Deem v. Millikin - 1892 Ohio Misc. LEXIS 55 (Cir. Ct. May 1, 1892)

Rule:

The statute of descents provides in clear terms that where one dies intestate and seized in fee of lands, they shall descend and pass to the children of such intestate; and the courts cannot, upon considerations of policy, so interpret the statute so as to exclude from the inheritance one who murders such intestate.

Facts:

The defendants in error, by their answers and cross-petitions filed in the court of common pleas, allege that Caroline Sharkey died intestate, January 11, 1889, and seized in fee of certain real estate in said county, leaving her son Elmer L. Sharkey, her sole heir at law; that thereafter, said Elmer L. Sharkey executed to them several mortgages to secure the payment of certain promissory notes, their cross-petitions containing appropriate averments as to the execution of the notes and mortgages, and for the assertion of a lien upon said real estate by virtue thereof. Answering these cross-petitions, the plaintiffs in error, who are brothers and sisters of said Caroline Sharkey, deceased, admitting that said Elmer L. Sharkey was her son and only child, and that she died intestate, allege that on or about the 11th day of January, 1889, said Elmer L. Sharkey murdered her for the purpose of succeeding to the title to said real estate, and having by due process of law, been convicted of said crime, he was hanged therefor December 19, 1890; wherefore they allege that said real estate did not descend to him. In the court of common pleas demurrers to these answers were sustained, and distribution was ordered in favor of said mortgagees. 

Issue:

Did the lower court err in ordering the distribution in favor of the mortgagees?

Answer:

No.

Conclusion:

No inference favorable to the plaintiffs in error can be drawn from the supposed familiarity of the law makers with the principles of the civil law where, by an exception, they who murder their ancestors are excluded from the inheritance. The natural inference is that when they incorporated the general rule into the statute, and omitted the exception, they intended that there should be no exception to the rule of inheritance prescribed. The provisions of the twelfth section of the Bill of Rights may have suggested the deliberate comprehension of this case within the provisions of the statute. "No conviction shall work corruption of blood or forfeiture of estate." Certainly, the construction claimed by counsel for the plaintiffs in error would not involve a forfeiture of estate, for their contention is that no estate vested in the slayer. But the law makers may have entertained most serious doubt, if they contemplated the change in the statute which we are now asked to make, whether it would not contravene the constitutional provision as to the corruption of blood. Corruption of blood and forfeiture of estates were, at common law, the consequences of attainder. An attainted person can "neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of fee, subject to the king's superior right of forfeiture; and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive title through him to a remoter ancestor." Since the legislature did not undertake to create the supposed exception to the statute of descents, we are not required to determine whether it would have been repugnant to the constitutional provision referred to. But in the field of speculation to which Riggs v. Palmer invites, this provision suggests grave reasons why a legislative body, careful to respect both the letter and the spirit of the constitution, should hesitate to attach to felonies any of the consequences of the corruption of blood.