Walter A. Karas has been indicted on the charge of murdering his wife and is awaiting trial. In the course of the investigation, the Prosecutor became aware that there were two infant children of the marriage; that there were assets of the mother's estate which probably devolved to the children; that Walter A. Karas had been appointed administrator of his wife's estate. The Prosecutor then applied to the court for the appointment of a guardian to protect the interests of the children. Notice of the application was given to Walter A. Karas and to maternal relatives of the children. At the hearing it appeared that the children were being well cared for by relatives and that, at least for the present, a guardian of their persons was not necessary. Social Security benefits received by the children as the result of their mother's death were being handled carefully by Mr. Karas' brother. The expense attendant upon the appointment of a guardian of the property for the purpose of handling those funds seems neither prudent nor necessary at present. Any personal estate of Mrs. Karas is not, apparently, substantial.
However, it did appear that Walter Karas and his deceased wife owned two improved parcels of real estate as tenants by the entirety. One is located in Long Branch; the other was the family residence in Oceanport. Karas has contracted to sell the Long Branch property. Title is about to close. Karas has agreed to turn over the net proceeds of that sale to his private counsel in payment of fees and expenses for his defense. It being facially apparent that there was a substantial question as to Karas' right to dispose of those proceeds as he saw fit, a guardian ad litem was appointed to represent the interests of the children and the matter was continued for the preparation of briefs and oral argument to determine a) what interest Walter Karas received as the result of his wife's death; b) whether he was entitled to dispose of that interest; c) what rights, if any, of the children were to be protected; d) what relief is appropriate.
Prior to the Probate Reform Act of 1978 the answer to this problem was clear. In Neiman v. Hurff, 11 N.J. 55 (1952), the factual situation was similar. There a husband had been convicted of murdering his wife. They had owned real estate as tenants by the entirety. In vigorous language Chief Justice Vanderbilt stated the public policy in this fashion (at page 60):
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 essential to the observance of morality and justice, has been universally recognized in the laws of civilized communities for centuries and is as old as equity. Its sentiment is ageless. Domat, pt. 2, bk. 1; Code Nap. 272; Mackelday's Roman Law, 530; Coke's Littleton 148-B; Broom's Legal Maxims 9th Ed. 197." On the other hand, to divest the surviving murderer of all legal title violates or does violence to the doctrine of vested rights and would conflict with N.J.S. 2A:152-2:
"No conviction or judgment for any offense against this state, shall make or work corruption of blood, disinherison of heirs, loss of dower, or forfeiture of estate."*fn1
The court then applied the time honored principle that while equity would not interfere with vested legal rights, it would nonetheless accomplish substantial justice by decreeing the imposition of a constructive trust. In that case it resulted in a recognition that legal title to the property was vested solely in the husband as the result of the wife's death. The equitable decree to him directed that he hold that title in trust for the benefit of his wife's beneficiary. It recognized, however, that prior to his wife's death he was a tenant in common with her as to the rents issues and profits from the property during their joint lives. He did not acquire that interest through her death. What he did do by his wrongful act was to terminate that joint life estate. Had the wife lived, that life estate would have terminated in the future on the natural death of the first of the
tenants. Where the wife's life expectancy according to the mortality tables exceeded his, he was not entitled to calculate his one-half life interest by using her expectancy as the measuring stick. Rather, because of his criminal act, that estate would be measured by his own, shorter, life expectancy. Thus the killer-husband was to receive the money value of his one-half interest in the rents, issues and profits based on his life expectancy. The heirs of the wife would receive -- by way of the constructive trust imposed on him -- the other one-half of the life estate and the fee in remainder.
Those basic equitable principles were recognized again in Small v. Rockfeld, 66 N.J. 231 (1974). See Restatement, Restitution § 188 p. 773.
As part of the Probate Reform Act of 1978 (L.1977 Ch. 412) the legislature enacted N.J.S.A. 3A:2A-83(b) -- which, but with one slight change, has been recodified as N.J.S.A. 3B:7-2. That statute provides:
Any joint tenant who criminally and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his property and the killer has no rights by survivorship. This provision applies to joint tenancies and tenancies by the entirety, joint accounts in banks, savings and loan associations, ...