I concur with the majority’s reversal of the judgment of the court of appeals and also find merit in the essence of Justice Holmes’ thoughtful opinion. However, I deem it appropriate to add some remarks regarding the appellate court’s determination that identity of a killer must be conclusively established as a predicate to maintaining a civil disqualification proceeding.
The appellate court’s distinction of one element of an intentional killing, i.e., identification, as not being ascertainable in a civil proceeding, from all other disputed elements (sanity, intent, etc.) which are determinable, is without case support and is error. In so holding, the appellate court blurred the difference between punishment, which is solely a criminal matter, and disqualification from receiving insurance proceeds, which is a proper subject for civil suit. See Parts III and IV of the majority opinion.
Both the appellate court and appellee distinguish the case sub judice from all past precedent concerning the element of identity. The appellate court observed that “neither in Ohio nor elsewhere do we find any indication that the common law permitted a secondary beneficiary of an insurance contract to disqualify the primary beneficiary by proving civilly the disputed fact that the primary beneficiary committed the homicide.”
In this regard, the recent decision of the Supreme Court of Kansas in Harper v. Prudential Ins. Co. (1983), 233 Kan. 358, 662 P. 2d 1264, embraced this very issue and is of guidance. The fact pattern underlying this well-reasoned opinion is very similar to the instant case. In Harper, the primary beneficiary of a life insurance policy was the husband of the insured. The insured wife had been shot and killed in their home. There was no evidence of a struggle or robbery and her husband was the prime suspect in the killing. Later, the husband, who claimed no involvement in the killing and who had not been convicted, charged, or even arrested, filed a claim for the life insurance benefits. The insurance company in*49vestigator also concluded, as did the sheriff, that the beneficiary husband had most likely killed his insured wife. Regardless of this suspicion, the company paid the insurance proceeds to the husband believing it was bound to do so under a Kansas conviction statute which, like Ohio’s, automatically disqualified convicted killers.1
The secondary beneficiary filed suit against the insurance company claiming it had improperly paid an unconvicted murderer.
On appeal, the Supreme Court of Kansas agreed with the secondary beneficiary’s contention that such a disqualification action could be maintained. The court held that a person who is designated as the primary beneficiary in a policy of life insurance will be barred from recovering under the insurance policy if it is established in an interpleader action that he feloniously killed the insured, regardless of whether he is actually convicted of the killing.
The Kansas court reasoned that the rule prohibiting a murderer-beneficiary from receiving the proceeds of a life insurance policy is predicated upon the common-law maxim that no one will be permitted to profit by his own fraud, take advantage of his own wrong, found any claim upon his own iniquity, or acquire property by his own crime. As regards Kansas’ conviction statute, the court held that “[t]he statute does not preclude judicial application of the common-law rule in cases where the beneficiary killed the insured but has not been convicted of the crime.” Id. at 367.
The Harper court concluded that the insurance company should have refused payment pending closure of the police investigation. The court went on to find that the insurer could have filed an interpleader action to afford the secondary beneficiary an opportunity to protect his interests and to shield the insurer from a double liability. The latter course of action is exactly that followed by Equitable herein and is appropriate to determine the alleged disqualification and identity of the husband as the killer.2
Accordingly, I agree with the majority that when the beneficiary has been convicted of a designated homicide offense, R.C. 2105.19 merely eliminates the need to prove in a civil action that the beneficiary committed a felonious and intentional killing of the insured. When the civil disqualification statute does not apply, as in this case, Ohio’s common law is triggered. In that event, a person challenging the beneficiary’s claim has *50the burden of proving the beneficiary’s identity and responsibility for the intentional killing, by a preponderance of the evidence. See, also, Huff v. Union Fidelity Life Ins. Co. (1984), 14 Ohio App. 3d 135, 137.
Sweeney and C. Brown, JJ., concur in the foregoing opinion.K.S.A. 59-513 (1970) provides:
“No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will * * * or otherwise from such other person any portion of the estate in which the decedent had an interest * *
In Harper, supra, the husband was eventually charged with and convicted of his wife’s murder. However, this fact was not controlling as the Kansas Supreme Court considered the insurance company’s payment as improper at a point in time when the husband, like appellee, was still a suspect.