On motion and cross-motion for summary judgment the issue submitted is whether an unborn grandchild, whose mother murdered his grandfather, is entitled to his mother's share of his grandfather's estate.
Defendant Barbara Ann Moe pleaded non vult to an indictment for murder of her father, Joseph Wolyniec, on December 27, 1965. She was sentenced to a 20 to 30-year term in the New Jersey State Prison at Clinton. She gave birth to defendant Martines Moe, Jr. on March 13, 1966, between two to three months after the murder. Joseph Wolyniec's other survivors are the two plaintiffs, his mother Victoria Wolyniec, also known as Ann Benson, and his sister Sally O'Hara. Joseph Wolyniec died intestate. Sally O'Hara is the administratrix of his estate comprising personal property.
The principle of law is clear that a murderer may not retain property which he takes title to because of his victim's death. Neiman v. Hurff, 11 N.J. 55 (1952) (tenancy by entirety and joint tenancy in securities); In re Estate of Kalfus, 81 N.J. Super. 435 (Ch. Div. 1963) (intestacy); Turner v. Prudential Insur. Co. of America, 60 N.J. Super. 175 (Ch. Div. 1960) (life insurance proceeds); Whitney v. Lott, 134 N.J. Eq. 586 (Ch. 1944) (mutual wills); Sherman v. Weber, 113 N.J. Eq. 451 (Ch. 1933) (tenancy by entirety); see State v. Sherry, 46 N.J. 172, 176
(1965), and Sorbello v. Mangino, 108 N.J. Eq. 292, 296, 297 (Ch. 1931). The murderer who is next of kin to an intestate victim is a constructive trustee for the other heirs or next of kin. In re Estate of Kalfus, supra; see Neiman v. Hurff, supra, at p. 60.
The court holds that Barbara Ann Moe is the constructive trustee of her father's intestate estate for the next of kin excluding herself. Plaintiffs and defendant Martines Moe, Jr. each seek to qualify as beneficiary or beneficiaries.
Plaintiffs' initial argument against a succession by Martines Moe, Jr. is that he was en ventre sa mere at his grandfather's death. N.J.S. 3A:4-10, which is derived from the act of January 24, 1799, Paterson's Laws 339, provides for an equal right of inheritance by a posthumous child; but the contingency of the posthumous grandchild, i.e., the child of a predeceased son of the intestate, is not dealt with by statute or in any reported decision in this State.
An infant en ventre sa mere is entitled to share in a legacy to members of a class of relatives "surviving" the testator or "living" at his death. Chemical Bank & Trust Company of New York v. Godfrey, 29 N.J. Super. 226 (Ch. Div. 1953) (cousins); Randolph v. Randolph, 40 N.J. Eq. 73 (Ch. 1885) (grandchildren).
The doctrine favoring infants en ventre so mere is stated in In re Haines' Will, 98 N.J. Eq. 628 (Prerog. 1925):
"* * * By a fiction of the law adopted from the civil law a child en ventre sa mere is supposed in law to be born for many purposes, but only with a single exception [the rule against perpetuities], when it works for the benefit of the child. Thus, it is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. * * *" (at p. 630)
See Smith v. Brennan, 31 N.J. 353, 362 (1960) (recognizing right of infant to maintain tort action for injury sustained while en ventre sa mere); 5 N.J. Practice (Clapp, Wills and ...