On appeal from the Chancery Division of the Superior Court; certified by the Supreme Court on its own motion while pending in the Appellate Division of the Superior Court.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Vanderbilt, C.J.
On July 31, 1950 the defendant killed his wife and thereafter pleaded non vult to an indictment for second degree murder for which he is now confined in prison. During her lifetime the decedent and the defendant owned a residence in Collingswood, New Jersey, as tenants by the entirety, and certain shares of corporate stock as joint tenants. In her will the decedent named as her sole beneficiary the Damon Runyon Memorial Fund for Cancer Research, Inc.
The plaintiff Alberta A. Neiman as executrix of the decedent sought, first, the direction of the court in regard to the rights of the Cancer Fund and of the defendant respectively in the corporate stock owned jointly by the decedent and the defendant during her lifetime, and, secondly, judgment against the defendant on three loans aggregating $2,500. The Cancer Fund sought an adjudication that the real property held by the entirety and the jointly owned corporate stock be held in trust for it by the defendant and that he be ordered to convey them to it.
The defendant contended that the title to both the realty and the corporate stock vested in him on his wife's death. He denied that he owed his wife any sum in excess of $500, and he asserted that in any event he was entitled to a lien against the corporate stock for $1,771 allegedly representing the amount advanced by him for its purchase.
The trial court ruled that the decedent having met her death at the hands of the defendant, the title to the realty was vested in him as trustee for himself individually and for the Cancer Fund; that its value at the time of her death was $14,000; that the value of the Cancer Fund's interest was
$11,597.98 (this sum representing the difference between $14,000 and "the commuted value as of the date of decedent's death of the net income of one-half of said property for the number of years of defendant's expectancy of life as determined according to the mortality tables used by this Court"); that $11,597.98 was imposed as a lien on the real property in favor of the Cancer Fund; that the defendant pay the Cancer Fund $11,597.98 within 45 days of service of the judgment or that the Cancer Fund have execution issue. The trial court further ruled that the title to the shares of stock likewise be held by the defendant as trustee for himself and the Cancer Fund; that the value of the stock at the time of the wife's death was $2,495.63; that the value of the interest of the Cancer Fund as the sole beneficiary under the decedent's will was $2,062.61 (representing the difference between $2,495.63 and "the commuted value as of the date of the decedent's death of the net income of one-half of the said shares of stock for the number of years of defendant's expectancy of life as determined according to the mortality tables used by this Court"); that $2,062.61 was imposed as a lien in favor of the Cancer Fund and that the defendant pay said sum within 45 days after service of the judgment or that execution issue. Finally, the trial court further held that the executrix had not proved her case as to the loans except for $500 which the defendant admitted.
From this judgment the defendant appealed and the executrix cross-appealed to the Appellate Division of the Superior Court, and we have certified the case on our own motion.
The question here presented is whether or not a murderer can acquire by right of survivorship and keep property the title to which he had held jointly with his victim. This question has never been before a court of last resort in this State, although it has been considered at length in the former Court of Chancery, 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).
Some states have held that the legal title passes to the murderer despite his crime and that he may retain it, see Wenker v. Landon, 161 Or. 265, 88 P. 2 d 971 (Sup. Ct. 1939); Heddingfield v. Estill and Newman, 118 Tenn. 39, 100 S.W. 108, 9 L.R.A.N.S. 640 (Sup. Ct. 1907), each involving real property held by the entirety. Some other states have held that the legal title will not pass to the murderer at all, see Van Alstyne v. Tuffy, 103 Misc. 455, 169 N.Y.S. 173 (Sup. Ct. 1918), likewise involving real property held by the entirety. A third group of states has held that legal title passes to the murderer but that equity will treat him as a constructive trustee because of his unconscionable acquisition of the property and compel him to convey it to those to whom it has been devised or bequeathed by the will of his victim, or in the absence of a will to the heirs or next of kin of the decedent exclusive of the murderer. See, in addition to the three New Jersey cases hereinbefore mentioned, In re King's Estate, 261 Wis. 266, 52 N.W. 2 d 885 (Sup. Ct. 1952): Colton v. Wade, 80 A. 2 d 923 (Del. Ch. 1951); Grose v. Holland, 357 Mo. 874, 211 S.W. 2 d 464 (Sup. Ct. 1948); Barnett v. Couey, 224 Mo. App. 913, 27 S.W. 2 d 757 (Ct. App. 1930); Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 51 A.L.R. 1100 (Sup. Ct. 1927); all involving property held by the entirety.
To permit the murderer to retain title to the property acquired by his crime as permitted in some states is abhorrent to even the most rudimentary sense of justice. It violates the policy of the common law that no one shall be allowed to profit by his own wrong " nullus commondum capere protest de injuria sua propria "; see Merrity v. Prudential Insurance Co., 110 N.J.L. 414 (E. & A. 1933), and Swavely v. Prudential Insurance Co., 10 N.J. Misc. 1 (Sup. Ct. 1931), and the cases there collected. This doctrine, as Vice-Chancellor Jayne pointed out in Whitney v. Lott, supra, 134 N.J. Eq. 586, at 589, "so ...