Lofton v. Lofton

215 S.E.2d 861 (1975)

26 N.C. App. 203

Larry LOFTON, Administrator of the Estate of Doug Lofton, et al. v. Robert LOFTON, a minor. Larry LOFTON, Administrator of the Estate of Douglas Lofton, et al. v. Robert LOFTON, a minor, et al. Larry LOFTON, Administrator of the Estate of Douglas Lofton, et al. v. Robert LOFTON, a minor, et al.

No. 7519DC234.

Court of Appeals of North Carolina.

June 18, 1975.

*864 Carlton, Rhodes & Thurston by Richard F. Thurston, Salisbury, for plaintiff appellees.

Kluttz & Hamlin by Richard R. Reamer, Salisbury, for defendant appellant.

BRITT, Judge.

The trial court held that Robert was barred from inheriting any property from, or receiving any benefits accruing because of the death of, his parents, by reason of (1) the provisions of G.S. Ch. 31A and (2) the common law of our State. Plaintiffs contend that they are entitled to an affirmance of the judgment if either (1) or (2) applies.

The recent case of Quick v. Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975), provides considerable guidance for us in the disposition of this appeal. In that case the court either established or reiterated the following principles of law:

1. A person who has been convicted of involuntary manslaughter of another has not been convicted of a "willful" killing within the meaning of G.S. § 31A-3(3), par. a and thus is not a "slayer" who is barred by G.S. Ch. 31A from receiving the proceeds of a life insurance policy on the life of the deceased.

2. The provisions of G.S. Ch. 31A do not completely supplant the common law principle prevailing in North Carolina that a person should not be allowed to profit by his own wrong. G.S. § 31A-15 preserves the common law, both substantively and procedurally, as to all acts not specifically provided for in Ch. 31A.

3. In a civil action to determine the right of a beneficiary who has caused the death of an insured to receive the proceeds of a policy of insurance on his life, the record of the beneficiary's conviction of a "wilful and unlawful killing" is admissible to establish the disqualification of the beneficiary to receive the proceeds under Ch. 31A; however, when the wrongdoer is not disqualified by Ch. 31A from receiving the insurance proceeds, and the common law must be relied on for such disqualification, the record of a criminal conviction of the wrongdoer for a crime not amounting to a "wilful and unlawful killing", such as a conviction for involuntary manslaughter, is not admissible, and it is necessary to prove at the trial the factual circumstances relating to the killing from which the court can determine the issue.

4. Evidence not objected to that a defendant beneficiary had been convicted of the involuntary manslaughter of the insured is sufficient to support the court's conclusion that defendant is disqualified under the common law from receiving the proceeds of the insurance policy.

First, we consider whether Robert is barred by G.S. Ch. 31A from sharing in any of the property or benefits involved in these actions. To be barred by the statutes, he must be a "slayer" as defined by G.S. § 31A-3(3). Under this section there are *865 four subsections and subsections b, c and d clearly are inapplicable. G.S. § 31A-3(3), par. a defines a slayer as "Any person who by a court of competent jurisdiction shall have been convicted as a principal or accessory before the fact of the wilful and unlawful killing of another person; . . . ." The question then arises as to whether Robert has ever been convicted by a court of competent jurisdiction as a principal or accessory before the fact of the willful and unlawful killing of his parents? Our research impels a negative answer.

G.S. § 31A-3(3), par. a envisions a conviction of unlawful homicide. In this State, any unlawful homicide is or may be punishable by imprisonment in the State's prison, hence, it is a felony. G.S. §§ 14-1, 14-17, 14-18. Article I, § 24, of our State Constitution provides: "No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo."

In Smith v. Thomas, 149 N.C. 100, 101, 62 S.E. 772 (1908), Justice Walker, writing for the court, declared that the word convicted means, in law, ". . . [T]he ascertainment of the defendant's guilt by some known legal mode, whether by confession in open court or by the verdict of a jury or, under our Constitution and statute, by the judgment of a justice of the peace, where a jury trial is waived, provided the justice has final jurisdiction of the offense. . . ."

We hold that the finding made by District Court Judge Hammond that "this child (Robert) did wilfully and with malice aforethought murder his mother and father" did not constitute a conviction as envisioned by G.S. § 31A-3(3), par. a, therefore, the "barring" provisions of Ch. 31A do not apply.

We now consider whether Robert is barred by the common law from sharing in any of the property or benefits involved in these actions.

In Garner v. Phillips, 229 N.C. 160, 47 S.E.2d 845 (1948), decided prior to the enactment of G.S. Ch. 31A in 1961, the question was presented as to whether a 16-year-old boy who allegedly murdered his parents was barred from inheriting a share of their property. The court, in an opinion by Justice (later Chief Justice) Devin, said (pp. 161-2, 47 S.E.2d p. 846):

It is a basic principle of law and equity that no man shall be permitted to take advantage of his own wrong, or acquire property as the result of his own crime. (Citations.) True, we have no statute in North Carolina which in express terms destroys the right of inheritance under the canons of descent, or bars the devolution of title as heir to one who has murdered the ancestor from whom derived, but the rule seems to have been established in this jurisdiction that in such case equity will impress upon the legal title so acquired a constructive trust in favor of those next entitled and will exclude the murderer from all beneficial interest in the lands descending to him from his victim. . .

We hold that the principle stated in Garner, upon a proper establishment of facts, would apply to the case at hand. That brings us to the final question of whether the court, as was true in Quick, had before it sufficient established facts to support its conclusion that Robert was disqualified under common law from sharing in the property and benefits involved in these actions.

In the original answers filed, Robert's guardian ad litem admitted that Robert had unlawfully and willfully shot and killed his parents. However, prior to trial the guardian ad litem was permitted to delete those admissions and plead instead allegations to the effect ". . . that the defendant Robert Lofton admits that he willfully shot *866 and killed his father and mother but he denies that his acts in so doing were unlawful for the purposes of determining the outcome of these three actions. . . ." The record contains a stipulation that at trial the evidence included a review by the court of the juvenile proceeding conducted by Judge Hammond but due to the confidential nature of the material contained in the record of the proceeding, counsel for plaintiffs and defendants consider it necessary to stipulate in this record only the juvenile order. The order entered by Judge Hammond contained a finding, as fully set forth above, that Robert "did wilfully and with malice aforethought murder his mother and father".

No case from this jurisdiction has been cited, and our research fails to disclose one, that provides an explicit answer to the question with which we now labor. Plaintiffs do cite the New York case of In re Sengillo's Estate, 206 Misc. 751, 134 N.Y.S.2d 800 (1954).

Considering the fact that the trial court had before it a judicial admission that Robert had willfully shot and killed his parents, and also had before it, by stipulation, the order of Judge Hammond in which he made a determination that Robert "did wilfully and with malice aforethought murder" his parents, we hold that the trial court's conclusion that Robert was disqualified to share in the property and benefits involved in these actions was sufficiently supported. Quick v. Ins. Co., supra.

For the reasons stated, the judgment appealed from is

Affirmed.

PARKER and VAUGHN, JJ., concur.