We concur in the conclusions of law found by the learned referee. Elmer E. Palmer is permitted by our law to take the property devised and bequeathed to him bjr the w-ill of his grandfather, although he himself willfully murdered him.
The civil law, and the law in those countries which derive their jurisprudence from it, as we are instructed by the diligence of counsel, liolds otherwise. (Domat Civil Law, part 2, book 1, tit. 1, § 3; Pothier on Successions, chap. 1, § 2, art. 4, § 2; Poullier, vol. 4, p. 113; Duran ton, vol. 6, p. Ill; Marcade, vol. 3, p. 42; Spanish Partidas, 994.)
*391The Civil Code of Lower Canada (sec. 610) copying from Code Napoleon (sec. 727), reads as follows: “ The following persons are unworthy of inheriting, and, as such, are excluded from successions : 1. He who has been convicted of killing or attempting to kill the deceased.”
Section 893, substantially like sections 955,1046, Code Napoleon: “ The revocation of a will may be demanded: 1. On the ground of the complicity of the legatee in the death of the testator.”
It is manifest that we have omitted in our State to provide for the like contingency.
¥e are cited to the case of The New York Mutual Life Insurance Company v. Armstrong (117 U. S., 591), in which it was held that the beneficiary and owner of a policy of life insurance, by murdering the insured, forfeited all rights under it. The court said: “ As well might he recover insurance money upon a building that he had willfully fired.” That was a case of contract; it certainly could not be held that the company had promised to pay the insurance money to the murderer of the person whose life is insured. Such a contract would be so unreasonable and against public policy, that the courts could well hold that the minds of the contracting parties had never met upon such a proposition, and if they had, the contract would be void.
But a will is not a contract. It is the designation in the forms prescribed by statute, by the testator, of the persons who shall enjoy his property after he is dead. The law has pronounced its sentence upon this murderer, and that sentence does not embrace incapacity to take under this will. If, as we do not think, he is, by virtue of the sentence, civily dead, he did not become so until sentenced, and the sentence did not relate back to the testator’s death, and therefore could not affect any question at issue here: Perhaps this case wiil suggest to the law makers the imposition of such incapacity in like cases. But as it has not been imposed by the legislature, we cannot declare it.
The judgment is affirmed, with costs.
Learned, P. J., Bookes, J., concurred.Judgment affirmed, with costs.