[14 NJSuper Page 480] The plaintiff herein seeks a construction of the will of Edith Kollmer Hurff, to the end that this court may determine in whom certain realty and personalty vested upon her death. The plaintiff seeks as well a judgment for $2,500 allegedly loaned to the defendant.
The defendant, in addition to contending that title to the realty and personalty particularly described in the complaint vested in him at his wife's death, and denying that he owed his wife any sum in excess of $500, contends that he is entitled to a lien to the extent of $1,771 against various shares of stock jointly held by them, this being the amount of money advanced by him for their purchase, and that he has title to certain shares of building and loan stock, since he paid the entire purchase price therefor.
The facts in connection herewith are as follows: On July 31, 1950, the deceased and the defendant were husband and wife. The deceased met her death at the hands of the defendant, who later pleaded non vult to an indictment for second degree murder. At the time of her death, Edith Kollmer Hurff left a last will and testament in which the sole residuary beneficiary was designated "Damon Runyon Cancer Fund." It is admitted that the deceased intended to designate the "Damon Runyon Memorial Fund for Cancer Research, Inc.," as such beneficiary. During her lifetime, the deceased and defendant held title to a parcel of realty as tenants by the entirety, and to a number of shares of corporate stock, in the following manner: (1) 10 shares of Bank of America, as follows: "Frank E. Hurff and Edith Kollmer Hurff, Jt. Ten."; (2) various other stocks, as follows: "Frank E. Hurff and Edith Kollmer Hurff as joint tenants with the right of survivorship and not as tenants in common." There is no proof as to the manner in which 20 shares of Collingswood Building and Loan Association were held and I cannot pass on the title thereto.
The question submitted as to the realty and the corporate stock is whether the title should vest in the defendant, since the wife's death was caused by his felonious act.
The defendant does not dispute that the shares of stock above referred to, excepting the building and loan stock, were held by him and his wife as joint tenants.
There is no legal impediment to the creation of a joint tenancy in personalty. Goc v. Goc. 134 N.J. Eq. 61
(E. & A. 1943). In any event, the form in which title to these shares were taken raises the presumption of an intention to take as joint tenants, which was not rebutted by any evidence. Stiles v. Newschwander , 140 N.J. Eq. 591 (E. & A. 1947). Since such intention to so take has been here affirmatively found, the claim of defendant to a lien must fail.
On the major question of the effect of the manner of death of the plaintiff's testator there are three cases in this State where this general subject has been considered, i.e., Sorbello v. Mangino , 108 N.J. Eq. 292 (Ch. 1931), Sherman v. Weber , 113 N.J. Eq. 451 (Ch. 1933), and Whitney v. Lott , 134 N.J. Eq. 586 (Ch. 1944).
In Sorbello v. Mangino, supra , and Sherman v. Weber, supra , Vice-Chancellor Fielder set forth the three divergent schools of thought in the law applicable to states of facts comparable to those sub judice. In all of the three foregoing cited cases the courts have held that the legal title will pass as if the death had not been caused by the person benefitting thereby, but that equity will decree that the criminal or those claiming under him will hold the property as constructive trustees.
The defendant contends that such a conclusion violates constitutional provisions, i.e., United States Constitution , 14 th Amendment, sec. 1; United States Constitution, Art. I, sec. X, par. 1, clause 1; New Jersey Constitution, Art. I , and R.S. 2:178-2. The latter provides as follows:
"No conviction or judgment for any offense against this State, shall make or work corruption of blood, disinherison of heirs, loss ...