Gallimore v. Washington

SCHWELB, Associate Judge,

dissenting:

This case requires us to consider two long-established legal maxims and, if possible, to find a way to accommodate them both. I refer to these maxims as Nos. I and II.

Maxim I, which sounds especially formidable in the Latin original,1 and which, while “deeply rooted in our jurisprudence,” remains very much alive today, see Farris v. Compton, 652 A.2d 49, 55 (D.C.1994), teaches us that “no man may take advantage of his own wrong.” Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959). Maxim II, also of ancient vintage, instructs that “[ejquity abhors forfeitures,” Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 203 (D.C.1991), and so, indeed, does the law. Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 367-68 (D.C. 1984).

In my opinion, the majority, seeking to vindicate Gallimore’s rights by vigorously enforcing Maxim II, has significantly diluted the force of Maxim I. The trial judge, on the other hand, applied Maxim I with vigor, but believed (mistakenly, in my view), that Maxim II has no application. See Washington v. Gallimore, 122 Daily Wash.L.Rptr. 1125 (Super.Ct.D.C.1994).

The resolution of the case which is the most faithful to our statute and to underlying equitable principles, and which maintains the integrity of both maxims, can be found in the Restatement of Restitution, to which my colleagues accord less weight than it deserves. Gallimore should receive his share of the income from the property during his lifetime, but the entire property should pass to Ms. Washington’s heirs after Gallimore’s death.

I.

THE MAJORITY DILUTES MAXIM I

Section 19-320(a) of the District of Columbia Code (1990), quoted in full in note 1 to the majority opinion, is perhaps the paradigmatic statutory expression of the maxim that no man may profit from his own wrong.2 Paraphrased to fit these facts, the statute provides that Gallimore takes “no estate or interest in property of any kind” from Ms. Washington by way of “inheritance, distribution, devise or bequest,” or “remainder, reversion, or executory devise” dependent upon Ms. Washington’s death. The statute goes on to state that any such “estate, interest or property” to which Gallimore “would have succeeded or would have taken in any way” from or after Ms. Washington’s death “goes, instead, as if [Gallimore] had died before [Ms. Washington].” (Emphasis added). This court has held that § 19-320 is to be broadly construed. See Napoleon v. Heard, *1212455 A.2d 901, 902 (D.C.1983). This means that ambiguities, if any, must be resolved against Gallimore to assure that he does not profit in any way from his murder of Ms. Washington.

Notwithstanding the broad phrasing of the statute and the decision in Napoleon, my colleagues have decreed a partition of the jointly held property and have ordered the distribution to Gallimore of an undivided share of it.3 The trial judge explained effectively why Gallimore should not be rewarded in this way:

First and foremost, as mentioned above, awarding the Defendant an unrestricted one-half interest in the property allows the Defendant to take advantage of his own wrong. John Wade, [supra note 1], 49 HaRV.L.Rev. at 733.[4] The right of surviv-orship in a joint tenancy “means that the joint tenant who survives the other coten-ants takes the entire estate.” 4A RiCHARD R. Powell, Powell on Real PropeRty, ¶ 624[2], at 51-11 (1993). The Decedent’s ability, or right, to survive the Defendant has been snuffed out at the hands of the Defendant. Granting the Defendant a one-half interest in the property ... rewards the Defendant for his act of murder by giving him a definite interest in the property.
The Defendant attempts to differentiate a joint tenancy from other interests explicitly covered by D.C.Code § 19-320(a) by advancing the statutory purpose as being to “prevent the morally repugnant result of awarding a new property interest to a slayer based on his illicit act.” Defendant’s Motion, p. 6. The Defendant claims that since a joint tenant possesses a one-half interest that is “easily severed at any time,” recognizing him as a tenant in common with a one-half interest does not award a new property interest.
This Court wholly disagrees with the Defendant’s conclusion. The Defendant opted to possess property as a joint tenant, running the risk that he could lose his entire interest should he predecease Annie Mae Washington. The Defendant never moved to partition the property. Awarding the Defendant a one-half interest as a tenant in common provides the Defendant with the certainty of some kind of an interest. The Court concludes that this new certainty, in contrast to the prior possibility, is, in fact, a new property interest.

Washington, supra, 122 Daily Wash.L.Rptr. at 1133 (emphasis in original).

It is true that Gallimore could have sought a partition of the property during Ms. Washington’s lifetime. He began living in the house in 1984, however, and made no attempt to secure a partition during the following ten years. Id. at 1133 & n. 8. I agree with the trial judge that the court should not now do for a murderer’s benefit that which he could have done, but did not do, for himself.5

The decedent was seven years younger than Gallimore, but I agree with the trial judge that this is irrelevant. Id. at 1133 & n. 6 (citation omitted). We can never know which of the two would have survived the other if Gallimore had not murdered Ms. Washington. Section 19-320, however, resolves any problem presented by the lack of *1213a crystal ball by effectively creating a conclusive presumption that the decedent would have survived the murderer. It provides that any affected interest in property “goes, instead, as if the [murderer] had died before the decedent.”

If there had been no murder, and if Galli-more had pre-deceased Ms. Washington, Gal-limore would have had an interest during his lifetime, but Ms. Washington would have owned the property outright at his death. The majority’s disposition awards Gallimore substantially more than he would have had if he had not killed the decedent. This result, in my opinion, is irreconcilable both with the letter of the statute and with the legislative purpose.

II.

THE TRIAL JUDGE TOLERATES A FORFEITURE

The trial judge, in my view, correctly declined to partition the property or to award an undivided half share to Gallimore. She went further, however, and held that Galli-more no longer had any interest in the jointly held premises. I cannot agree with that disposition, for it effects a forfeiture of Galli-more’s interest during his own lifetime.

In Pannone v. McLaughlin, 37 Md.App. 895, 377 A.2d 597 (1977), a case in which a husband killed his wife and committed suicide shortly thereafter, the court enunciated

the principle that a murderer cannot enrich his estate by his act of wrongdoing, but neither can he be deprived of an interest in property which he possessed at the time he committed his wrongful act. An unconstitutional forfeiture would result in the latter instance.

Id. 377 A.2d at 600. The trial judge was aware of the Pannone decision, but distinguished it upon the ground that “Pannone turned upon the application of Maryland’s Constitution and Declaration of Rights prohibiting forfeiture of property based on a conviction.”6 Washington, supra, 122 Daily Wash.L.Rptr. at 1133. She pointed out that the District has no such constitutional provision, nor does it have a statute proscribing such forfeitures. Id.; cf. Johansen v. Pelton, 8 Cal.App.3d 625, 87 Cal.Rptr. 784, 790 (1970).

The lack of any such constitutional or statutory provision does not mean, however, that a forfeiture is a presumptively acceptable remedy in the District of Columbia. 'Maxim II makes it plain that, on the contrary, forfeitures are disfavored. This court has put it this way:

Equity abhors forfeitures. Berg v. Slaff, 125 A.2d 844, 846 (D.C.1956). Statutes or regulations which impose forfeitures ... are penal in nature and must be strictly construed. See generally 3 N. Singer, SUTHERLAND STATUTORY CONSTRUCTION § 59.02, at 7-8 (4th ed. 1986).

Beard, supra, 587 A.2d at 203.

Section 19-320(a) is broadly phrased, but I can find in it no provision clearly authorizing, or indeed authorizing at all, the forfeiture of an interest in property which the murderer owned prior to the homicide. The statute precludes a murderer from profiting from his own wrong, but it does not confiscate property which was previously his. Given the rule of strict construction articulated in Beard, I do not think that this aspect of the trial judge’s disposition can be sustained.

III.

THE RESTATEMENT GETS IT RIGHT

My colleagues have rejected the resolution of this case suggested by the Restatement of Restitution. I believe that this is a mistake.

Restatements of the law are, of course, published by the American Law Institute. The Institute is comprised of especially distinguished judges, attorneys and scholars.7 *1214Accordingly, “[t]he Restatement may be regarded both as the product of expert opinion and as the expression of the law by the legal profession.” Poretta, supra note 7, 137 A.2d at 373; see also 20 Am.JuR.2d Courts § 67, at 433 (1965 & Supp.1995). We have treated the Restatement of Contracts as authoritative “[i]n the absence of any current well-developed doctrine in our jurisdiction.” Ellis v. James V. Hurson Assocs., 565 A.2d 615, 619 (D.C.1989). Some courts have flatly stated that they will follow the Restatement of the Law “where we are not bound by the previous decisions of this court or by legislative enactment, feeling that by so doing uniformity of decision would be more nearly effected.” See, e.g., Smith v. Normart, 51 Ariz. 134, 138, 75 P.2d 38, 42 (1938). In the present case, it is undisputed that there is no binding precedent in this jurisdiction on the question which has been presented to us.

The basic rule propounded by the American Law Institute in this area of the law is based on Maxim I:

§ 188. WHERE Murderer’s Interest Is Enlarged By the Murder.
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.

Restatement (First) of Restitution, § 188 (1937). The Institute has also specifically addressed the application of this rule to a joint tenancy:

In such a case if one of [the joint tenants] murders the other, the murderer takes by survivorship the whole legal interest in the property, but he can be compelled to hold the entire interest upon a constructive trust for the estate of his co-tenant, except that he is entitled to one-half-[8] of the income for life. It is immaterial that each of them might have compelled a partition before the death of either.

Id., cmt. (b) (emphasis added). The Institute has taken this position because, “where it is doubtful whether or not [the murderer] would have had an interest if he had not committed the murder, the chances are resolved against him.” Id.

The Restatement approach is both sound and consistent with our statute. It places the murderer in a position equivalent to the one which he would have occupied if he had not committed the murder and if he had died first. During his lifetime, the murderer would have been entitled to his share of the income from the property, and that is what the Restatement rule permits him to receive. Upon his death, the entire property goes to the decedent’s heirs. This disposition avoids the forfeiture which would be effected by the trial judge’s order and which, in my opinion, precludes our affirmance of her decision. Moreover, contrary to my colleagues’ view, the Restatement approach does not “amount ... to a forfeiture,” for it leaves Gallimore precisely where he would have been if he had died first.

The majority prefers to “eschew the term ‘constructive trust’ in the present context.” Although this court continues to utilize this device in order to achieve the equitable resolution of problems similar to the one here presented, see, e.g., Gore v. Gore, 638 A.2d 672, 675-76 (D.C.1994), I can sympathize with my colleagues’ criticism of “anachronistic terminology.” See Op. at 1210 note 13. In any event, I am not concerned with labels, for

*1215What’s in a name? That which we call a rose By any other name will smell as sweet.

William ShakespeaRE, Romeo and Juliet, Act II, sc. 2. The important point, to me, is the result — Gallimore should receive an appropriate share of the income from the property during his lifetime, and thereafter the entire property should pass to Ms. Washington’s heirs.

IV.

OTHER ISSUES

I find it necessary to make three additional comments on the majority’s approach to this case.

A The Statute Preempts the Common Law.

First, I agree with my colleagues that, in this case, § 19-320(a) and the common law lead to the same result, even though they and I differ as to what that result should be. I also agree that the common law is “a system of law not formalized by legislative action, not solidified but capable of growth at the hands of judges.” Nelson v. Nelson, 548 A.2d 109, 112 & n. 3 (D.C.1988) (quoting Linkins v. Protestant Episcopal Cathedral Found., 87 U.S.App.D.C. 351, 354-55, 187 F.2d 357, 360-61 (1950)). But this court stated in Nelson, immediately before the language quoted by the majority, that “[i]n the absence of statutory enactment, this court will look to the common law.” 548 A.2d at 112 (emphasis added).

The italicized language is all-important. Where, as here, the legislature has spoken, it is not the business of judges to develop new common law doctrines independent of the statute. Surely my colleagues do not suggest that where a statutory enactment authorizes a particular result only in situations A, B, and C, -a court which is not satisfied with this arrangement can order the same result in situation D by “creative expansion” of the common law or by some similar doctrine. If that is what the majority means, then today may become known as liberation day for judicial activism. We should recognize, as did the Supreme Court of West Virginia in construing its analogue to § 19-320(a), that by detailing the interests which the murderer is precluded from taking, “the [Ijegislature has in effect preempted the matter.” State ex rel. Miller v. Sencindiver, 166 W.Va. 355, 275 S.E.2d 10, 14 (1981); cf. Cheatle v. Cheatle, 662 A.2d 1362, 1365, 1367 n. 5 (D.C.1995) (raising but not deciding the question whether § 19-320(a) preempts the common law).9

B. The Murderer’s Heirs — The Secondary Victims of His Crime.

Second, my colleagues complain that in case of a disposition different from the one which they have selected, “the successors of the decedent are favored over the successors of the murderer.” In my opinion, this solicitude for Gallimore’s heirs is unwarranted. Whenever a wrongdoer commits a crime and is punished for it, whether by incarceration, a fine, or an order of restitution, his or her next of kin are bound to suffer. They become the secondary victims of the crime. One incentive for a father not to murder anyone is that, if he does so and is apprehended, he will be punished and will not be able to care for his family. People who obey the law and work hard often do so for the benefit of their children. It is neither contrary to our statute nor inequitable to provide a law-abiding decedent’s heirs with benefits not available to the heirs of a convicted murderer.

The situation facing Gallimore’s heirs under the Restatement approach is unfortunate. To be the next of kin of a killer is not a happy thing. Legally, however, the murderer’s heirs stand in his shoes. If he has no right to something, then they have no right to inherit that something from him.

C. Gallimore’s Share.

Finally, I think it necessary to advert to an issue not explicitly addressed by the majority but critical to its own resolution of the case. My colleagues hold that Ms. Washington’s *1216share of the tenancy in common which they have created passes to her estate. Presumably, Gallimore’s share is what is left over. Gallimore apparently assumes that his share is a one-half share, and the trial judge treated the question as being whether Gallimore was entitled to “an undivided half-interest or moiety.” Washington, supra, 122 Daily Wash.L.Rptr. at 1132. Gallimore’s assumption, however, is not necessarily correct.

Because the purported tenancy in common in this case developed from a purported tenancy by the entireties and an actual joint tenancy, there is a presumption that each tenant is entitled to an equal share of the proceeds. Sebold v. Sebold, 143 U.S.App. D.C. 406, 414, 444 F.2d 864, 872 (1971). “This presumption is subject to rebuttal, however, and does not prevent proof from being introduced that the respective holdings and interests of the parties are unequal.” Id. (quoting Jezo v. Jezo, 23 Wis.2d 399, 127 N.W.2d 246, 250 (Wis.1964) (Jezo I), modified Jezo v. Jezo, 23 Wis.2d 399, 129 N.W.2d 195, 196-97 (Wis.1964) (per curiam) (Jezo II)); see also Duston v. Duston, 31 Colo. App. 147, 498 P.2d 1174, 1175 (1972); Wallace v. Riley, 23 Cal.App.2d 669, 74 P.2d 800, 806 (1937); 48A C.J.S. Joint Tenancy § 22, at 357 (1981 & Supp.1994).

It appears to be undisputed that when Gallimore and Ms. Washington began their relationship, he moved into her home. Ms. Washington’s heirs claim that he contributed nothing at all to the payment of the mortgage. Gallimore asserts in his brief that he contributed until 1983; in his affidavit, he claims to have done so until 1984. It appears that after 1984, Ms. Washington’s daughter lived in the house and paid rent of $300 per month to her mother, an amount in excess of the $232 monthly mortgage payment. In any event, Gallimore does not claim to have contributed to the mortgage for more than a decade.

“The determination as to whether the presumption [that joint tenants own equal shares] was overcome by the evidence is a question of fact for the trial court.” Duston, supra, 498 P.2d at 1175. Because the trial' judge held that Gallimore receives nothing, she found it unnecessary to resolve the factual issues regarding Gallimore’s contribution. Although not necessarily controlling, evidence of unequal contributions is a factor to be considered. Sebold, supra, 143 U.S.App. D.C. at 414, 444 F.2d at 872; Jezo II, supra, 129 N.W.2d at 197. Accordingly, in my opinion, the majority’s disposition requires a remand to resolve this issue.10

V.

CONCLUSION

For the foregoing reasons, I respectfully dissent.

. "Nullus commodum capere potest de injuria sua propria." See John W. Wade, Acquisition of Property by Willfully Killing Another, 49 Harv. L.Rev. 715, 715 (1936).

. The "wrong” which Gallimore inflicted upon Ms. Washington was not just any little old wrong, but the ultimate one — deliberate, premeditated murder. According to a newspaper article attached to the verified complaint, the sentencing judge called the slaying of Ms. Washington "one of the most brutal he has handled on the bench.” Ms. Washington was found dead of numerous stab wounds in a Silver Spring motel. The prosecutor was also prepared to present evidence of prior domestic violence on Gallimore’s part.

. Gallimore has argued in his brief that he is entitled to one-half of the value of the property. As I read the majority opinion, it does not specify whether he is entitled to a half-share or something different. I discuss this issue in Part IV C, infra.

4. In his article in the Harvard Law Review, John Wade also aptly identifies what I view as the weakness in the majority's argument. The murderer was a joint tenant who, according to Wade,

has now killed the person with whom he held the property jointly; can he say that this is an act which separates the property, so that he can now hold half of it without any restriction? No. By doing so he is attempting to take advantage of his own wrong. The decedent had a chance that he might survive the slayer and thus take all of the property. A separation of the property deprives him of that chance and gives to the slayer the certainty that he will keep half.

49 Harv.L.Rev. at 733.

.If Gallimore had taken legal action during his lifetime to acquire a partition, he would have had to expend time, effort, and (presumably) legal fees. He claims that he was gainfully employed during the period 1977-1983 and that he contributed to the mortgage at that time. Now, as a result of his conviction, he is incarcerated, Ms. Washington’s heirs had to sue him, and the case is being defended for him by a law school legal clinic which provides representation to the poor.

. The judge cited Md. Const.Decl. of Rights, Art. 27.

. I refer to the following observations about the Institute by the Supreme Court of Maine:

We think it is pertinent at this point to record something of the establishment, organization and object of the American Law Institute. The Institute was organized on February 23, 1923. The organizational meeting was attended by the Chief Justice of the United States, and other representatives of the Supreme Court, representatives of the United States Cir*1214cuit Courts of Appeals, the highest courts of a majority of the States, the Association of American Law Schools, and the American and State Bar Associations. The Institute was composed of Justices of the Supreme Court of the United States, senior judges of the United States Circuit Courts of Appeals, the chief justices of the highest courts of the several States, and president and members of the Executive Committee of the American Bar Association, the presidents of certain learned legal societies, and the deans of member schools of the Association of American Law Schools. Its object as expressed in its charter was to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to carry on scholarly and scientific legal work.

Poretta v. Superior Dowel Co., 153 Me. 308, 137 A.2d 361, 373 (1957).

8. Although the Restatement provides for one half, the presumption that Gallimore’s share in this case is a one-half share is a rebuttable one. See Part IV C, infra.

. The common law retains its vitality, of course, with respect to issues which the legislature did not address.

. If the Restatement approach were followed, the trial court would be required on remand to determine the value of Gallimore’s life estate in the income from the property.