GALLIMORE v. WASHINGTON

RUIZ, Associate Judge:

Appellant Baysic Gallimore was convicted of murdering appellees' mother, Annie Mae Washington. At the time of her death, Washington and Gallimore were joint owners of an improved lot in the District of Columbia. After Gallimore's conviction, appellees brought this action to quiet title, seeking a judgment declaring that they exclusively own the lot as tenants in common, free of claims by Gallimore. On cross-motions for summary judgment, the trial court granted appellees the relief they sought, holding that because Gallimore was convicted of murdering his joint tenant, D.C. Code § 19-320(a) (1990) operated to divest him of all his interest in the property he held jointly with decedent as if he had predeceased her. Washington v. Gallimore, 122 Daily Wash. L.Rptr. 1125 (D.C.Super.Ct. May 18, 1994).

We reverse. We need not decide whether § 19-320 applies to these facts because we hold that the common law, at least with respect to the present problem, is not displaced by the statute and that the result under the statute and the common law would be the same. Neither permits a joint tenant with right of survivorship to enrich himself by murdering his co-tenant. Neither, however, would work a forfeiture of a murderer's preexisting property interest as the result of his conviction. Therefore, we hold that when Gallimore murdered Washington, the joint tenancy with right of survivorship was converted by operation of law to a tenancy in common — the interest that most closely resembles the interest that Gallimore owned while Washington was alive — with Washington's corresponding share as tenant in common passing to her estate.

The relevant facts are undisputed. Washington was still married (separated but never divorced) to someone else when she participated in a marriage ceremony with Gallimore and they began to live together as husband and wife. About a year later, Washington and Gallimore purchased an improved lot on Seaton Street in the District of Columbia as tenants by the entirety. The parties agree, however, that because Washington and Gallimore were not married they could not take the property as tenants by the entirety and that the estate they received was a joint tenancy with right of survivorship. Coleman v. Jackson, 109 U.S.App.D.C. 242, 286 F.2d 98 (1960).

About nine years after Gallimore and Washington purchased the Seaton Street property and two years after they had stopped living together, Washington died of wounds she received during a brutal assault. A circuit court in Maryland convicted Gallimore of the murder and sentenced him to life imprisonment. After his conviction became final, appellees brought this action for declaratory judgment, seeking to quiet title to the Seaton Street property in themselves. The trial court granted appellees the relief they sought and Gallimore filed this timely appeal.

Appellees rest their claim that Gallimore forfeited to them his interest in the jointly owned Seaton Street property upon D.C. Code § 19-320(a), supra note 1. Gallimore contends that § 19-320(a) by its terms does not encompass property interests acquired by virtue of the right of survivorship associated with joint tenancies. If we were to hold that § 19-320 does apply, then we would be required to apply its provisions to the instant case. If, on the other hand, we were to agree that § 19-320 does not apply, we would have to determine whether § 19-320 nevertheless displaced the common law with respect to the disposition of property received by a murderer by virtue of a right of survivorship. If § 19-320 does not affect property interests acquired by virtue of rights of survivorship and displaces the common law, then Gallimore would be entitled to the whole property. If § 19-320 does not displace the common law, then we would apply the common law.

Given the foregoing scheme, there are four questions which we could conceivably have to answer: (1) Does D.C. Code § 19-320 apply to rights of survivorship? (2) If § 19-320 does not apply to rights of survivorship, does § 19-320 displace the common law with respect to property acquired by a murderer from his victim by virtue of a right of survivorship? (3) What result obtains under § 19-320? (4) What result obtains under the common law? We need to answer only the last three questions. We hold that, even assuming the statute did not apply to rights of survivorship, the statute would not displace common law with respect to property acquired by a murderer from his victim by virtue of a right of survivorship. Because we hold that the statute and the common law give the same result in the present case — a tenancy in common — we need not answer the first, difficult question of whether § 19-320 applies to rights of survivorship.

Before addressing the legal arguments, it is helpful to describe the property interest known as joint tenancy with right of survivorship. A joint tenant with right of survivorship has essentially two interests: (i) a present right to possession of the property in its entirety and an undivided portion of its profits, and the right to alienate that present right during her lifetime, and (ii) a future right to the whole property contingent on her outliving her joint tenant and the joint tenancy not being severed during their lifetimes. The concept is that upon the death of one of two joint tenants, there is no transfer of the decedent's future interest to the survivor; rather, the future interest of the deceased ceases to exist, the threat of severance by the other joint tenant is eliminated, and the present interest of the surviving joint tenant in the whole property becomes exclusive. 4A POWELL ROHAN, supra note 2, ¶ 617, at 51-10 to -11.

Appellees focus their argument on the second unnumbered paragraph of § 19-320(a), contending that it mandates that a killer be considered to have predeceased his victim in respect to property received in any way upon the death of the decedent, including property jointly held by the killer and his victim with right of survivorship. Because Gallimore must be considered to have predeceased Washington, appellees reason, his share of the joint estate passed first to Washington and then through her to them.

We question whether the statute, read as a whole, encompasses rights of survivorship. The first unnumbered paragraph of subsection (a) does not list rights of survivorship as among the means of succession covered by the subsection, nor does it contain general language that would permit us to read in such rights. Rather than state that the section applies to all property interests, the statute specifies certain future estates, namely reversions, remainders and executory devises. The statute also specifies certain means of receiving property, by inheritance, distribution or bequest, all of which imply a transfer from one person to another, and which do not apply to the right of survivorship.

Construing the scope to be so limited is consistent with the origin of § 19-320, considered in its context. Section 19-320 was enacted in 1965 as part of a codification of existing positive law relating to decedent's estates and fiduciary duties. Pub.L. No. 89-183, § 1 (Sept. 14, 1965). That act was not intended to work any substantive change in existing law. H.R. REP. No. 235, 89th Cong., 1st Sess. 1 (1965); U.S. Code Cong. Admin.News 1965, p. 752, S.REP. No. 612, 89th Cong., 1st Sess. 3 (1965); U.S. Code Cong. Admin.News 1965, p. 752, 111 CONG.REC. 21, -751 (1965) (statement of Rep. Willis). Section 19-320 was itself derived from section 961 of the 1901 Code, Act of March 3, 1901, ch. 854, 31 Stat. 1344. H.R. REP. No. 235, at 30 (noting that changes were made in phraseology); S.REP. No. 612, at 32 (same).

The 1901 Code was the result of decades of effort on the part of members of the bench and bar and citizenry of the District of Columbia to replace the patchwork of English, Maryland and congressional statutes, and ordinances, acts and regulations adopted by the various forms of local government that Congress had prescribed for the District up to that time, which then formed the positive law of the District. See H.R. REP. No. 1017, 56th Cong., 1st Sess. 4 (1900); 34 CONG.REC. 2501 (1901) (statement of Sen. Pritchard); Walter S. Cox, Efforts to Obtain a Code of Laws for the District of Columbia, in 3 RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 115 (1900); Codification of District Laws, 26 WASH. L.RPTR. 786 (Dec. 15, 1898). A draft of the proposed code was first completed by Justice Walter S. Cox, of the Supreme Court of the District of Columbia, in the fall of 1898. WALTER S. COX, CODE OF LAW FOR THE DISTRICT OF COLUMBIA (1898); see also Code for the District of Columbia, 26 WASH.L.RPTR. 593 (Sept. 22, 1898). The draft was then reviewed, amended and approved by committees of the bar association, the board of trade, and the Supreme Court of the District of Columbia before being presented to Congress for its consideration. H.R. REP. No. 1017, at 5.

Unlike the partial codification in 1965, the 1901 Code was more than merely the enactment of a compilation of existing positive law. Both as proposed and as ultimately enacted, it changed in substantial and material ways both the judicial machinery and the legal rights of the citizens of the District. 34 CONG.REC. 3585 (1901) (statement of Rep. Babcock); Editorial, 26 WASH.L.RPTR. 801 (Dec. 22, 1898). The legislation did not, however, undertake to codify the common law of the District. H.R. REP. No. 1017, at 4. Instead, it expressly provided that the "common law . . . shall remain in force except in so far as [it is] inconsistent with, or [is] replaced by, some provision of this code." Act of Mar. 3, 1901, ch. 854, § 1, 31 Stat. 1189.

The substance of what became section 961 was not contained in Justice Cox's draft. See Cox, supra, at 374. It was added during the examination by local attorneys, judges, and members of the business community that occurred before its first submission to Congress in early 1899. See S. 5530, 55th Cong., 3d Sess. § 989, at 215 (Feb. 18, 1899). As of that time, only eight reported decisions — none from this jurisdiction — addressed the question whether a slayer was entitled to acquire the property of his victim as a result of the victim's death. Shellenberger v. Ransom, 41 Neb. 631, 59 N.W. 935 (1894) rev'g on reh'g 31 Neb. 61, 47 N.W. 700 (1891); Ellerson v. Westcott, 148 N.Y. 149, 42 N.E. 540 (1896); Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889); Owens v. Owens, 100 N.C. 240, 6 S.E. 794 (1888); Deem v. Millikin, 6 Ohio C.C. 357 (1892), aff'd mem., 53 Ohio St. 668, 44 N.E. 1134 (1895); Carpenter's Estate, 170 Pa. 203, 32 A. 637 (1895); Lundy v. Lundy, 24 S.C.R. 650 (Can. 1895); see also John W. Wade, Acquisition of Property by Wilfully Killing Another, 49 HARV.L.REV. 715, 717 nn. 9, 10 12, 719 n. 17, 729 n. 54, 733 n. 64 (1936); Owens, supra, 6 S.E. at 795 (noting that the court was unable to locate a single precedent).

In four of the six jurisdictions represented by the early cases, the court held that the slayer could succeed to the property. Wade, supra, at 717 nn. 9, 10. The reason chiefly given in the cases holding that the slayer could take was that the legislature had determined how property should pass and the court could not overrule the statute. See Shellenberger, supra, 59 N.W. at 939 ("Neither the limitations of the civil law nor the prompting of humanity can be read into a statute from which, without question, they are absent, no matter how desirable the result to be attained may be."); Owens, supra, 6 S.E. at 794 ("[W]hile the law gives the dower, and makes it paramount to the claims of creditors even, there is no provision for its forfeiture for crime, however heinous it may be, and even when the husband is its victim."); Deem, supra, 6 Ohio C.C. at 361 ("The natural inference is that when the legislature 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."); Carpenter's Estate, supra, 32 A. at 637 ("The intestate law in the plainest words designates the persons who shall succeed to the estates of deceased intestates. It is impossible for the courts to designate any different persons to take such estates without violating the law."); Wade, supra, 49 HARV.L.REV. at 717. But see Riggs, supra, 22 N.E. at 189-91 (rejecting the reasoning of Owens in favor of principle "that matters embraced in the general words of statutes nevertheless [might not be] within the statutes, because it could not have been the intention of the law-makers that they should be included"); see also Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 191 (1927) ("It is apparent . . . that the appeal [in Owens] was treated as presenting nothing more than a question of law. . . . It does not appear what the decision would have been if the equitable jurisdiction of the court had been invoked. . . .").

In light of the decisions in other states and the provisions of the proposed code, the drafters of the 1901 Code had just reason to be concerned about whether the courts would intervene to prevent the property of a decedent from passing to his slayer pursuant to statutory provision. The 1901 Code contained provisions relating not only to taking by descent and testament, but also concerning reversions and future interests. Act of Mar. 3, 1901, ch. 854, §§ 940-60, 1018-30, 1623-33, 31 Stat. 1342-44, 1351-52, 1433-34. Except for the inclusion of a provision such as section 961, it would have been arguable, in the then-prevailing legal climate, whether a slayer could be barred from coming into possession of his victim's property by virtue of a future estate or by will or descent.

The 1901 Code did not, however, address rights of survivorship. Joint tenancy is mentioned only twice: Section 93 of the Code permitted partition by a court of property held by joint tenants. 31 Stat. 1203. This was the same as was permitted prior to the adoption of the Code by virtue of the statutes of 31 Henry VIII ch. 1 and 32 Henry VIII ch. 32. See COMPILED STATUTES OF THE DISTRICT OF COLUMBIA ch. 51, secs. 12-15, at 424 (William S. Abert Benjamin G. Lovejoy eds., 1894). Section 1031 of the Code also addressed joint tenancies by reversing the common-law presumption that a grant to more than one person created a joint tenancy instead of tenancy in common. 31 Stat. 1352. Given the absence of provisions in the 1901 Code addressing rights of survivorship and the state of the common law when Congress adopted the Code, there was at that time no apparent need to address in the Code a slayer's rights in property owned in joint tenancy with his victim.

The foregoing is hardly conclusive on the question, however. It must be observed that section 961 also did not mention the rights of dower and estate by the curtesy, which were expressly provided for in the 1901 Code. §§ 1158-59, 1161-76, 31 Stat. 1375-77. If Owens, supra, which dealt with dower rights, were among the cases forming the impetus for adoption of section 961, it would seem curious that the drafters of section 961 omitted dower and estate by the curtesy from its coverage. Moreover, it is difficult to distinguish a remainder following a cotenant's life estate in her moiety, made contingent on the remainderman surviving that cotenant and neither tenant alienating her share or partitioning the property during the joint lifetimes of the cotenants, which would be covered by § 19-320(a), from the right of survivorship held by a joint tenant. Cf. 4A POWELL ROHAN, supra note 2, ¶ 616[2], at 51-5 to -6 (noting that some courts have attempted to approximate a joint tenancy by substituting a tenancy in common with a contingent remainder in the whole in favor of the survivor). There would seem to be no rational basis on which to distinguish between the two simply because the same interest was created in a different way.

We think, however, that there could be other sound reasons for not including the right of survivorship attendant to a joint tenancy within the sweep of section 961. The joint tenancy with right of survivorship is a convenient means to ensure that the legal title held by trustees or partners does not pass out of the hands of those to whom the property has been entrusted for management or other purposes. For example, the 1901 Code expressly recognized that trustees with management or other responsibilities could hold legal title to property for the benefit of others. § 1617, 31 Stat. 1432. Under section 952 of the Code, however, a trustee's legal title descended as though it were the equitable title. 31 Stat. 1343. The 1901 Code also recognized the use of the deed of trust to secure loans with real property and provided for right of survivorship among joint trustees on a deed of trust and the removal of trustees and appointment of new ones. §§ 533, 534, 538, 31 Stat. 1272-74. Similarly, we have recognized that "[f]or the common law partnership, both tenancy in common and joint tenancy possessed attributes that were satisfactory for holding title to partnership realty." District of Columbia v. Riggs Nat'l Bank, 335 A.2d 238, 242 (D.C. 1975). Until the District's adoption of the Uniform Partnership Act in 1962, partnerships in the District were governed by the common law. Id. at 241.

In circumstances such as trust and partnership, where the legal and beneficial ownership may be divided, the rigid rule established by section 961 would not necessarily be the most convenient, expedient or just method of disposing of the interest held by a joint tenant murdered by his cotenant. By the same token, however, it is clear that a similarly rigid rule forbidding the courts from adjusting the passing of a murdered cotenant's interest is not appropriate and could not have been intended by the legislature. Thus, we hold that, assuming Congress did not cover rights of survivorship under section 961, Congress also did not intend to "replace" the common law with respect to the treatment of rights of survivorship.

If the result under the statute, assuming it applies, and what we hold to be the common law would be the same on the facts of this case, then we need not decide whether § 19-320(a) has application to property interests other than those listed in the first unnumbered paragraph, such as rights of survivorship. See Napoleon v. Heard, 455 A.2d 901, 903 (D.C. 1983) (relying on both § 19-320(a) and common law to deny patricide benefits from father's life insurance). Therefore, we discuss the application of both the statute and the common law to the situation presented by this case.

The second unnumbered paragraph of § 19-320(a), addresses the disposition of property that would be received by the killer "from or after" the death of the decedent, not property already owned by the killer. Thus, the statute does not even arguably address the disposition of Gallimore's interest in the property he jointly owned with Washington while she was alive; rather, the paragraph concerns only those of Washington's interests that might be received by Gallimore after, or as a result of, Washington's death.

When Gallimore murdered Washington, he destroyed her future interest in the property; it would be impossible for Gallimore to take for himself Washington's future right which was contingent on his own death. Consequently, by its terms the second paragraph of the subsection does not apply to Washington's future right because it did not transfer at her death. It is only Washington's present right that passes, according to the terms of the paragraph, as though Gallimore had predeceased Washington. Therefore, under the statute, Washington's heirs would take her present alienable right to share in the possession and profits of the property, but they would not get her extinguished contingent future right to the remainder of the property. In other words, under the statute they would get a tenancy in common with Gallimore. See 4A POWELL ROHAN, supra note 2, ¶¶ 603[1], 604[1] (describing incidents of tenancy in common).

Gallimore, as joint tenant, had the same package of present and future rights as Washington. With Washington's death, however, the future interest was determined and Gallimore's own future interest also ceased to exist. Therefore, even if application of § 19-320(a) were to prevent Gallimore from acquiring from Washington her present interest in the Seaton Street property (because that is the only interest that was capable of being transferred at the time of her death), the statute would not affect his own present estate at all because it did not change hands. In other words, under the statute Gallimore's joint tenancy interest would be converted to a tenancy in common with Washington's heirs.

Appellees' reliance on Napoleon, supra, is misplaced. In Napoleon, we had before us an interpleader action to determine who should receive the proceeds of a life insurance policy the deceased had purchased. By its terms, the policy was payable to the decedent's son, or, if he could not take the proceeds, to the decedent's estate. The decedent's son had been convicted of murdering his father and stepmother.

In holding that the son could not collect the insurance proceeds, we rested our decision on both the statute and the common law. Although we stated in Napoleon that the phrasing used in the second paragraph of subsection (a) indicated that the subsection is "to be interpreted broadly," 455 A.2d at 902, we did not rest our decision entirely on the statute. Instead, we noted that the section did not repeal the common law and held that the common law barred one guilty of felonious homicide from receiving the proceeds of insurance on his victim. Id. at 903. Indeed, we discussed with approval a decision of the Superior Court adopting the same rule even where the putative beneficiary had been acquitted of the crime, thus removing him from the terms of the statute. Id.

We now turn from the statutory provision to the common law, which "remain[s] in force except insofar as [it is] inconsistent with, or [is] replaced by, some provision of the 1901 Code." D.C. Code § 49-301 (1990). Thus, we now seek to determine what result would best advance the policy of the common law. Unlike our task of statutory interpretation, in which we must adhere to the words of the statute, the common law is not frozen in time, but instead is " 'a system of law not formalized by legislative action, not solidified but capable of growth and development 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)).

The common law policy that we discern is the same as the one many other courts have stated — to prevent a murderer from profiting from his wrong. See, e.g., Colton v. Wade, 80 A.2d 923, 925 (Del.Ct.Ch. 1951); Price v. Hitaffer, 164 Md. 505, 165 A. 470, 472 (1933); Bierbrauer v. Moran, 244 A.D. 87, 279 N YS. 176, 179 (1935); Bryant, supra, 137 S.E. at 191; Hicks v. Boshears, 846 S.W.2d 812, 814 (Tenn. 1993); Preston v. Chabot, 138 Vt. 170, 412 A.2d 930, 932 (1980); State ex rel. Miller v. Sencindiver, 166 W. Va. 355, 275 S.E.2d 10, 12 (1981). That policy is not inconsistent with § 19-320(a), nor was the common law policy changed by the statute. If anything, prevention of profit from murder is the general policy underlying the statute.

We do not, however, discern any common law policy to punish the murderer or compensate the decedent's heirs or next-of-kin by means of forfeiture of the murderer's property interest, either to the state or to private persons. Punitive and compensatory measures are more properly sought through criminal proceedings and a civil action for damages, including punitive damages, if appropriate. Those forms of proceeding provide the proper means for fixing the measure of punishment and compensation. The interest a murderer may have held jointly with his victim does not logically measure the quantum of damages, whether compensatory or punitive, stemming from his crime.

The cases and commentaries suggest three approaches to implementing the policy of denying the murderer any profit from his wrong. Section 188 of the Restatement (First) of Restitution provides:

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).

Although the black-letter statement might be read to divest the murderer of only his cotenant's moiety, the comment describes a harsher application that would forfeit the murderer's own moiety:

[W]here there are two joint tenants and the principle of survivorship is applicable . . . if one of them 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 of the income for life.

RESTATEMENT (FIRST) OF RESTITUTION § 188 cmt. b (1937).

That result is dictated, in the view of the Restatement, by the principle that '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. cmt. a.

In our view, the Restatement approach amounts to a forfeiture of the murderer's interest and goes beyond the common law's policy to prevent the murderer from enriching himself as a result of the murder. A possessory interest in fee and a possessory interest for life make a difference to a joint tenant personally only if the interest is liquidated during his lifetime — a fee interest will be worth substantially more than a mere life estate. A joint tenant may alienate his interest in the joint tenancy in fee at any time, thus severing the joint tenancy and destroying the rights of survivorship. 4A POWELL ROHAN, supra note 2, ¶ 618[1][a], at 51-15 to -18; cf. Maynard v. Sutherland, 114 U.S.App.D.C. 169, 313 F.2d 560 (1962) (holding that joint tenant's execution of deed of trust in favor of cotenant did not effect severance). Thus, to use the Restatement's own words, since it is not "doubtful" that the murderer would have had the power to alienate during his lifetime a fee simple interest in his moiety in the absence of the murder, there is no chance to be resolved against the murderer. The Restatement comment cannot be justified on the policy ground we have adopted.

The second possibility suggested by the authorities is that the share of the murderer pass to the estate of the decedent unless the murderer obtains a severance of the estate or a partition. See Wade, supra, 49 HARV. L.REV. at 732 (proposing statutory solution). Wade's approach recognizes the ease with which a joint tenancy is severed and also tries to preserve the decedent's right of survivorship. Id. at 733. That approach has some superficial appeal, but upon close consideration it is not satisfactory.

The reason Wade's solution is unsatisfactory is that preservation of the light of survivorship can only affect the successors of the murderer and the murdered joint tenant. While the murderer is alive, he may enjoy either the profits of his interest in the property or else liquidate his interest at its full value. Wade's solution has no effect upon him. Should the murderer die without severing the joint tenancy, however, then the successors of the murdered joint tenant are favored over the successors of the murderer. We perceive no compelling reason for so favoring the successors of the murdered joint tenant. In fact, the most probable circumstance in which Wade's rule would have practical effect is in the instance of a murder-suicide. We do not think that the successors of the suicide are any less entitled to a share of the property jointly held than those of the victim.

The last alternative is that the joint tenancy be deemed severed and converted to a tenancy in common. That is the result that obtained in cases such as Johansen v. Pelton, 8 Cal.App.3d 625, 87 Cal.Rptr. 784, 788 (1970). We think that it is the result that best implements the policy principle that we find controlling in this case. By severing the joint tenancy and substituting a tenancy in common, Gallimore neither gains nor loses any present possessory interest in the Seaton Street property. It is, however, impossible to preserve precisely and divide equally all the incidents of the joint tenancy after one of the tenants has slain the other. As the court in Johansen noted,

The seeming anomaly that the part gained and the part lost cannot be reconciled is due to the fact that the inchoate rights — with survivorship — of the two joint tenants are in reality greater than the whole while the tenancy exists. Any solution must, therefore, at best be a compromise. . . . [We] conclude that a solution which recognizes the slayer's preslaying inchoate right to one-half the property is most equitable.

We join the Johansen court in finding that a severance of the murderer's and victim's joint tenancy is the solution that is most equitable, using the term in its nontechnical sense. Therefore, we hold that under the common law, the joint tenancy between Gallimore and Washington has been severed, converting it to a tenancy in common.

Because the result is the same under the statute and the common law, there is no need to determine which applies in this case. The decision is reversed and the case remanded for further proceedings consistent with this opinion.

So ordered.