee for her heirs at law; that he [should] be perpetually enjoined from conveying the property in fee; that the plaintiffs should be adjudged the sole owners, upon the appellant's death, of the entire property as the heirs of their deceased mother; and that the judgment as thus modified should be affirmed." (Our italics.)

Here the wife murdered her husband. During their joint lives, she had no right to the possession, control and use of the estate, and no interest in the rents and profits therefrom. She could not, by her crime, take away her husband's vested rights or acquire such rights. In respect thereof, she is a constructive trustee for Sylvia K. Perry, who is the equitable owner thereof. For present purposes, it is sufficient to say that this status continues at least during the full term of Paul Perry's life expectancy.

Petitioner contends she is entitled to at least one-half of the rents and profits during her lifetime. She contends the husband's right to the rents and profits from an estate by the entirety during the joint lives of husband and wife is in recognition of his obligation to support his wife. True, "the rents and profits therefrom, which belong to the husband, may be charged with the support of his wife." Porter v. Citizens Bank, 251 N.C. 573, 577, 111 S.E.2d 904, 908. But in this respect, such rents and profits have the same status as other income and assets owned exclusively by the husband. It would be strange indeed if a wife who murders her husband could assert rights on the ground she thereby relieved him of his obligation to support her.

In the Annotation, "Married Women's Act as abolishing estates by entireties," 141 A.L.R. 179, 202, it is stated: "In a majority of jurisdictions the view is adopted that Married Women's Acts have destroyed the husband's exclusive right to the control, possession, and usufruct of the estate." However, in North Carolina and other jurisdictions, this view was not adopted. As stated by Stacy, J. (later C. J.), in Davis v. Bass, supra: "The husband was considered the owner of such rents and profits at common law, and none of the properties and incidents of this particular estate have been changed or altered in their nature and character by statute or by constitutional provision in North Carolina. It will be observed that article 10, § 6 of the Constitution deals with the `sole and separate property' of married women; and the Martin Act of 1911 (C.S. § 2507) has been construed as not affecting estates held by husband and wife as tenants by the entirety. Jones v. Smith, 149 N.C. 318, 62 S.E. 1092, 19 L.R.A.(N.S.) 1037."

In a comprehensive article, "Tenancy by Entireties," by Oval A. Phipps, appearing in 25 Temple Law Quarterly 24, the author attaches a table indicating the present attributes of an estate by the entirety in the several states. In states where the wife and husband, during their joint lives, are equally entitled to the possession, control and use of the property, and to the rents and profits therefrom, it would seem, upon application of the equitable principles stated in Bryant, that the wife, notwithstanding she murdered her husband, would retain a vested interest to the extent of one-half of such rents and profits. But, as stated in the cited article, "In Massachusetts, Michigan and North Carolina, the husband, and only he, is vested with exclusive rights to the possession, management, and control of *103 usufruct and profits during the marriage, but he may do nothing without the wife's joinder to defeat the survivorship right of the wife."

Attention is called to Chapter 210, Session Laws of 1961, which adds to the General Statutes a new chapter, designated Chapter 31A, entitled "Acts Barring Property Rights." It appears this statute is based largely on an article, "Acquisition of Property by Wilfully Killing AnotherA Statutory Solution," by John W. Wade, appearing in 49 Harvard Law Review 715 et seq. Suffice to say, this 1961 Act has no bearing on the present case. Decision here is based on the North Carolina law with reference to an estate by the entirety and upon the equitable principles declared and underlying the decision in Bryant.

For the reasons stated, the judgment of Judge McKinnon is affirmed.


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