Texas Slayers Rule: May A Killer Inherit? (2002-3)

YouKnowItAll.com

© A. Hawkins 2002

The Essence of the Slayer’s Rule

The essence of the Slayer’s Rule is that a person who intentionally and wrongfully causes the death of another person may not benefit from the death by receiving property as a result of the death. The Slayer’s Rule is not a “rule” in the technical sense of the word. It is a blend of common law and statutory law.

The Slayer’s Rule Courses

This is one of a cluster of two courses on the Texas Slayer’s Rule. The Slayers’s Rule determines if someone who causes the death of another may receive an inheritance, life insurance, or other property as a result of the death. This course concentrates on probate assets and nonprobate assets other than life insurance. The other course concentrates on life insurance. The material overlaps so both courses are required for a complete knowledge of either category of assets. These courses, in combination, are provide a comprehensive review of the Texas Slayer’s Rule.

The Process

1. Study this text.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations; deleted original emphasis, added the authors emphasis; and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

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If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

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Table of Contents

Introduction

Slayers in the Headlines

Millionaire's assets go to slain ex-wife's survivors

Murder-suicide suspected

Man convicted of killing mom for not paying for female escort

Mayhew to go on trial in civil court for slaying

Siblings' lawyers debate motive in Mayhew trial

Millionaire's son found responsible for slaying

Dead Woman's Parents Sue Husband Who Withdrew Air Bag Suit

Official: Nepal Crown Prince Kills 8

Acting king blames 'accidental' gunfire in royal slayings; protests erupt

Princess dies in helicopter crash

“Suspect’s wife speaks out about mistress’ slaying

Love Triangle Leads To House Fire

Yates

Woman runs over husband, dies in car wreck, police say

Girl's maturity weighed in brother's killing

Woman arrested in parents' slayings

Texas Law

American Slayer’s Rule Concepts

The Texas Slayer’s Rule

Pritchett v. Henry 287 S.W.2d 546 (Tex.Civ.App. - Beaumont 1955)

Bounds v. Caudle 560 S.W.2d 925 (Tex. 1978)

Bounds v. Caudle 611 S.W.2d 685 (Tex.App. - Corpus Christi 1980)

Ford v. Long 713 S.W.2d 798 (Tex.App. - Tyler 1986)

Ovalle v. Ovalle 604 S.W.2d 526 (Tex.Civ.App. 1980)

Thompson v. Mayes 707 S.W.2d 951 (Tex.App. - Eastland 1986)

Sanderson v. Sanderson 591 S.W.2d 623 (Tex.Civ.App. - Austin 1979)

Parks v. Dumas 321 S.W.2d 653 (Tex.Civ.App. -Ft. Worth 1959)

Dopps v. Dopps 636 S.W.2d 723 Tex.App. - Corpus Christi 1982)

Gordy v. Alexander 550 S.W.2d 146 Tex.App. - Amarillo 1977)

Mejorada v. Gonzalez 663 S.W.2d 891 (Tex.App.- San Antonio 1983)

Ragland v. Ragland 743 S.W.2d 758 (Tex.App. - Waco 1987)

Weldon v. Hill 678 S.W.2d 268 (Tex.App. - Ft. Worth 1984)

Medford v. Medford January 31, 2002 (Tex.App. - Ft. Worth 2002)

Mitchell v. Akers 401 S.W.2d 907 (Tex.Civ.App. - Dallas 1966)

Other cases that involve issues that are common in Slayer’s Rule cases.

Johnston v. American Medical 36 S.W.3d 572 (Tex. App. Tyler 2000)

Thompson v. State 676 S.W.2d 173 (Tex.App. -Houston [14th Dist.] 1984)

Future Texas Slayer’s Rule Issues

Is Withdrawal of Artificial Life Support A Slaying?

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Course Text

Texas Slayers Rule: May A Killer Inherit?

Introduction

1996 closed a century of development of the Texas Slayer’s Rule which holds that a person who intentionally and wrongfully kills should not benefit from taking that life. The rule that a Slayer may not profit from his wrongful and intentional killing is legally sound, morally right, and intuitively correct.

The author first encountered a Slayer’s Rule case when he assisted the sisters of a slaying victim. The victim was a mother of an only child, a thirteen year old girl. The daughter strangled her mother to death. The slayer was the beneficiary of her mother’s estate plan which included a will, a trust, and insurance. Various facts occured in five states. Texas was not significantly involved. The case was emotionally difficult and intellectually interesting.

That one case covered several issues that have arisen in Texas Slayer’s Rule cases, as well as issues that have not yet arisen in Texas. This course covers Texas law. Several potential issues have not yet been litigated in reported Texas cases. They will be as Texans continue killing their friends, parents, children, siblings, relatives, and lovers. The Slayer’s Rule is not as simple to apply as it may seem. Sometimes Texas slayers lose their inheritance. Sometimes they don’t. After the slaying, there is plenty to litigate.

Before turning to the law books, we look to the news headlines for interesting Slayer’s Rule fact situations that raise classic Slayer’s Rule issues of Shakespearean proportions. The facts in news reports often raise interesting Slayer’s rules issues of accidental death, self defense, killing someone other than the intended target, insanity, and divinity. The next time you read in a newspaper about an intentional or accidental death, consider the Slayer’s Rule issues presented by the facts, and those that would arise if the facts were slightly different.

The law books and newspapers demonstrate an interesting phenomenon. Slayer’s Rule situations are common.

Slayers in the Headlines

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A classic Slayer’s Rule case.

Millionaire's assets go to slain ex-wife's survivors[1]

The assets of a millionaire Central Texas businessman who arranged the murder of his ex-wife while she was home with her toddler quadruplets will be distributed among the slain woman's family, a judge has ruled.

A district judge this week lifted the freeze on the assets of Allen Blackthorne, who paid to have Sheila Bellush killed in Florida in 1997.

Mr. Blackthorne's assets will be distributed among Ms. Bellush's survivors as part of an out-of-court settlement of their wrongful death claim against him.

Earlier this year, Mr. Blackthorne's stock in the privately held company RM Medical was estimated to be worth close to $4.5 million. But lawyers aren't saying how much the survivors might share.

"Our first mission was to do everything we could to get Allen Blackthorne convicted. The secondary mission was, if we were ever able to trap any proceeds, to get every dollar we could over to the children and Jamie Bellush," the victim's widowed husband, said J. Ken Nunley of Boerne, Texas, lawyer for Sheila Bellush's survivors.

The amount of money to be divided among Sheila Bellush's six children and other relatives will depend on the outcome of the liquidation of Mr. Blackthorne's stock holdings, lawyers told the Houston Chronicle for Friday's editions.

The sale, which could be completed Friday, was authorized by state District Judge Pat Boone, who lifted his March 2001 injunction barring Mr. Blackthorne and his second wife from disposing of the stock.

Formal distribution of the stock sale proceeds to the victim's survivors should occur next week, officials said.

Mr. Blackthorne was sentenced in a San Antonio federal court to two life prison terms for arranging Ms. Bellush's murder. Ms. Bellush was slashed and shot to death in her home in Sarasota, Fla., in front of her quadruplets, who were 23 months old at the time.

Three other men were convicted of federal conspiracy charges. Daniel A. Rocha, a former golfing buddy of Mr. Blackthorne's, and Sammy Gonzalez were found guilty of helping arrange the killing by assailant Jose Luis Del Toro. All are serving life terms in federal prisons.

Mr. Blackthorne, 46, also was fined $250,000 and ordered to pay $17,020 in restitution.

But survivors later filed wrongful death claims in state and federal court in an attempt to secure Mr. Blackthorne's funds.

Mr. Blackthorne had made millions marketing equipment to stimulate muscles, lawyers said.

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A Life-like attorney and a Slayer’s Rule Case. Consider the procedural and substantive issues that will arise in sorting out who survives, and who takes the estates of the various related decedents. This would be difficult without a Slayer’s Rule issue. Note also that the possible slayer, if dead, will not be convicted of a crime.

Murder-suicide suspected

Killing of 2 neighbors linked to missing businesswoman

By ROBERT THARP / The Dallas Morning News 01/04/2002

Relations between the co-founder of a Carrollton prosthetics clinic and her eldest son grew increasingly bitter in the months before the two vanished and later became the subject of a murder-suicide investigation that also claimed the lives of two of the woman's neighbors.

The 21-year-old family business, Life-like Laboratories, was caught in the middle as Inger Buckner accused her son, Michael Buckner, of taking $60,000 and destroying the business by stealing company computers, attacking his younger brother, and clandestinely transferring telephone numbers in an attempt to divert customers, according to court documents.

The two disappeared Dec. 15. Ms. Buckner's next-door neighbors in the 6500 block of Meadowcreek Drive – Ralph Throneberry and Joan Wildenhaus – were also last seen on that day.

Police discovered the couple's bodies inside their home Wednesday afternoon, and investigators were trying to determine whether a third body was that of Ms. Buckner, 62. Medical investigators said they will rely on dental records to identify the body.

Concerns about a murder-suicide arose because Michael Buckner's body was recovered from Lewisville Lake on Sunday, and authorities said it appeared that he had shot himself on the family's powerboat and fallen overboard.

The three bodies found inside the home were badly decomposed and had likely been inside for several days or weeks, authorities said. Medical investigators said it appeared that the three had been shot.

Court documents show that Michael Buckner was increasingly at odds with his mother and younger brother, Mark Buckner.

In a Collin County lawsuit, Ms. Buckner's attorneys accused Michael Buckner of bilking the company and intentionally disabling the business. Michael Buckner, who was a certified public accountant and a nonpracticing attorney, removed company computers that contained accounts and billing information and changed passwords linked to financial information, the lawsuit charged.

Money missing?

He also pirated the company's telephone numbers and used those phone lines to interfere with the business and compete with the company, the suit said. Besides a $60,000 check that he wrote to himself, the lawsuit charged, another $100,000 was missing.

An injunction signed by a judge days before the two disappeared ordered Michael Buckner to discontinue the alleged actions and return the money.

The lawsuit resulted in a temporary restraining order against Michael Buckner and his "significant other," former Life-like employee Michelle Scott, the lawsuit said.

The lawsuit claims the couple, who lived together in Plano, were wrongfully trying to compete with Life-like. Ms. Scott could not be reached at her apartment in Plano on Thursday.

Michael Buckner, 41, assumed control of the business after his father, Horst Buckner, died in 1997. Family members could not be reached for comment Wednesday.

Residents in the Far North Dallas neighborhood where Ms. Buckner lived next door to the ranch-style house shared by Mr. Throneberry and Ms. Wildenhaus said the two households were close.

Mr. Throneberry, 58, retired in 1999 from a career in commercial finance, most recently as a regional vice president for Bank of America. He and Ms. Wildenhaus, 59, owned several pieces of commercial and residential property that they leased. They also liked to ski, and Ms. Wildenhaus was often seen in her older-model orange Corvette.

"He was an easygoing, calm and collected person," Said Larry Brown, a family friend. "He had a multitude of friends."

Neighbor shocked

Although police were working to confirm whether the third body was Ms. Buckner, Mr. Brown said he believes his two friends were probably shot trying to help Ms. Buckner.

"It's just unbelievable," he said. "It's one of those situations where a person is in the wrong place at the wrong time. I wouldn't be at all surprised if Ralph and Joan were trying to help her and got caught in an unfortunate situation."

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Mom didn’t pay the bill for the services her son sought, and he was miffed. If this case was governed by Texas law, would the Slayer’s Rule also preclude the son’s inheritance? What do you think of the accidental death defense and the drug impairment defense. Although the slaying was “wrongful,” was it accidental? Is it possible to be so lacking in mental capacity that “intent” is not possible? This is a great example of the influence of jury an judge appeal. This is not an appealing slayer.

Man convicted of killing mom for not paying for female escort[2]

A Scottsdale man was convicted of first-degree murder Friday for killing his mom after she refused to pay for a female escort.

Dean Glick had agreed to pay Soledad Villalpando a $1,500 tip on top of the $350 two-hour fee to her agency.

Glick planned to pay the $1,850 with his mother's credit card.

"It's clear by the facts in this case the defendant was just bothered by his mother," said prosecutor Juan Martinez during closing arguments Thursday.

According to the prosecution, Glick became frustrated with 82-year-old Juanita Glick and beat her with a plastic flashlight, hitting her 10 to 20 times.

The beating took time as Glick's mother struggled to keep her only child at bay, Martinez said.

When police entered Juanita's home about 1:15 a.m. on Sept. 17, 2000, they found the 5-foot-5, 102 pound, elderly woman lying on the bathroom floor with a six-by-seven inch bruise on her face. She had a faint pulse but was moments from her death.

Glick, who had cocaine and phenobarbital in his system, had tried to keep police out by barricading the door. Shortly after they arrived, the escort and her driver left the house when Glick and his mother argued over the money, which was to be paid in advance. They later called police.

Glick, 41, sobbed as his attorney painted a different picture of what could have happened that night.

Defense lawyer Daniel Patterson said a pushing-and-shoving match had gone too far and that perhaps Glick had broken his mom's ribs and sternum during an attempt to revive her through CPR.

Patterson asked the jury to find his client guilty of negligent homicide.

Neither Glick's emotion or Patterson's scenario swayed the jury, which returned a verdict after about four hours of deliberation.

"It's satisfying that the jury found it's way to a first-degree murder conviction given the fact that it was his mother he killed," Martinez said.

Patterson had no comment on the trial.

Glick's sentencing has been scheduled for April 26. He could face life in prison without parole.

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The reporter thinks it odd to have a Slayer’s Rule case without a prior conviction. A conviction is not required. If it was, the Life-like attorney and slayer would be in the clear as well as in the drink. Mayhew might have more jury appeal if he had not threatened to kill his father before someone did just that.

Mayhew to go on trial in civil court for slaying[3]

Trial involves not-so-civil siblings in case of father's death

Chuck Mayhew is about to become a rarity in the annals of Dallas County justice. The scion of a wealthy industrialist is going on trial in civil court Tuesday in a slaying he has not been charged with committing.

His accuser is not the state of Texas but his sister, Amanda Mayhew Dealey, a one-time Dallas socialite whose 1972 kidnapping produced the longest prison sentences assessed at that time by an American jury.

Ms. Dealey, 51, contends in a lawsuit that her brother shot and killed their father in a drunken rage March 1, 1998, while 81-year-old Charles M. "Charlie" Mayhew Sr. lay asleep in his Sunnyvale home.

Chuck Mayhew, who has a record of alcohol-related offenses and shooting dogs and once boasted of being a paid assassin, has acknowledged making numerous threats on his father's life. But he has denied involvement in the slaying and filed a countersuit accusing his sister of defamation.

Mr. Mayhew, 49, declined to be interviewed last week. "I guess we'll do our talking about it when we get to the courthouse," he said from his home in Longview.

His attorney, Bill Hommel of Tyler, did not return several phone calls to his office. But he has said in court filings that Ms. Dealey has no evidence "other than circumstantial speculation."

The slaying remains unsolved. A spokesman for the Dallas County Sheriff's Department said the case was still open, but investigators have not been able to accumulate enough evidence to present to a grand jury.

"We have not cleared anyone," Sgt. Don Peritz said.

Several sheriff's investigators have been subpoenaed by Ms. Dealey's attorneys, and Sgt. Peritz said they would be interested to learn any new evidence that may be presented after testimony begins Wednesday.

Frustrated detectives

"This is one of those big cases where you want to see it closed and see to it that justice is done," Sgt. Peritz said. "The detectives are frustrated, but they are patient."

Ms. Dealey's lawsuit, which she filed without an attorney four days before the civil statute of limitations expired in March 2000, is an example of a growing national trend of suing alleged wrongdoers.

What makes Ms. Dealey's suit exceptional is that it is going to trial before any criminal charges have been filed. Typically, as in the O.J. Simpson case, such civil trials follow completion of a criminal proceeding.

The primary advantage Ms. Dealey enjoys over prosecutors is a lesser burden of proof. To prevail, she must prove her accusations against Mr. Mayhew by a "preponderance of the evidence" rather than the more rigorous criminal standard of "beyond a reasonable doubt."

Her attorneys have already compelled Mr. Mayhew to give a lengthy deposition, and he can be summoned to testify. If he chooses to invoke his right against self-incrimination, jurors may be told of that decision.

Unlike in a criminal case, where a unanimous decision is required, only 10 of the 12 jurors have to agree to reach a verdict.

Ms. Dealey, who has lived in Austin for the last two decades, initially filed court papers seeking $5 million in damages to compensate herself and her father's estate for his wrongful death. She could not be reached for comment last week.

Her lead attorney, Steve Sumner, said his client's primary intent was to fulfill what she believes would have been her father's wish to have a jury declare Chuck Mayhew to be his murderer.

"The fact of the matter is that Mandy is very principled and feels very strongly that she wants her day in court and her brother held accountable for what he did," Mr. Sumner said.

Ms. Dealey was formerly married to Joe Dealey Jr., who is the son of the late former Dallas Morning News president and publisher Joe M. Dealey Sr. She is also an investor and civic activist in Austin and ran unsuccessfully for the state Legislature in 2000.

Mr. Sumner, who defended millionaire Cullen Davis in a wrongful death suit arising from two 1976 slayings at his Fort Worth mansion, said he has developed a strong circumstantial case against Mr. Mayhew.

The case should have been presented to a grand jury, he said. "I can tell you I have defended other [murder] cases that had far less evidence than in this case," he said.

Development project

Mr. Sumner said he intends to show Charlie Mayhew's slaying was the result of years of bad feelings between the victim and his only son that revolved around a protracted legal battle over a land development project.

Father and son were partners in a company they formed to subdivide about 1,200 acres of land in Sunnyvale to build 5,000 houses.

The project was blocked by a Sunnyvale town ordinance that required home lots to be 1 acre or larger. In 1987, the Mayhews sued to overturn the ordinance, claiming it discriminated against middle-class homeowners.

The Mayhews won their case and an $8.5 million judgment against Sunnyvale in 1992, but the decision was overturned on appeal. They were awaiting a ruling by the Texas Supreme Court when Charlie Mayhew died.

According to Ms. Dealey's lawsuit, her father's legal battle with the city he once served as mayor left him frail and nearly broke.

The financial stress was a constant source of friction between Charlie Mayhew and his son, court records show. Things got worse in March 1995 after Charlie Mayhew accepted his son's resignation from the partnership. Chuck Mayhew said his offer to quit had not been serious.

Chuck Mayhew, a world-class sports shooter who attended St. Mark's School for Boys and Southern Methodist University, developed a chronic alcohol problem, which often led to violent outbursts, the suit said.

"When Chuck's father denied him what he wanted, Chuck would threaten to kill him. He stated he was going to kill him, and he described how. That's the way it worked in the Mayhew household," Ms. Dealey's attorneys stated in a court motion filed last September.

Chuck Mayhew told Ms. Dealey and his father's longtime secretary in 1996 that he had entered his father's home late at night and put a gun to the old man's head. He later said his story was not real but meant to illustrate how easy it would be to harm his father, court documents stated.

At the time of his death, the elder Mr. Mayhew was taking steps to remove his son as a beneficiary on his life insurance policy, Mr. Sumner said. The elder Mr. Mayhew also tried several weeks before his death to have his son committed to a mental health facility because of his behavior.

Chuck Mayhew admitted in a deposition last year that he had threatened to kill his father "at least a thousand times" without intending to do so. He said their last argument was the day before his father's death.

Gunshot wound

The night of the killing, Mr. Mayhew said, he had an argument with his wife and told her he was going to his father's home. But instead, he said, he went to a bar in Sunnyvale and then to his wife's home in Forney.

Mr. Mayhew said he did not know his father was dead until his sister's son, Christopher Dealey, called him about 1 p.m. on March 1, 1998.

According to court records, Mr. Dealey found his grandfather in his bed with the covers pulled around his head. When he touched Mr. Mayhew's neck, he discovered a gunshot wound below the left ear.

The medical examiner ruled that Mr. Mayhew died from a single shotgun blast that was fired close enough that paper wadding from the fired shell was found imbedded in the wound.

Sheriff's deputies found a 12-gauge shotgun in the Mayhew home that appeared to have been fired recently, but they were unable to identify it as the weapon that killed Mr. Mayhew. The 12-gauge belonged to Chuck Mayhew.

Investigators found no evidence of forced entry into the Mayhew home and no signs of a struggle or a burglary.

Sgt. Peritz said the investigators have "suspicions" about who committed the crime, but he declined to elaborate.

Mr. Sumner said his investigation points the blame at Chuck Mayhew. He was deeply in debt, dependent on his father for support and increasingly fearful that he was about to be cut off, Mr. Sumner said.

"Mr. Mayhew had no enemies," Ms. Dealey's attorneys stated in a court filing last year.

"No one had a motive to kill Mr. Mayhew other than his son, who knew his father was divesting him bit by bit of financial authority, who had no finances of his own and easily could have seen the note in his father's car regarding changing insurance beneficiaries."

Mr. Sumner said he also has a witness who saw Chuck Mayhew driving away from his father's home during the 11 p.m. to 1 a.m. time period that the medical examiner estimated the elder Mayhew was slain.

Ms. Dealey's attorney said he had not shared his evidence with the Sheriff's Department or the Dallas County district attorney's office but would be willing to do so at the conclusion of the trial.

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Siblings' lawyers debate motive in Mayhew trial[4]

An unusual murder trial in a Dallas civil court opened Wednesday with the accused man's attorney contending that the case against his client is "a house of cards" rooted in his sister's lifelong envy.

Chuck Mayhew, 49, may have had a sometimes-bitter relationship with his father, former Sunnyvale Mayor Charles M. "Charlie" Mayhew Sr., but he had no motive to commit murder, attorney Bill Hommel said.

"It doesn't make sense that Chuck Mayhew would be the one to take his father's life," Mr. Hommel said.

Mr. Hommel made his remarks during opening statements to the jury in the $5 million wrongful-death lawsuit filed against Mr. Mayhew by his sister, Austin socialite Amanda Dealey.

The suit, which has come to trial in civil court before any criminal charges have been filed, accuses Mr. Mayhew of fatally shooting his father on March 1, 1998, while the 81-year-old man lay in bed in his rural Sunnyvale home.

The elder Mayhew, who amassed a multimillion-dollar estate through oil drilling and investments, died from a shotgun blast to the neck.

The investigation into his death remains open but has not produced enough evidence to seek a grand jury for indictment, according to a spokesman for the Dallas County Sheriff's Department.

Mr. Hommel told the jury that Ms. Dealey harbored a lifetime of jealousy for her brother because of his close relationship with their father.

"This is not Father Knows Best," Mr. Hommel said. "This is a family that operates differently than any other family represented in this courtroom."

He contended that Chuck Mayhew had no role in his father's slaying, suggesting that Charlie Mayhew told a longtime confidant on the day of the slaying that he was afraid of a neighbor whom he suspected of involvement in equipment thefts from his property.

The civil case has generated national interest because, unlike other high-profile suits stemming from homicides, it has come to trial before any criminal proceedings. The trial is expected to last up to three weeks.

Ms. Dealey, 51, is a prominent figure in Austin social circles and ran unsuccessfully for the Texas Legislature in 2000. She was previously married to the son of a former publisher of The Dallas Morning News .

Her lead attorney, Steve Sumner, told the jury that he has "strong circumstantial evidence" that Mr. Mayhew killed his father because he feared losing access to a large inheritance.

"I believe the evidence will show no one else had the motive to murder him because he just didn't have any enemies," Mr. Sumner said.

Mr. Sumner spent more than an hour describing to jurors how he expected his witnesses to show that Chuck Mayhew engaged in an escalating campaign of abusing his father in the years before his slaying.

"He was a man consumed with killing," Mr. Sumner said.

At the time of his death, Charlie Mayhew was increasingly fearful of his son and was in the process of shifting control of his estate and business affairs to Ms. Dealey and her son, Christopher Dealey, Mr. Sumner said.

Ms. Dealey sued her brother to see that justice is done, he said.

"It's not about money. It's not about greed. It's not about sibling rivalry," Mr. Sumner said. "It's about him being held accountable and his dad's wishes being fulfilled."

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Millionaire's son found responsible for slaying[5]

A Dallas civil court jury awarded $26 million Friday to former socialite Amanda Dealey after deciding her brother caused the death of their elderly father despite never being charged with his slaying.

After a three-week trial, jurors deliberated five hours before finding Charles "Chuck" Mayhew Jr., 49, responsible for the 1998 shotgun slaying of his 81-year-old father, former Sunnyvale Mayor Charles "Charlie" Mayhew.

No criminal court has heard the matter, although that may change because of the verdict in the wrongful-death lawsuit Ms. Dealey filed.

Mr. Mayhew, now of Longview, acknowledged that he had a love-hate relationship with his father but denied any involvement in his death. His attorney accused Ms. Dealey of blaming her brother to try to strip him of his large inheritance.

Mr. Mayhew left the courtroom without speaking to reporters. His attorney, Bill Hommel, said Mr. Mayhew was "pretty tore up" by the verdict. He continued to maintain that his client is innocent.

"We didn't feel like the evidence supported the verdict," he said, adding that Mr. Mayhew did not have much money and could not pay the judgment.

Attorneys for Ms. Dealey contended that it was Mr. Mayhew's fear of losing access to his father's wealth that drove him to kill his father. Although she asked for $5 million, she said her aim was to seek justice for her father.

"It's a relief to have it over," Ms. Dealey, 51, said after the verdict. "And I think it will give the closure we all needed."

Don Peritz, a spokesman for the Dallas County Sheriff's Office, said detectives will review the evidence they collected along with that in the civil case and decide whether to submit a case to a grand jury.

"It appears the jury in the civil case has spoken and justice has been served in that venue," Mr. Peritz said.

Mr. Peritz said no one, including Mr. Mayhew, has been ruled out as a suspect in the elder Mayhew's death.

The elder Mr. Mayhew was found dead in bed at his rural Sunnyvale home March 1, 1998. The Dallas County medical examiner ruled that he died from a single blast to the neck fired at close range from a .12-gauge shotgun.

Investigators ruled out robbery as a motive because there was no forced entry into the house and no property was taken.

There was little physical evidence to help identify the killer.

Mr. Mayhew was questioned at least three times by investigators. He and his wife were advised of their rights, a routine practice when investigators consider someone a suspect.

The lead detective, Howard Sparks, testified that his office did not refer the case to the grand jury after a senior-level prosecutor advised him in 1998 that there was not enough evidence to get a conviction.

Evidence produced by Ms. Dealey's attorneys showed that Mr. Mayhew, an avid hunter, had threatened repeatedly to kill his father for years.

Acquaintances testified that it was routine for Mr. Mayhew to angrily berate and insult his father in front of others. One witness said she once saw him hit his father in the face and point a gun at him another time.

Ms. Dealey's attorneys said that Mr. Mayhew's behavior became increasingly more threatening in the years after his father accepted his resignation from their troubled real estate partnership in 1995.

The partnership, which had sought to develop 5,000 homes on 1,200 acres in Sunnyvale, was mired for more than a decade in a lawsuit to try to overturn a town ordinance that required lot sizes to be an acre or larger.

The legal battle, which the Mayhews lost, cost the elder Mr. Mayhew his multimillion-dollar fortune. His son also lost a $1 million investment and had no other income besides money from his father.

In the months leading up to his death, business associates said, Mr. Mayhew changed his will to reduce his son's share of his estate, gave Ms. Dealey more control of his business affairs and was about to eliminate his son as a beneficiary on his life-insurance policy.

The day Mr. Mayhew died, his son admitted that he became intoxicated from drinking beer and had an argument with his father over the phone regarding their longstanding business disputes.

Mr. Mayhew said he did not go to his father's home the night of the slaying, but he gave conflicting accounts of his whereabouts in the hours around the time that the medical examiner said his father was killed.

A neighbor, Pat Stiager, said he saw Mr. Mayhew driving on the road to his father's house, but in the opposite direction, sometime before midnight. But Mr. Stiager also admitted he had been smoking marijuana.

Mr. Hommel, the defense attorney, said to jurors in his closing arguments Friday that Ms. Dealey and her attorneys had no evidence but were trying to smear Mr. Mayhew with his unsavory behavior.

After the verdict, he agreed that the jury was swayed by the depiction of his client as a vile, hateful son.

"I think that had a lot to do with it," he said.

Mr. Hommel had suggested throughout the trial that a neighbor of the elder Mr. Mayhew had killed him because of a dispute over the ownership of a deer stand and a gooseneck trailer.

Ms. Dealey's lead attorney, Steve Sumner, ridiculed the accusation. "It's an ABC defense, Anybody But Chuck," he told jurors.

Mr. Sumner and his co-counsel, Rebecca Hamilton, contended there was more than enough evidence to meet the legal requirement that it was more likely than not that Mr. Mayhew had killed his father.

"We believe we have enough evidence to present to a grand jury," said Ms. Hamilton, who urged jurors to use their verdict to send a message urging District Attorney Bill Hill to prosecute Mr. Mayhew.

The jury foreman, Jim Schutz, said the panel structured the amount of their verdict to send a message about the damage inflicted on Ms. Dealey and her father. He said he had no opinion on a criminal prosecution.

"I think it would be a difficult case to prove given the evidence," said another juror, Ursula Bourgeois.

Ms. Dealey was married in the 1970s to Joe Dealey Jr., son of a former publisher of The Dallas Morning News. She now lives in Austin and is married to Larry Speck, dean of the University of Texas School of Architecture.

* * * * *

A slayer should avoid filing suits that may prove culpability.

Dead Woman's Parents Sue Husband Who Withdrew Air Bag Suit[6]

A dentist who sued Ford Motor Co. claiming a faulty air bag caused his wife's death, then withdrew the case when Ford proffered evidence of his own culpability, has been hit with a suit himself -- lodged by his former in-laws.

Last Monday, Doris and Donald Rose, of Hyannis, Mass., sued Eric Thomas, of Cape May Court House, N.J., for the wrongful death of their daughter, Tracy, who was found dead behind the wheel of her Ford Explorer on Feb. 9, 1997. The federal court suit, filed in Camden, N.J., seeks compensatory and punitive damages and to deny Thomas a share of her estate.

The Roses filed a separate complaint in the Cape May County Superior Court Chancery Division, asking to have Thomas ousted as administrator of Tracy's estate and replaced with Doris Rose, who also seeks to be appointed guardian ad litem of the couple's daughter, Alix.

"We are determined to achieve some measure of justice for this family and ferret out the truth of Tracy's death. We believe the evidence will point directly to Dr. Thomas," says the Roses' attorney, Maplewood, N.J., solo Robert Pickett.

Local authorities had concluded that the death was caused by blunt force trauma from the passenger-side air bag, which had deployed in a minor crash. But in the course of discovery in Thomas' product liability suit against Ford, a defense expert said that Tracy's injuries appeared consistent with strangulation. Discovery also showed that Thomas lied under oath about having an extramarital affair and that the days before his wife's death he made dozens of phone calls to his mistress, whom he later married.

Last July, Thomas withdrew his civil suit against Ford, saying the litigation was becoming too costly.

The investigation into Tracy's death was reopened last year following the discovery disclosures, but Acting Cape May County Prosecutor J. David Meyer said on Feb. 21 that his office would not charge Thomas unless it received additional information. Meyer said the differing opinions of numerous experts would make it difficult for a jury to conclude beyond a reasonable doubt that the death was a homicide.

As of Friday, Thomas had not yet been served with the federal complaint, which lists Does 1-10 as unknown co-conspirators. Pickett says he has no specific information suggesting others were responsible for Tracy's death. He says the Roses have a theory about how she died but he declines to discuss it.

* * * * *

The crown prince of slayers.

Official: Nepal Crown Prince Kills 8

By Binaj Guruacharya Associated Press Writer Friday, June 1, 2001

“KATMANDU, Nepal –– Nepal's crown prince opened fire in the royal palace Friday, killing the king, queen, a prince, and five others before shooting himself, a senior military official said.

“The official said Crown Prince Dipendra, 30, killed all the members of the royal family. The dead included his parents, King Birendra and Queen Aiswarya, and his younger brother, Prince Nirajan.

“According to the official, who spoke on condition of anonymity, the shooting was caused by a dispute over the marriage of the prince because his mother, the queen, reportedly objected to his choice of bride. No other details were immediately available.

“The crown prince, educated at Britain's Eton College, was heir to the throne.

“King Birendra, the constitutional monarch, was stripped of power in 1990 and a parliamentary government was established.

“Hundreds of people lined the streets of Katmandu last Dec. 29 to greet King Birendra on his 55th birthday. Schools and government offices were closed as well.

“The Himalayan kingdom of Nepal is located in South Asia, to the north of India.

* * * * *

Acting king blames 'accidental' gunfire in royal slayings; protests erupt[7]

“KATMANDU, Nepal — Nepal's acting king today blamed ‘accidental’ machine-gun fire for killing most of the royal family, an explanation that provoked angry disbelief in the Himalayan nation.

“Hundreds of people burned tires in the center of Katmandu, the capital, demanding to know the truth behind the Friday night killings. Many city residents shaved their heads — a Hindu sign of respect that typically follows a father's death.

“Senior government and palace officials today privately disputed the acting king's version of events, reiterating that Crown Prince Dipendra gunned down his parents — the king and queen — and six other relatives during a family dinner before turning his weapon on himself.

“The prince, who remains in critical condition, was reportedly angry that he had been denied his bride of choice.

“Publicly, however, officials began backing away from that explanation over the weekend — possibly because Dipendra, even though he was reportedly placed on life support systems, is now technically king and monarchs are above reproach in this Himalayan kingdom.

“Dipendra's uncle, Prince Gyanendra, was named acting king due to his nephew's health.

“Eight people died in the attack Friday night and three people besides Dipendra were injured. Details have remained sketchy, provided by military sources within the royal palace and officials familiar with the workings of the royal family.

“Victims of the shooting included King Birendra, 55, Queen Aiswarya, 51, his brother and sister, Prince Nirajan, 22, and Princess Shruti, 24.

“The royal family had gathered for dinner to discuss the wedding of Dipendra. Sources close to the family said that the prince wished to marry the daughter of a former government minister who is a member of the aristocratic Rana family, which ruled Nepal until 1951.

“Gyanendra issued a statement Sunday blaming "accidental firing of an automatic weapon'' for the deaths of King Birendra, the queen and six other royals.

“The late king's younger brother did not say who did the shooting, but many people mourning the loss of their king — viewed by many as an incarnation of the Hindu deity Vishnu — found Gyanendra's explanation preposterous.

“ ‘How can a gun go off and shoot a dozen people in all different directions?’ asked Dhan Gurung, a rickshaw driver. ‘This is ridiculous.’

“ ‘I've been in the army, and I know,’ agreed Bal Bahadur Tamang, a retiree out shopping. ‘There is no such thing as a freak accident like this. Accidents can claim one life, but not spray bullets over eight people.’

“Many Nepalese said they cannot accept Dipendra as king because they believe he killed his revered, soft-spoken father — but now that Dipendra is king, it would be difficult for Nepalese officials to publicly accuse him of anything.

Monarchs here have little formal power, but public criticism is taboo. The constitution says: ‘No question shall be raised in any court about any act performed by his majesty,’ and even the Parliament is prohibited from discussing the affairs of the royal family.

On Sunday, an old photograph of Dipendra in royal attire ran on page one of the government newspaper, The Rising Nepal. The newspaper mentioned no gunfire and said the previous king had died in ‘an unanticipated incident.’

Government officials could not be reached for comment Sunday — a five-day period of mourning had been declared, and any statements were to be issued through the official news agency.

Prime Minister Girija Prasada Koirala said late Saturday that the government would investigate the killings, but he may have been seeking to preserve calm, since only the king can order investigations into matters involving the royal family.

“Koirala visited the new King Dipendra and three injured royal family members in the military hospital Sunday and described the king’s condition as ‘extremely critical.’

“During a royal funeral procession at sunset Saturday, hundreds of thousands of mourners lined the streets. They wailed, clasped their hands in respect and offered flowers as the bodies were taken for cremation according to Hindu rites.

“Some suspected the government in the palace massacre. Officials have said there was no involvement by Maoist rebels who have sought to overthrow the monarchy.

“Birendra was remembered Sunday as a monarch who used his influence to improve things for this highly impoverished, predominantly Hindu nation which only opened to the outside world a half-century ago.

“ ‘We have, in short, lost a visionary monarch who ably guided his nation through thick and thin,’ The Katmandu Post said in a front-page editorial. ‘It will no doubt be difficult to replace such a leader who had won the people's heart and symbolized Nepal’s move toward a modern era.[8] ’

* * * * *

Another accident, or a slaying?

Princess dies in helicopter crash[9]

THE sister-in-law of the Nepalese king was killed when her private helicopter crashed into into a lake, according to state television.

Princess Preksha's body was pulled from Rara Lake and taken to the capital Kathmandu, Monday. Two others, including a doctor, were rescued and are said to be in a serious condition in hospital. Rescuers are searching for three others.

Preksha was the widow of Dhirendra, the youngest brother of late king Birendra who was among 10 royals killed in the June 1 palace massacre carried out by a drunken crown prince Dipendra.

The helicopter was flying from Nepalgunj when it lost contact with the airport tower. The reason for the crash is not known.

The three missing passengers were identified as the pilot Rabin Kereriya, retired government employee Dan Bahadur Shahi and Iswsor Basnyet.

* * * * *

The Nepalese face several issues, some of which are familiar to Texas lawyers who litigate Slayer’s Rule cases. The application of the Slayer’s Rule to an accidental death, proof of the facts, lack of a criminal conviction, the impact of the Slayer’s Rule on an indirect inheritance,[10] whether a diety is slayed or a diety slays, whether the slayer becomes King or is disqualified, and of course, what court has jurisdiction are issues that might arise in a Nepalese Slayer’s Rule case. If the slayer was 13 instead of 30, there would be an issue of applicability of the rule to a minor. If he is insane or severely retarded, there is a question of applicability to a person who lacked the capacity to intend a killing or understand the implications.

* * * * *

Headlines reveal frequent slayings. In Florida, a minor was tried for taking a pistol to school, aiming, firing, and killing his teacher with a shot to the head. He successfully claimed that the shooting was an accident. A few years back, a pair of brothers in California shot and killed their parents and went on a spending spree that ultimately included paying for their defense on murder charges. Apparently they used their inheritance from their parents for these expenses, and the slayer’s rule was not applied to stop them. In Nepal the victim was a diety. In Texas, one slayer (who was later slayed) was God (or so he said).

“Suspect’s wife speaks out about mistress’ slaying

By FRED RAMOS Valley Morning Star

“HARLINGEN — The wife of the man who killed his mistress Sept. 18 said the mistress died because an Edinburg court mishandled papers to have him committed.

“Mary Carranza said her husband’s mistress, Yolanda Jackson Valdez, died needlessly after Valdez worked to have Gustavo Gonzalez released from jail Sept. 15.

“La Feria police officer Jerry Ramirez shot Gonzalez to death the next day when he tried to escape from police custody at Valley Baptist Medical Center in Harlingen.

“Gonzalez was being held as a suspect in Valdez’s death.

“Carranza had Justice of the Peace Charlie Espinosa, of Edinburg, sign papers ordering that Gonzalez be committed to Tropical Texas Center for Mental Health and Mental Retardation because of his violent behavior and threats of violence.

“The order states that Gonzalez had been previously diagnosed with bipolar disorder.

“‘(He) has episodes of physical aggressiveness, losing sense of reality. At times believes he is god,’ reads the report.

‘Hears the devil talk to him, expresses and has ideas involving death. Made a threat to burn house down.’

“The order, signed April 26, concluded that Gonzalez’s mental condition could continue to "deteriorate" if medical attention was not sought immediately.

“Gonzalez was arrested later in April after the order papers were signed because he set fire to his wife’s home while she was inside.

“Originally, he was charged with attempted murder but 92nd state District Court Judge Eduardo Aparicio reduced the charges to misdemeanor assault.

“But Carranza said Aparicio reduced Gonzalez’s bail on an arson charge Sept. 15, from $50,000 to $25,000, at the urging of Valdez.

“ ‘I had an order to have him committed to MHMR because he had already been making death threats against people,’ said Carranza.

“ ‘The court went against those wishes and they reduced his bond. I had already warned them of the possibilities of him getting out and hurting somebody and she (Valdez) went ahead and got him out and only to her demise because he killed her,’ she said.

“Aparicio did order a competency hearing.

“Under the hearing order, two psychiatrists would have evaluated Gonzalez to determine if he was competent to stand trial.

“However, a competency hearing did not take place because Gonzalez died.

“But Espinosa, who signed the commitment order April 26, said Gonzalez should have been transferred to MHMR in Harlingen immediately after he was released.

“Aparicio said he was unaware that Gonzalez was to be transferred to the mental hospital the moment he was released on bond.

“ ‘That was never brought to the court’s attention. How am I able to find out about something that was never brought to the court’s attention?’ ” asked Aparicio.

“ ‘The paperwork was never brought to the court, to the district courts. It was never brought to the district clerks. It was never presented by the district attorney’s office nor was it ever presented by the defense counsel,’ he said.

“Espinosa said it was Aparacio’s responsibility to make sure the commitment order was executed once he received notice.

“ ‘If the paperwork was in place and they knew about it, yes. But I can’t tell you when the officers — the sheriff’s officers — or the police department got hold of the section 28 (commitment order) ordering them to get him and take him over to MHMR. I can only tell you when I signed it.’

“But Carranza said county officials told her they were aware of the commitment order and stated that once Gonzalez was released, he would be sent immediately to MHMR and not released.

“‘My understanding was that once he was released the order would take effect immediately," said Carranza. "I took the papers to the county personally."

Carranza said county officials told her the commitment papers would be placed in Gonzalez’s arrest folder.

"I was in Minnesota. I was under the impression that he was still in jail," said Carranza.

"I would call periodically to make sure he was there. And when they told me he was released, they told me they were sorry but he bonded out. I was in disbelief," she said.

“She said that by failing to remand Gonzalez to MHMR upon his release, two people died needlessly.

“ ‘Not only did they fail, they put me and my three children at risk,’ ” said Carranza.[11]”

If the mistress’s Will named her slayer as her beneficiary, what effect would the bipolar disorder, or the killing of the slayer, have on the application of the Slayer’s Rule? Yes, life creates interesting situations. When the object of a person’s bounty kills the bountiful person, there are usually some interesting issues.

* * * * *

Consider a situation in which an arsonist Slayer tries to burn only the spouse’s lover, but kills the spouse in error, or tries to burn only the spouse’s lover, but the spouse accidentally dies looking for a dog in the burning house.

Love Triangle Leads To House Fire[12]

A love triangle lead to an early Friday morning house fire, authorities said. The fire broke out shortly after 1:30 a.m. at the home, located near the intersection of Eastwood and Polk near downtown. Fire investigators told News2Houston that a woman allegedly started the blaze after she caught her boyfriend with another woman. Flames and heavy smoke could be seen billowing from the two-story house. No injuries have been reported. A neighbor was arrested after police said he became combative with firefighters who refused to let him inside the burning house to look for his missing dog. The exact cause of the fire is under investigation. The home suffered heavy fire and smoke damage.

* * * * *

Yates

Consider the result under the Slayer’s rule if a mother kills her children, but does it because she is depressed and she decides it might be good for them. Does she inherit from their estates?

* * * * *

Sometimes, a slayer wannabe misses her target and kills herself.

If a person makes a spouse so angry that the spouse “goes airborne,” does the slayer’s rule apply?

Woman runs over husband, dies in car wreck, police say[13]

LUBBOCK, Texas – A woman ran over her husband during an altercation Wednesday, then died when she lost control of her car and crashed into a tree in a rural area just east of Lubbock, police said.

Trina Richardson, 34, died at the crash site in her 1993 Cadillac DeVille, Lubbock Police Sgt. Greg Gregg said.

"She went airborne after crossing a high intersection, then slid sideways before hitting a tree," Gregg said.

Her husband, L.D. Richardson Jr., 39, was taken to Covenant Medical Center in Lubbock with a cut on his head, and a possible broken arm and broken leg, Gregg said.

The altercation apparently began while the two were driving in separate cars. L.D. Richardson got out of his car and began walking toward his wife's car at an intersection when she accelerated into him, Gregg said.

When an officer arrived, Trina Richardson took off, Gregg said. The officer chased her but only got within about a half-mile when she crashed, Gregg said.

The reason for the fight was unclear, but Gregg said the couple had a long history of domestic violence.

"This has been an ongoing feud between those two for years, and there's just no telling with those two," said Gregg, who said he and several other officers have been called to the Richardsons' residence over the years.

* * * * *

Girl's maturity weighed in brother's killing[14]

Hundreds mourn slain 6-year-old Lewisville boy

The question of whether a 15-year-old Lewisville girl should stand trial as an adult in the slaying of her younger brother is complicated by reports of her stunted emotional and mental development, law and psychology experts said.

The girl and her 10-year-old brother are being held at the Denton County Juvenile Detention Center. Police have said the siblings confessed to stabbing 6-year-old Jackson Carr to death behind their Lewisville home.

Funeral services for the 6-year-old boy were Friday in Plano. Hundreds of people attended the ceremony, in which Jackson's uncle described by him as a happy boy who loved to play with toy cars and gave his heart to Jesus at a young age.

Meanwhile, authorities said the cases will be submitted to the district attorney's office next week.

"One of the issues ... is that the defense attorney has to make sure that they put on evidence to make sure the court knows the actual mental age and the developmental level of the child," said professor Ellen Marrus, director of the Southwest Regional Juvenile Defense Center in Houston.

The center provides technical assistance, training and support services to attorneys representing children in delinquency cases.

"You can have a cognitive level that is higher than your developmental level," Dr. Marrus said. "Possible abuse in the home also delays a child's developmental level."

The 15-year-old girl, who is in the seventh grade, had admitted trying to set a Garland elementary school on fire when she was 11 years old, according to public records. A classmate in the girl's sixth-grade geography class said she saw the girl corner another classmate and hold a pair of scissors to his face last year.

"Fire-setting is considered one of the most significant symptoms of mental and behavioral disturbance, and it calls for an immediate and concerted response on the part of the family to get the needed treatment," said Dr. Barbara Rila, a Dallas psychologist. "Aggression with the use of a weapon is not any less serious."

Another indicator of the 15-year-old's maturity is her grade placement, Dr. Rila said, which is two years behind her age.

"A healthy, developmentally on-target adolescent who hadn't had some of the deficits would more likely be certified [as an adult]," she said. "I think there's some room in this case to discuss some of the special needs this child has."

Child Protective Services had investigated four reports of abuse at the Carr home over the last several years. None was substantiated, CPS spokeswoman Marleigh Meisner said.

Another legal issue will be whether confessions by the siblings should be considered. Research done throughout the state shows juvenile confessions to be unreliable, Dr. Marrus said.

That is not widely known among defense attorneys, and confessions are often used as key evidence against juvenile offenders, she said.

Dr. Marrus, who opposes certifying children to stand trial as adults, said it should also be considered that a child does not have the experience to understand the implications of speaking to police.

"They don't understand what's going on, so there's not a connection between the punishment and what they did," Dr. Marrus said.

Other issues facing the family include the likelihood that the younger sibling's defense will rest on blaming the older child. And scrutiny is likely to turn to the parents to explain their children's behavior, Dr. Marrus said.

The legal issues prompted the girl's parents, Michael and Rita Carr, to retain Dallas attorney Dan Hagood. They will face the dilemma of seeking justice for their youngest son's death while ensuring fair treatment of their two remaining children, the attorney said.

"This is a very strange piece of terrain they are on," Mr. Hagood said. "They are in a position where they are going to need to cooperate with both the prosecution and the defense, and cooperate truthfully."

There is no confidentiality privilege between parents and children, as there is between husbands and wives, experts said.

"Parents can be put in a very difficult position of knowing incriminating facts about their kids, and since there is no parent-child privilege, they have to testify," said Frederick Moss, former federal prosecutor and professor of criminal law at Southern Methodist University.

Part of Mr. Hagood's role could be to lobby the district attorney that the 15-year-old girl should receive treatment rather than a severe jail sentence, Mr. Moss said.

"It must be an exquisitely difficult position to be in because they may agree that their kids killed their other child, but they may be in a position where they strongly disagree with the state over what ought to happen to those kids," he said.

Friday, the couple buried Jackson after a quiet, solemn service in Plano. Dozens of white roses adorned his coffin in the funeral home chapel, where hundreds gathered to say goodbye.

Jackson was described by his uncle, Bruce Carr, and by others as a happy boy who gave his heart to Jesus, loved to play with Hot Wheels toy cars and gave unreservedly.

"Right now I picture Jack and Jesus, sitting Indian-style across from each other, rolling Hot Wheels back and forth, playing, laughing and enjoying one another's company," the boy's uncle said.”

* * * * *

Woman arrested in parents' slayings[15]

Father was fingerprint expert, former detective for Fort Worth police

FORT WORTH – Police arrested the daughter of a longtime fingerprint expert Friday and charged her with capital murder in connection with the slaying of her elderly parents.

Loyd Courtney, 75, and his wife, Agnes, 71, were found bludgeoned and stabbed to death in their Fort Worth home in November. Police said they collected blood at the crime scene that led them to arrest the couple's daughter, Deborah Pieringer.

Mrs. Pieringer, a 48-year-old wife and mother, was in the Mansfield City Jail on Friday evening in lieu of $500,000 bail. She did not respond to requests for an interview.

Investigators declined to give a motive for the slaying or comment on their conversations with Mrs. Pieringer.

"It was far from a normal relationship, but there was nothing there to say that anyone could have anticipated this," said Sgt. J.D. Thornton, homicide supervisor. "There were no previous altercations, and nothing led us at the time to suspect her initially."

Mr. Courtney retired as a Fort Worth detective in 1984 and began work as a civilian fingerprint analyst in the Police Department's identification bureau. When he didn't show up for work Nov. 2, his co-workers asked patrol officers to visit his home in the 4900 block of Stadium Drive.

There was no answer at the door and the officers saw the home in disarray through the window. After finding a neighbor with a key, police discovered the couple's bodies.

The Tarrant County medical examiner ruled that the couple died from blunt-force trauma and stab wounds. Police declined to say Friday whether they had been killed at the same time.

Detective Matt Hardy began his investigation by looking for people suspected of committing assaults in the area.

"He did not focus on her [Mrs. Pieringer] solely from the beginning," Sgt. Thornton said. "He interviewed her initially, along with all the family members, as part of the investigation."

Analysts spent four days at the crime scene and recovered what they described as a large amount of evidence. That evidence was sent to a lab, and the DNA report revealing Mrs. Pieringer's blood at the scene was sent to investigators Thursday, police said.

An arrest warrant was issued, and at about 8 a.m. Friday morning, officers arrested Mrs. Pieringer in the 4300 block of Western Center Boulevard while she was driving home, police said.

Capital murder is punishable by life in prison or death. If Mrs. Pieringer is indicted, prosecutors in the Tarrant County district attorney's office will determine whether they will seek the death penalty.

Records show that Mrs. Pieringer does not have a criminal history in Texas.

Although the police investigation is not over, Sgt. Thornton said, he does not expect other suspects to emerge.

"There were some problems [between the Courtneys and their daughter] that had occurred in the past, and we are still trying to examine those," he said, declining to elaborate.

The Courtneys' other daughter could not be reached for comment.

Mr. Courtney had been with the Fort Worth Police Department for more than 50 years and was well-respected.

"His experience, I think, is why most people looked up to him," Sgt. Thornton said.

* * * * *

Texas Law

Texas Slayer’s Rule law dramatically changed in the second half of the 20th Century. Prior to that change, Texas courts obeyed provisions of the Texas constitution and statutes which prevented forfeiture of estates or insurance proceeds except in specified circumstances. After the change, Texas courts gave lip service to the law, while substantively overturning it for one simple reason - the courts did not like the law. The law allowed some people to kill and benefit from their victim’s estate or insurance. Understandably, the court didn’t like that result.

Texas courts adopted a Texas Slayer’s Rule that allows the slayer to receive bare legal title but to lose the use of the property. Texas courts impose a constructive trust to achieve that result. The result is easy to like, although the method is less desirable than simple forfeiture of the estate.

The most troubling aspect of the approach chosen by the Texas courts is that Texas courts pretended that their Slayer’s Rule is consistent with the letter and intent of the statute and constitution. It isn’t. The reality is that the court is trumping the right to receive an inheritance or other benefit. That may be the correct result, but the court doesn’t admit that it is doing that. The early court opinions create the impression that the court was unwilling to own up to what it was doing. If the court is doing the right thing, it should do it openly and honestly. If it has to deceive, maybe it shouldn’t do it.

The court could have followed the law and let the legislature and voters change the constitution and law. That change would have occured. The idea of a slayer inheriting from the victim is repugnant. Changing the law would have been easy and inevitable.

The court could have announced that equity prohibits the slayer from benefiting, and that it would impose a constructive trust to prevent the benefit, despite the constitution and law.

Instead, the court announced that it would impose a constructive trust, but claimed that its action was consistent with the law that provided that the slayer would not forfeit. The result is desirable. The method is intellectually dishonest. The dishonesty also makes the Texas Slayer’s Rule analysis more confusing. Honesty and clarity go hand in hand. Texas lacks that clarity that accompanies honesty, so we deal with what exists.

Texas courts do not use the term “Slayer’s Rule.” They seem to be unfamiliar with the terminology even though is the accepted terminology in America. It is useful terminology, and we use it. Texas has a Slayer’s Rule, even though it does not call it that. The Texas Slayer’s Rule was created by the courts. It is not named or clearly defined. It develops on a case by case basis.

Before examining the Texas cases, we set the scene as it existed before the 1955 case of Pritchett v. Henry. Too often the study of law is the study of the law as it is today without historical perspective. Historical perspective is important. It is very important to a thorough understanding of the Slayer’s Rule.

We turn back the clock 100 years.

In 1897 Professor Ames submitted to the legal profession a monograph discussing the question “Can a murderer acquire title by his crime and keep it?” At that time there were very few cases in which this question had been presented to the courts. Professor Ames suggested three possible answers to his question:

(1) that the murderer takes the property and keeps it;

(2) that the murderer does not take the property;

(3) that the murderer takes the property but holds it upon a constructive trust.

He suggested that it would run counter to the principles of equity to permit the murderer to enrich himself by his crime. On the other hand, he suggested that it would violate the Statute of Wills or statute of distributions to hold that the legal title did not pass to the murderer. He advocated the third view, that ‘the legal title passes to the murderer, but equity will treat him as a constructive trustee of the title because o the unconscionable mode of its acquisition, and compel him to convey it to the heirs of the deceased, exclusive of the murderer.’ ”[16]

Fifty six years later, and two years before the Texas case of Pritchett v. Henry, Atkinson’s Handbook of the Law of Wills[17] described the state of American Slayer’s Rule law.

“Murder of the Ancestor

“When an heir or a distributee feloniously kills the intestate, it seems shocking to allow the former to succeed to the latter’s property. However, in absence of statute, the majority of cases have held that he may. In at least one such decision it appeared that the slaying was for the purpose of obtaining the property. The chief reason assigned for this view is that as the statutes of descent and distribution make no exception for the situation, the courts should not imply one. Some of the opinions also mention constitutional and statutory provisions forbidding forfeitures for crime.[18] There is a strong minority view, denying recovery to one who has killed his ancestor, largely upon the broad ground that one should not be permitted to take advantage of his own wrong. Most of the recent cases take this position. Some of them proceed upon the theory that the murderer takes no legal title to the property, while others assume that legal title passes to him but a trust ex maleficio will be impressed. The procedure may differ according to which of these theories is adopted. However, this distinction ordinarily would make little difference in ultimate effect, except that under the trust theory an innocent purchaser from the murderer would be protected, which would not be true if no title passed to the slayer.[19]

“Theoretically it may be more justifiable to deny recovery to the legatee or devisee who has murdered the testator than in the case of the heir who has killed the intestate. It is conceivable that a court might imply a condition to the will, but refuse to create an exception to the intestate statute. On the other hand the constructive trust doctrine seems equally applicable to the cases of both will and intestacy. In the few decided cases involving the will situation, it is held that the guilty beneficiary is not entitled to the testator’s bounty. It should be noticed, however, that these cases were not decided in jurisdictions which adhere to the majority rule in intestacy cases permitting the heir to take.

“Public sentiment has not regarded with favor the decisions enabling the murderer to inherit his victim’s property. A large number of states have passed statutes to prevent this result. Much of this legislation was brought about by decisions permitting such an heir to take. Unfortunately many of these laws were framed with the facts of a single case in mind. Thus, in some jurisdictions it is provided that the heir who ‘murders’ his ancestor is barred. Under such a statute it has been held that one who is guilty of manslaughter only may take. Again some of the statutes require conviction of the crime to work a forfeiture. In these jurisdictions it is held that if the murderer prevents conviction by suicide, his estate or his heirs are entitled to the property. The statutes are also strictly construed with reference to the sorts of property interests which are forfeited. Unless the particular kind of interest comes clearly within the terms of the legislation the murderer is entitled thereto.

“When the murderer is denied the property of his victim, as is now usually the case either by statute or by decision, what becomes of the property? An Oregon case held that the murderer’s child, who was the grandchild of the slain man, could not take as he was not the heir of his grandfather in the lifetime of the murderer. Inconsistently the same court held later that the deceased’s sister took in a contest with the state claiming by escheat. In effect, these holding work corruption of blood. A better result was reached in a Kentucky case which allowed the grandchild to take as if his parent, the slayer, were dead. Of course the spouse of the murderer, or one who can claim only from the latter, has no right to the estate of the victim.

“Murder of One Joint Tenant by Other Joint Tenant

“In case of a tenancy in common, the killer should neither lose his moiety, nor be entitled to the interest of the slain co-tenant by survivorship. Where the tenancy is joint and there are rights of survivorship, the problem becomes acute. This question is not one of succession, though it is reasonable to expect that a court will follow here its general position on the matter of the slayer’s right to take by descent or will from his victim. However, many of the statutes designed to deny the right in case of succession do not cover the joint tenancy situation, in which case the question must be determined on a non-statutory basis.

“There is a conflict in the few cases dealing with an ordinary joint tenancy; it has been held that the murderer forfeits all interest to the representatives of the victim, and on the other hand he has been given the entire interest as the survivor of the tenancy. Most of the decisions involve a tenancy by the entireties, which cannot ordinarily be terminated by the sole act of either spouse and which under modern law entitles each spouse to half of the income during their joint lifetimes. A variety of results have been reached. It has been held that the murderer is entitled to the entire interest as the survivor, while other cases have awarded half the property to the murderer and half to the heirs of his slain spouse. Most of the entirety cases have applied the doctrine of constructive trust, however. In doing so the courts have usually presumed that the slain spouse would have been the survivor in normal course, or at least have treated the situation as if he would have survived. A New York decision imposed a trust for the entire interest in favor of the representatives of the slain spouse, but this is subject to the objection that his own vested life interest is forfeited for his crime. A more reasonable application of the constructive trust doctrine would be to allow the slayer to retain a half interest for his life, free of the trust which is otherwise imposed in favor of the representatives of the slain spouse.

“Murder of Insured by Beneficiary of Policy

“Both because of the policy against allowing one to take advantage of his own wrong, and because of the principle of insurance law that one cannot recover for a loss which he has intentionally caused, a beneficiary who has murdered the insured cannot recover on the policy. Usually the insurer cannot defeat payment of the policy on this ground and the insured’s personal representative can recover the full amount. By the prevailing and better doctrine the guilty beneficiary is not entitled to share in the proceeds so recovered by the estate though he is one of the distributees. However, there are some cases to the contrary.[20]. . . .

American Slayer’s Rule Concepts

The Slayer is precluded from benefiting whether or not he knows of the benefits he will receive as a result of the death, and regardless of whether these benefits motivated the killing.

If the death is accidental or negligent, but not intentional or criminal, the Slayer’s Rule does not apply.

If the Slayer was so insane that the act is not criminal, the Slayer’s Rule does not apply.

A killing in self defense does not come within the Slayer’s Rule.

Involuntary manslaughter may be outside the Slayer’s Rule but an intentional act constituting manslaughter might fall within the Rule, depending on the intent and nature of the act.

The Slayer’s Rule applies if the act is committed. A criminal conviction is generally not required, although some statutes require conviction. Proof is made as in civil cases generally.

The Slayer’s Rule applies to the enhancement of the Slayer’s interest in property. Thus, a Slayer may not enjoy a future interest which is contingent upon the death of the victim.

The Slayer’s Rule applies when a life insurance beneficiary kills the insured. The life insurance Slayer’s Rule may be different from the probate slayer’s rule.

The Slayer’s Rule applies even if there is no alternative beneficiary, and the benefits escheat to the state.

* * * * *

The Texas Slayer’s Rule

Pritchett began the modern era of the Texas Slayer’s Rule. Activist judges did not like the result of previous adherence to the constitutional and statutory law so they adopted the constructive trust fiction. They gave lip service to the law while achieving the opposite result. They prevented the Slayer from benefiting from the death. In 1955, World War II was over, the nation was prosperous and at peace, gasoline, sugar, sliced white bread, plastic, automobiles and babies were plentiful, and the “modern view” of law was in vogue. In Pritchett, the court adopted the “modern view” of doing what the court thought was best instead of following the law. The end justified the means.

Pritchett v. Henry 287 S.W.2d 546 (Tex.Civ.App. - Beaumont 1955)

“Howard Pritchett and his wife, Clyda Pritchett, the appellants, filed their suit against . . . Percy B. Henry, and certain life insurance companies; they alleged that they are the parents of Melba Henry, who had been the wife of appellee Percy B. Henry; that on or about January 8, 1955 Percy B. Henry shot and killed his wife, Melba Henry, unlawfully and illegally killing and murdering her in Houston, Harris County, Texas; they further alleged that on said date of the alleged killing there was in existence the will of Melba Henry and that after her death such will was admitted to probate in the Probate Court of Harris County, Texas, and that said Percy B. Henry is named as beneficiary in said will. They further alleged that . . . there were in existence several policies of life insurance insuring the life of Melba Henry and the said Percy B. Henry was the beneficiary in said life insurance policies. They further alleged that they were the next of kin of the deceased, Melba Henry, after the appellee Percy B. Henry, and prayed the court to forfeit the interests of the appellee Henry in all policies of life insurance by virtue of Article 21.23 of the Insurance Code. . . . .

“They also prayed the court to declare the will of Melba Henry, deceased, inoperative as to any of the terms thereof which make Percy B. Henry beneficiary and also to declare and impress upon the property passing by inheritance from Melba Henry, deceased, to Percy B. Henry a constructive trust for the benefit of the appellants as the heirs of the said Melba Henry, deceased, other than Percy B. Henry.

“They also alleged that the appellee, Percy B. Henry, had been indicted by the Harris County Grand Jury for the murder of his wife, Melba Henry, the daughter of the appellants.

“They also alleged an action in tort against Percy B. Henry for the wrongful death of Melba Henry.

“The appellee answered by plea in abatement, alleging that the first and third counts of the original petition filed by the appellants failed in their entirety to allege a cause of action upon which judgment might be awarded to appellants, as a matter of law. These two counts related to the causes of action alleged other than the pleading as to the proceeds of the life insurance policies on the life of Melba Henry, deceased.

“The trial court, upon a hearing of the pleas in abatement, sustained the contentions of the appellee and dismissed the cause of action of the appellants as to all matters alleged except those involving the proceeds of the life insurance policies. By stipulation between the parties the suit involving the insurance proceeds was severed from the other causes of action pleaded and no appeal is taken from the court's order or judgment in regard to the proceeds of the life insurance policies. The appellants, however, have perfected their appeal from the order of the court sustaining the plea in abatement. In their brief appellants make no point and present no authority concerning the court's action in sustaining the plea in abatement as to their third count, the tort action for wrongful death. The trial court's action in that respect is affirmed.

“This appeal squarely presents for the first time, insofar as we have been able to find from the cases reported in Texas, the law question whether in this state a person who willfully and unlawfully kills another may take title to property as an heir or legatee of his victim and retain it free of a constructive trust sought to be impressed upon such property by law for the benefit of the victim's heirs at law other than the killer.

“The appellee contends that the question has long been settled in Texas under the holding in the case of Hill v. Noland, Tex.Civ.App.[21] In that case, by the Texarkana Court of Civil Appeals, in 1912, the court held that our statutes provide that upon dissolution of the marriage relation by death all property belonging to the community estate of the husband and wife shall go to the survivor should there be no children or their descendants; that the article in plain and unambiguous language designates the person to whom the estate shall descend upon death and that there is neither condition nor exception debarring or forfeiting the estate or the right of succession to the wife or husband; that as the rule of inheritance is explicit and imperative, the courts would not be warranted in reading into the statute a clause disinheriting a survivor for the crime of murdering the deceased spouse. The opinion further states that in such facts, that is, where the survivor had murdered the deceased spouse, it is the intestate law alone that casts the estate and right of succession to the wife, and this law is absolute and peremptory. Writ of error was denied by the Supreme Court.

“We do not consider this authority as the final expression of our Supreme Court on this question. In Greer v. Franklin Life Ins. Co.,[22] by the Supreme Court, in 1949, the opinion by Justice Garwood referred to the case of Hill v. Noland, supra, and stated, ‘in that case, incidentally, the more modern view of imposing a constructive trust upon property inherited by a murderer from his victim, for the benefit of the heirs other than the murderer, was evidently not suggested or considered.’ This decision did not involve directly the question under consideration here, but was concerned with the application of the statute which eliminates the interest of the beneficiary in a life insurance policy where the beneficiary willfully brings about the death of the insured. We look upon it, however, as a statement by our Supreme Court that it inclines to the more modern view of imposing a constructive trust upon the property inherited by a murderer from his victim.

“The decision in the case of Pope v. Garrett,[23] by the Supreme Court, in an opinion by the late Justice Smedley, has fully convinced us that the law in Texas now is in keeping with such a more modern view, and that the law will impress a trust upon the property of Melba Henry, deceased, which passed to Percy B. Henry, either by inheritance or as a beneficiary in her will, if the proof is sufficient to sustain the appellants’ allegation that he willfully and unlawfully caused her death.

“In Pope v. Garrett, supra, the facts are extraordinary and were such as to present broadly the question of whether or not the law will impress a constructive trust upon property inherited by an heir of a deceased person when such person, by his own fraudulent or unlawful act, would otherwise benefit from his own wrong doing. In that case Carrie Simons, a few days before her death, had her will prepared leaving all of her property to Claytonia Garrett, who was not related to her. The will was brought to her and read to her in the presence of witnesses she had summoned; she declared it to be her last will and as she prepared to sign her name to the will, two of her heirs by physical force or by creating a disturbance prevented her from carrying out her intention to execute the will. Shortly thereafter she lapsed into a semi-comatose condition and died three days later. The court held that a trust would be impressed upon the property of Carrie Simons in favor of Claytonia Garrett, and that such trust would be impressed not only upon the interests inherited by those who participated in the acts of violence that prevented the execution of the will in favor of Claytonia Garrett, but that it also should be impressed upon the interests inherited by all the heirs of Carrie Simons. The court held this to be a case which is a typical one for the intervention of equity to prevent a wrongdoer, who by his fraud or otherwise wrongful act has acquired title to property, from retaining and enjoying the beneficial interest therein, by impressing a constructive trust upon the property in favor of the one who is truly and equitably entitled to the same. The court cites and quotes from numerous cases and texts which enunciate this rule. Two of the authorities cited and quoted from are Scott on Trusts, Vol. 3, Sec. 489.4 and Restatement of the Law of Restitution, Sec. 184.

“We also rely on the following from Scott on Trusts, Section 492: ‘Acquisition of Property by Murder.’ In 1897 Professor James Barr Ames submitted to the legal profession a monograph discussing the question, ‘Can a murderer acquire title by his crime and keep it?’ Professor Ames suggested three possible answers to his question: (1) that the murderer takes the property and keeps it; (2) that the murderer does not take the property; (3) that the murder takes the property but holds it upon a constructive trust. He advocated the third view, that legal title passes to the murderer but equity will treat him as a constructive trustee of the title because of the unconscionable mode of its acquisition, and compel him to convey it to the heirs of the deceased, exclusive of the murderer. Scott adopts the view that Professor Ames' answer is a sound one, as a matter of policy and as a logical application of a well-settled principle. He says that in the absence of a statute otherwise providing, it would seem that the legal title to the property should pass to the murderer and he is chargeable as constructive trustee. This seems to be the case where the Statute of Wills and the Statute of Descent and Distribution is silent on the matter and there is no other statute with respect to it. Where the Statute of Wills and the Statute of Descent and Distribution make no provision as to the effect of murder of the decedent by the legatee or heir, the property passes under the will or by intestacy to him. It is then that the equitable principle as to unjust enrichment becomes applicable. That principle is as applicable where the title to property is acquired by murder as it is where the title is acquired by fraud, duress or undue influence. By imposing a constructive trust upon the murderer, the court is not making an exception to the provisions of the statutes, but is merely compelling a murderer to surrender the profits of his crime and thus preventing his unjust enrichment. In some cases the courts have permitted the murderer to take and keep the property of the decedent because they thought it would be a violation of the provisions of the Statute of Wills or the Statute of Descent and Distribution, to deprive him of the property. These courts, the writer says, have failed to see that in order to deprive a murderer of the property it is not necessary to make an exception to the statute; all that is necessary is to apply the well-settled equitable principle under which a constructive trust is imposed upon one who acquires property through his own wrong.

“The text also discusses that same principle as applied to murder by spouse. It is pointed out that at common law the widow of a decedent is entitled to a life interest in one-third of the land owned by her husband at any time during coverture, and that prior to his death she had an inchoate right of dower in the land, of which she cannot be deprived by his will or by a conveyance inter vivos by him without her consent. It is argued that since she has this interest during his lifetime, she should not be deprived of it even though she murders him. It would seem, however, that she should not be permitted to profit by the murder of her husband. If she had predeceased him she would have taken no interest in the land. By her felonious act she had made it certain that she survived him. It would seem, therefore, that she should be precluded from the enjoyment of her dower interest. The same consideration should apply with respect to the husband's right of curtesy where he murders his wife. By statute it is frequently provided that the surviving spouse shall have a certain share of the property of the deceased spouse if the latter dies intestate. Under such statutes it is clear that there is the same reason for imposing a constructive trust upon one spouse who murders the other as where the heir or next of kin murders him.[24] We think the same reasoning applies to the question of whether this principle shall be applied under our statute of community survivorship. The surviving spouse should not be permitted to keep or enjoy the property of the community, since by his willful act he has made certain that he survives his deceased spouse and he should be precluded from keeping and enjoying property which he takes as a survivor in community.

“The appellee urges here the holding in the case of Hill v. Noland,[25] which is mentioned above. He says that our statutes in regard to Wills and Descent and Distribution are silent as to any exceptions thereto and that what the appellants are urging on this appeal is an amendment to the statutes of the State of Texas to provide an exception to our statutes of Wills and Descent and Distribution. He suggests also that the appellants should address their pleas to the legislature of the State of Texas and not to this court. We do not agree. We quote the following from the opinion in Pope v. Garrett:[26] ‘The argument is often made that the imposition of a constructive trust in a case like this contravenes or circumvents the statute of descent and distribution, the statute of wills, the statute of frauds, or particularly a statute which prohibits the creation of a trust unless it is declared by an instrument in writing. It is generally held, however, that the constructive trust is not within such statutes or is an exception to them. It is the creature of equity. It does not arise out of the parol agreement of the parties. It is imposed irrespective of and even contrary to the intention of the parties. Resort is had to it in order that a statute enacted for the purpose of preventing fraud may not be used as an instrument for perpetrating or protecting a fraud. (Citing cases.) In this case Claytonia Garrett does not acquire title through the will. The trust does not owe its validity to the will. The statute of descent and distribution is untouched. The legal title passed to the heirs of Carrie Simons when she died intestate, but equity deals with the holder of the legal title for the wrong done in preventing the execution of the will and impresses a trust on the property in favor of the one who is in good conscience entitled to it.’

“In keeping with the principles announced above, in this case we hold that the petition of the appellants alleged a cause of action in that it alleged a wrongful and unlawful killing of Melba Henry by . . . Percy B. Henry; it alleged that he was a beneficiary in her will, that they had no children and as next of kin he would inherit her property as her heir even if the will was invalid; it alleged that Melba Henry was their daughter and that they were her next of kin; and it properly prayed for the imposition of a constructive trust in favor of the appellants, the parents of the deceased. We hold that it properly alleged that legal title to the property of Melba Henry, deceased, passed to . . . Percy B. Henry, either by inheritance or as a beneficiary in her will, and that the law imposes a constructive trust thereon for the benefit of the appellants. The judgment below is reversed and judgment here rendered, overruling the plea in abatement of the appellee as to appellants' first count in their petition. The cause is remanded to the district court for trial upon the merits.”

* * * * *

Bounds is the key Texas case on the slayer’s rule. It is a Texas Supreme Court opinion covering numerous issues. It addresses the Slayer’s Rule for both insurance and probate assets. It involved a misdemeanor nolo contendre plea to negligent homicide, and defenses of self defense and unintentional killing. The slayer was the only witness. The slayer is the only one who knows what was in the slayer’s mind.

In Bounds,[27] the Texas Supreme Court adopts Pritchett’s “modern view” and approves the use of a constructive trust to trump the constitutional and statutory inheritance rights and rights to insurance death benefits. The reason is simple. The court doesn’t like the result if the constitution and law is followed, so it adopts a “modern” legal fiction to overcome the constitution and law. A court which sometimes claims that it will not tolerate form over substance uses form over substance to achieve the result it desires. Instead of suggesting changes in the Texas constitution and law, the Texas Supreme Court effectively nullifies the law while denying that it is doing so. Those who believe courts should reach the result they like and announce that the law supports that result will find Bounds comforting. Those who believe judges should apply the law, but not make the law, will find Bounds troubling. Regardless of your judicial philosophy, it is clear that the court thought Bounds was very modern, as viewed in the 1950s, and even in 1978. Of course, what Texas courts thought of as “modern” was the view advocated by Professor Ames in 1897, 81 years before Bounds, and presumably before any party, attorney, or jurist in Bounds was born. That made it only slightly more “modern” than the constitution and less “modern” than the 1912 case of Hill v. Noland.[28]

Bounds v. Caudle 560 S.W.2d 925 (Tex. 1978)

“This is an appeal from two separate judgments resulting from a consolidated jury trial of an appeal from a probate proceeding and a tort action. The suits resulted from the death by gunshot of Mrs. Robbie Bounds. The children of Mrs. Bounds, Kerry Tyrone Caudle and Cheryl Kay Caudle, alleged and the jury found that their stepfather, Dr. L. D. Bounds, intentionally and wrongfully caused their mother's death. The trial court rendered judgment in the probate proceeding which admitted the will of Mrs. Bounds to probate, but disqualified Dr. Bounds to serve as Independent Executor of the estate. Judgment was rendered in the tort action whereby a constructive trust in favor of the children was imposed on all of Mrs. Bounds' property which would have passed to Dr. Bounds under her will, and they were granted the proceeds of a life insurance policy on Mrs. Bounds' life payable to Dr. Bounds.[29] The two children were also awarded the damages found by the jury for their claim under Art. 4651 et seq. for the wrongful death of their mother. The court of civil appeals affirmed the judgment in the probate proceeding, and it upheld the imposition of the constructive trust and the award of the insurance proceeds. It reversed and rendered a take-nothing judgment on the claim for wrongful death.[30] We reverse the judgments of the lower courts and remand the cause to the trial court for a new trial.

“Robbie Caudle and Dr. Bounds were married in 1962. No children were born of this marriage; however, both had been married once before and each had two children by their prior marriages. The shooting ended a nine-year marriage marked by discord and even some physical abuse. On the night of March 1, 1971, Mrs. Bounds was shot twice and killed in the bedroom of the family home in Corpus Christi. Only the deceased and Dr. Bounds were present at the time of the shooting. The evidence is conflicting about whether Dr. Bounds intentionally shot her or whether she was unintentionally shot while he was attempting to wrest the revolver from her grasp. Dr. Bounds was indicted for murder, but was permitted to plead nolo contendere and, upon this plea, he was convicted of negligent homicide in the first degree, a misdemeanor. . . .

BOUNDS APPLICATION

“The application of Dr. Bounds urges that there is no legal basis to support the imposition of the constructive trust or the forfeiture of the life insurance proceeds. He also asserts that there were several procedural errors in the trial of the case which require a reversal of the judgment.

“Dr. Bounds contends that before a constructive trust can be imposed there must be a conviction and sentence for wilfully bringing about the death of the insured. He urges that since he was convicted only of the offense of negligent homicide, a constructive trust should not have been imposed. This contention is largely based on Sec. 41(d) of the Probate Code which provides in part:

Convicted Persons and Suicide. No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice, in wilfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended . . .

“Dr. Bounds asserts the Probate Code takes precedence over Art. 21.23 of the Insurance Code which provides:

The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the nearest relative of the insured shall receive such insurance.

“Although the conviction for negligent homicide implies that the killing was committed without intent, it is settled law that the judgment in the criminal case was not binding[31] upon the court in the civil proceeding.[32] This rule is particularly applicable here where the conviction was based upon plea bargaining.[33]

“Texas courts have taken the position that the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if the beneficiary wilfully and wrongfully caused the death of the deceased.[34] The trust is a creature of equity and does not contravene constitutional and statutory prohibitions against forfeiture because title to the property does actually pass to the killer.[35] The trust operates to transfer the equitable title to the trust beneficiaries. Although we have found no case which considered the relationship of Sec. 41(d) of the Probate Code to the common law rule which imposes a constructive trust, it was pointed out in Greer that Art. 21.23 should be held to restate the common law rule which would bar the beneficiary of a life insurance policy from profiting from his own wrong.[36]

“We therefore conclude that the imposition of a common law constructive trust in a situation such as presented here is not inconsistent with the legislative intent behind Sec. 41(d) which requires an outright forfeiture in the case of a convicted killer.[37]

“The jury here found: (1) that Dr. Bounds shot and killed Mrs. Bounds; (2) that the action of Dr. Bounds in shooting and killing Mrs. Bounds was intentional; and (3) that such action was wrongful. These jury findings fully support the judgment of the trial court forfeiting his interest in the insurance policy on the life of Mrs. Bounds and imposing a constructive trust on the property devised to him under her will.

“Dr. Bounds has also complained in his application for writ of error that the trial court erred in overruling his objections to the submission of Special Issue No. 3 which reads as follows:

Do you find from a preponderance of the evidence that the action of the Defendant, L. D. Bounds, in shooting and killing Robbie M. Bounds, if you have found that he did, was wrongful?

“Dr. Bounds timely objected to the submission of this issue in that the court failed to define the word "wrongful" and further that it did not instruct the jury as to the elements of self-defense. In connection with this objection, Dr. Bounds submitted a requested instruction wherein he defined "self-defense" in substantially the form suggested by this Court in Grieger v. Vega.[38] No question has been raised concerning the correctness of the requested instruction, but the court of civil appeals found that there was no evidence to raise the issue of self-defense. The court concluded that since Dr. Bounds testified that he did not "intend" to shoot Mrs. Bounds, the ultimate issue was accidental death and not self-defense.

“In support of its holding that the defense of accidental death and self-defense cannot co-exist, the court of civil appeals cited Whitehead v. State[39] and Sias v. State.[40] 3[41] The rule in these two cases is best explained by the description in Sias of the Whitehead holding as follows:

In the relatively recent case of Whitehead v. State, . . . this Court . . . held it was not error to refuse to give a charge on self-defense where the defendant testified that the killing was an accident and he had nothing to fear from the deceased.

“It is significant that in both Sias and Whitehead the fatal weapon was in the hands of the accused and there was no testimony in either case that the defendant was placed in fear of imminent death or great bodily harm at the hands of the deceased. It is such fear which is the essential element of self-defense, not intent to kill.[42]

“Here the testimony of Dr. Bounds is that when he and Mrs. Bounds arrived home the argument which had begun at the dinner club was continuing and that when he came out of the bathroom, she was standing in the bedroom pointing the revolver at him. He further testified that he was able to grab the gun and, while struggling with her for possession of the gun, she was shot.

“He testified:

I told you I don't know where my hands were at the time that we were scuffling over the gun. I know I had at least one hand on the gun, because that's what I was trying to control, the gun, because I didn't want to get shot. I didn't want her to get shot, but it happened anyway.

“Also:

Q You said you were going to be able to handle him (sic). You pulled the gun around this way.

A I told you I grabbed the gun and diverted it away from me. You're doing this. I'm not doing that.

Q You were pointing the gun at her?

A I was getting it away from me. That was my main . . .

Q Getting it away from you?

A Yes.

Q And it went towards her?

A It did when it went over.

Q Were you trying to discharge the gun in her direction?

A I was trying to protect myself.

“This evidence, although refuted and rebutted by circumstantial evidence, clearly is some evidence that Mrs. Bounds was shot during the scuffle which ensued when Dr. Bounds undertook to disarm her in order to keep from being shot. This testimony raises the issue of self-defense as well as that of accidental death. We do not find the two defenses inconsistent under the facts in this case. The submission of both have been upheld in criminal cases under somewhat similar facts.[43]

“We are required to apply the "no evidence" test in determining whether the requested instruction was required to be submitted to the jury.[44] As a result, we must consider only the evidence and the inferences that may be reasonably drawn therefrom which are favorable to Dr. Bounds' contention that he was acting in self-defense, and to disregard all of the evidence and inferences to the contrary. Under this test, the testimony of Dr. Bounds does raise the issue that he was acting in self-defense at the time that Mrs. Bounds was shot and killed. Furthermore, the issue was properly raised by his trial amendment and was timely requested by him in his instruction to be given with Special Issue No. 3. The trial court therefore erred in refusing to give this instruction. This error mandates a reversal of the judgment and remand for a new trial. . . .

* * * * *

Some evidence may not be enough. The only person who knows the truth may not be believed. The result may depend on the credibility of the slayer’s testimony and whether the slayer is liked by the judge or jury. We see that Bounds did not fare well before a second jury. He lost on retrial.

Bounds v. Caudle 611 S.W.2d 685 (Tex.App. - Corpus Christi 1980)

“This is the retrial . . . under the instructions of the Texas Supreme Court in Bounds v. Caudle.[45] . . .

“. . . Trial was before a jury which found the following: (1) that L. D. Bounds shot and killed Robbie M. Bounds; (2) that such shooting was intentional; (3) that such shooting was wrongful. . .

“The judgments of the trial court are affirmed.

* * * * *

Ford involves an easy slayer’s rule case as far as guilt is concerned in that Ford was convicted of murdering his wife. The interesting issues are the applicability of the slayer’s rule to homestead rights, community property, and assets owned jointly by the slayer and the slayed prior to the slaying.

Ford v. Long 713 S.W.2d 798 (Tex.App. - Tyler 1986)

“This is a partition suit. The facts of the case are undisputed. Appellant Paul Ford (Ford) killed his wife, was convicted of murder, and is presently in prison. At the time of the murder, Ford and his wife were in the process of getting a divorce. Ford's wife left a will naming her sister, appellee Gwendolyn Long (Long), as sole beneficiary of her estate. Long sued Ford for partition of a 30.4-acre tract of land (formerly jointly owned by Ford and his wife), including a house and other permanent improvements thereon; partition of money, debts, and an automobile; and for possession of certain furniture, which had been the separate property of Ford's wife. Ford defended by claiming a homestead right in the real property and by claiming the right to use the furniture, as exempt property, for the rest of his life. The parties agreed on a division of the remaining property. The trial court rendered judgment reflecting the parties' agreement as to the partition of the money, debts, and automobile. Furthermore, the court imposed a constructive trust in favor of Long, granting Long's application for partition of the real estate and possession of the furniture. The court ordered that the real estate be sold and the proceeds divided equally between the parties. We affirm.

“Ford brings three points of error, asserting that the trial court erred in concluding that (1) because Ford was convicted of the murder of his wife, he forfeited all homestead rights in the 30.4-acre tract of land; (2) Long is entitled to partition; and (3) Ford is not entitled to the use and benefit of the furniture for life. In sum, Ford contests the trial court's decision to impose a constructive trust in favor of Long.

“A constructive trust is based upon the equitable principle that a person shall not be permitted to profit from his own wrong.[46]

“Ford argues that because "no conviction shall work corruption of blood or forfeiture of estate," Tex. Const. art. I, § 21, the trial court's imposition of a constructive trust amounts to an unconstitutional penalty for his crime. This argument is without merit.[47] Imposition of a constructive trust does not deprive a murderer of property lawfully acquired by him, but merely prevents the murderer from acquiring a beneficial interest through his unlawful act.[48] Here, had Ford predeceased his wife, he would have taken no homestead interest in the land. Since by his willful act Ford made certain his survival, he should be precluded from keeping and enjoying property he takes as a survivor in the community.[49]

“We find that the trial court properly imposed a constructive trust. . . .

* * * * *

Ovalle explores application of the slayer’s rule to the family allowance, allowance in lieu of exempt property, exempt personal property, and homestead rights. Ovalle includes a self defense claim, a justification claim, and a lack of willfulness defense. It also contains an erroneous collateral estoppel analysis, which is underlined.

Ovalle v. Ovalle 604 S.W.2d 526 (Tex.Civ.App. 1980)

“This is an appeal by the Administrator of the Estate of Roberto Ovalle, Sr. from final order of the Probate Court awarding Anita Ovalle (widow of Roberto): 1) $4500.00 family allowance; 2) $500.00 allowance in lieu of exempt property; 3) furniture, fixtures, tools, personalty, two automobiles; and 4) right of occupancy of the homestead.

“Roberto Ovalle, Sr. died on December 31, 1977 leaving five children and a wife, not the mother of his children. His brother Raul G. Ovalle (Appellant) was appointed Administrator of his Estate. His widow Anita (Appellee) made application to the probate court for 1) family allowance; 2) exempt property allowance; and 3) furniture, automobile, personalty and use of the parties' homestead.

“The Administrator and deceased's children opposed such applications alleging: 1) Anita intentionally killed the decedent; and 2) that because of Anita's action in wrongfully bringing about the death of decedent she should not be allowed to collect any proceeds from his estate.

“Applications were also made for family allowance and exempt property allowance on behalf of Roberto Ovalle, Jr., minor child of the deceased.

“Trial was to the court which rendered final order decreeing: Anita Ovalle recover 1) $4500.00 family allowance; 2) $500.00 allowance in lieu of exempt property; 3) exempt personal property (furniture, fixtures, tools, two automobiles); and 4) right of occupancy of the homestead.

“Such order further decreed a family allowance of $2500.00 and a $500.00 exempt property allowance, to the minor child Roberto, Jr.

“The trial court filed Findings of Fact finding among other matters that "In causing the death of her husband, Anita Ovalle was justified in using deadly force against her husband, because she reasonably believed that such force was immediately necessary to protect herself against the use by Roberto Ovalle of unlawful force".

“Appellant appeals on. . . . 2 main contentions:

“ ‘1) The trial court erred in finding that appellee was justified in using deadly force against her husband because such finding is against the great weight and preponderance of the evidence.

“ ‘2) The trial court erred in concluding as matters of law that appellee should be awarded statutory allowances and rights from her husband's estate, because she intentionally killed her husband without justification’.

“There are fundamental maxims of the common law which say: ‘No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are adopted by public policy, and have their foundation in universal law administered in all civilized countries’[50]

“Laspy[51] holds that one may qualify as a widow within the purview of statute authorizing payment of widow's allowance from the estate of deceased only if she has been reduced to widowhood by the ordinary and usual vicissitudes of life and not by her own felonious act which created that condition; and further that a wife who feloniously kills her husband will not be permitted to take from his estate property and allowances provided by statute for surviving widows.

“Texas courts hold that the law imposes a constructive trust upon property of a deceased which passed either by inheritance or by will if the beneficiary wilfully and wrongfully caused the death of the deceased; and further that the legislative intent behind Probate Code, Sec. 41(d) requires outright forfeiture[52] of all inheritance and benefits in the case of a convicted killer.[53]

“Appellee was indicted for murder of her husband, but convicted of voluntary manslaughter, sentenced to 10 years probation as a result of plea bargaining. The judgment in a criminal case is not binding upon the court in a civil proceeding; and this rule is particularly applicable where the conviction is based upon plea bargaining.[54] [55]

“Thus, the primary issue in this case is whether the trial court's finding that Anita Ovalle was justified in using deadly force against her husband is against the great weight and preponderance of the evidence.

“Appellee was 41 years old, had attended high school, business college and Austin Community College and was employed by the City of Austin in a secretarial position. The deceased was 45 years old, an Air Force retiree, and was with the Austin Police Department assigned as a security guard at Brackenridge Hospital. Appellee and deceased were married on April 14, 1975, but had lived together since 1961. Appellee was previously married and has a grown son; the deceased was previously married and has 5 children including a minor son.

“On December 31, 1971 deceased got off work at 3:30 P.M. and arrived home at approximately 4 P.M. Appellee put the deceased's gun away in the drawer of a night stand; then went outside and helped deceased wash the cars; watched TV; ate supper about 6:30 P.M.; deceased had several drinks during the period from 4 P.M. to 8 P.M. About 8 P.M. appellee and deceased fussed about "the possibility of him having another woman live in our house and also the possibility of him dating other women"; "I tried to talk him out of the way he was, you know, saying you know, that he wanted to do such things. And I kept on telling him that that wasn't right"; about 8:30 P.M. a telephone inquiry came with regard to whether appellee and deceased were going to visit his family that night; there was friction at this point as to whether they would visit deceased's family or go to the NCO Club; deceased left the TV room to get a drink; appellee followed him; deceased told appellee to "leave me alone"; deceased then went into the bathroom and shut the door; appellee pushed the door open, stuck her foot in the door; deceased shoved appellee; slammed the door on her face; appellee scratched deceased; deceased went back in the bathroom, came back out and said to appellee "You should never have done that, you are going to regret it"; deceased went back in the bathroom; came out and said to appellee "I'm sorry"; deceased went back in the bathroom; appellee went to the master bedroom and got the pistol and stood in the doorway with it holding it with both hands; deceased came out of the bathroom coming toward appellee down the hall; appellee fired the gun four times into deceased's head, chest and abdomen; appellee remembers the first shot only; she testified she was in fear of her life or serious bodily harm at that point; that she was "scared to death"; that after that she called the police; in the past deceased had beaten up appellee but she never reported same to anyone or went to a doctor; deceased was intoxicated; only deceased and appellee were present; thereafter that night appellee gave a statement to the police in which she admitted shooting deceased.

“Section 9.31 Self Defense Texas Penal Code provides in pertinent part:

“"(a) Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

“"(b) The use of force against another is not justified:

“(1) In response to verbal provocation alone;

“(2) * * *

“(3) * * *

“(4) If the actor provoked the other's use or attempted use of unlawful force, unless:

(A) The actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor.

“"(c) * * *

“"(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, * * * ".

“Section 9.32 Deadly Force in Defense of Person provides in pertinent part:

“"A person is justified in using deadly force against another:

“"(1) if he would be justified in using force against the other under Section 9.31 of this code;

“"(2) if a reasonable person in the actor's situation would not have retreated; and

“"(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of * * * murder * * * ".

“If deceased's actions amounted to unlawful force or threat of unlawful force, he afterwards said he was sorry; it was thereafter appellee got the gun and stood in the doorway of the bedroom; appellee had more than adequate time to have left the house and retreated; and appellee fired four shots into deceased-anyone of which shots the pathologist medical examiner of Travis County testified would have been fatal.

“We think that from the evidence as a whole the trial court's finding that appellee was justified in using deadly force against her husband because she reasonably believed that such force was immediately necessary to protect herself against the use by her husband of unlawful force, is against the great weight and preponderance of the evidence. . . . the judgment awarding benefits to appellee is reversed and remanded for a new trial.”

* * * * *

Thompson is a “slayer who slayed the slayer” case in which the slayer killed his father and later killed himself. The issues included whether the slayer actually killed his father, whether the slayer’s suicide nullifies the implementation of the slayer’s rule, and someone who never met either the deceased or the slayer may testify as an “expert” that the slayer in fact did, or did not, slay his father, with his “expert” opinion based on brief conversations with other people about the slayer, review of the slayer’s high school transcript, and review of a description of the slayer’s “growth and development” by the slayer’s mother, along with listening to audio tapes made by the slayer after the slaying. Note the suicide and lack of a conviction.

Thompson v. Mayes 707 S.W.2d 951 (Tex.App. - Eastland 1986)

“This is an appeal from a suit to impose a constructive trust on the assets which passed to Donald Marshall Thompson (Don Thompson) under the will of his father, Jo B. Thompson. The other devisee under Jo B. Thompson's will is his sister, Leonette Mayes. On December 19, 1984, Mrs. Mayes brought this suit alleging that a constructive trust should be imposed upon the assets that Don Thompson received under his father's will. Don Thompson committed suicide on January 16, 1985, and Nancy Thompson (Don Thompson's mother and the former wife of Jo B. Thompson) was substituted as defendant both individually and as independent executrix under her son's will. The jury found that . . . Don Thompson "intentionally and wrongfully caused the death of Jo B. Thompson by shooting him with a gun." A judgment imposing the constructive trust was rendered for plaintiff. Defendant appeals. We affirm.

“Defendant, Mrs. Thompson, argues in her first point of error that the trial court erred in overruling her motion for judgment non obstante veredicto because this suit was barred by limitations. We disagree.

“Defendant contends that the two-year limitation period prescribed in Article 5526(5) 1[56] applies in this case. The applicable portions of this statute provide:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

* * *

* * *

“5. Action for injury done to the person of another where death ensued from such injury; and the cause of action shall be considered as having accrued at the death of the party injured.

“A suit to impose a constructive trust is not an "[a]ction for injury done to the person of another"; rather, it is an action in equity to prevent unjust enrichment of a person who has wrongfully acquired property.[57] When the proven circumstances show that the holder of the legal title may not in good conscience retain the beneficial interest, then equity converts him into a trustee.[58]

“In her second and third points of error, defendant contends that plaintiff's suit was barred because: (1) as a matter of law, plaintiff waived her right to file this suit for constructive trust by entering into an "Agreement as to Finality of Judgment" 2[59] in a prior suit to probate the will of Jo B. Thompson; and (2) as a result of her entering into the aforementioned agreement, plaintiff had unclean hands which was a bar to her suit in equity.

“The "Agreement as to Finality of Judgment" was signed by Don Thompson and plaintiff. The agreement was made a part of the record in Cause No. 16,230, which was a suit to probate Jo B. Thompson's will by bill of review in the 266th District Court of Erath County. The judgment probating the will and the agreement as to its finality were signed December 19, 1984. The instant case was filed later that same day.

“Nowhere in the aforementioned agreement is there a reference to either party's right to file a subsequent lawsuit involving matters not related to the probate of Jo B. Thompson's will. The agreement contains no language waiving the right to seek the establishment of a constructive trust on the assets received under the will. The agreement waives the right to appeal and makes the probate judgment final. Defendant's second point of error is overruled.

“With regard to the unclean hands contention, the legal title of the assets passed to Don Thompson by virtue of his father's will. Plaintiff agreed that the judgment probating the will would become final and that she would not seek to disturb the judgment probating the will by appeal or otherwise. She has not sought to do so. Plaintiff has employed an equitable proceeding against the holder of the legal title for the wrong done and has impressed "a trust on the property in favor of the one who was in good conscience entitled to it."[60] It has not been shown that plaintiff's hands were unclean. Defendant's third point of error is overruled.

“In her fourth point of error, defendant argues that plaintiff was not entitled to have a constructive trust imposed under the facts and circumstances of this case. Defendant contends that the provisions of TEX.CONST. art. I, sec. 21 and TEX.PROB. CODE sec. 41(d) provide that not even murder or suicide would have caused Don Thompson to forfeit his share of his father's estate. Therefore, since Don Thompson was not indicted for his father's murder and since the evidence linking him to his father's death is circumstantial, the imposition of a constructive trust in this case would be an inappropriate expansion of this doctrine. We disagree.

“The jury found that Don Thompson intentionally and wrongfully caused the death of his father. There is no challenge to the sufficiency of the evidence to support that finding. Therefore, the fact that the jury's verdict was based on circumstantial evidence is not relevant to the propriety of imposition of the constructive trust.

“Application of the settled law in this State to this set of facts permits the imposition of a constructive trust. As stated by the court in Bounds v. Caudle:[61]

“Texas courts have taken the position that the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if the beneficiary willfully and wrongfully caused the death of the deceased.

“Defendant's fourth point of error is overruled.

“In Point of Error No. 5, defendant contends that plaintiff's case is barred by res judicata and by the doctrine of merger and bar. She argues that the constructive trust cause of action should have been included in the bill of review suit to probate Jo B. Thompson's will 3[62] and that the judgment probating the will distributed the estate to Don Thompson and plaintiff; therefore, the prior suit was a final disposition of the assets, and it barred any subsequent suits concerning those assets.

“The Texas Probate Code expressly provides that district courts have jurisdiction over suits to apply constructive trusts.[63] Defendant cites the case of Abbott Laboratories v. Gravis,[64] as support for her argument that any action which could have been brought in the proceeding to probate the will should have been litigated in that proceeding. Abbott is clearly distinguishable. In Abbott, the plaintiff's original suit was based on negligence in preparing and furnishing a drug to the plaintiff. In a subsequent suit, which the court held was barred by res judicata, the plaintiff pled products liability as the theory of recovery for the same alleged injuries arising from the same incident involving the drug. The court stated at page 642 that:

[A] party cannot relitigate matters which he might have interposed, but failed to do so, in an action between the same parties or their privies in reference to the same subject matter.

“A suit to probate a will does not involve the ‘same subject matter’ as a suit to impose a constructive trust.

“The bill of review suit to probate the will dealt with the authenticity of the will and proof that the testator was dead. The instant suit involves the question of whether Don Thompson intentionally and wrongfully caused his father's death. The theory of recovery, the operative facts, and the measure of recovery are all different in this case. Therefore, this suit is not barred by res judicata.[65]

“In Point of Error No. 6, defendant contends that the trial court abused its discretion in excluding the testimony of a psychologist, Dr. Frank Wichern, regarding his opinion as to Don Thompson's non-involvement in his father's disappearance. We disagree.

“Defendant's attorney revealed to the court that he intended to ask Dr. Wichern his opinion concerning whether or not Don Thompson "may have" killed his father. Plaintiff's attorney took Dr. Wichern on voir dire to determine the basis of any opinion proffered by the doctor. Dr. Wichern testified that he had no personal knowledge of or contact with either Jo B. Thompson or Don Thompson. After Don Thompson's suicide, Dr. Wichern talked to six people for less than one hour each concerning their relationships with Don Thompson. Some of these people did not have a relationship with Don Thompson at the time of his father's disappearance. One person had neither known nor had any personal contact with Don Thompson. Dr. Wichern reviewed both Don Thompson's high school transcript and a summary prepared by his mother, the defendant, of his growth and development. Dr. Wichern listened to the tapes made by Don Thompson before he shot himself. The only other knowledge that Dr. Wichern had of Jo B. Thompson's disappearance was what he had read in The Dallas Morning News. Dr. Wichern testified that he compiled all of this information into a "psychological autopsy" in an effort to determine Don Thompson's state of mind at the time of his father's disappearance.

“Jo B. Thompson was last seen more than two years prior to this trial. Defendant's attorney revealed to the court that he intended to ask Dr. Wichern his opinion as to Don Thompson's state of mind on the day his father disappeared. This opinion was based on information gathered after Don Thompson's suicide. Dr. Wichern testified that psychological autopsies have been used by psychologists in forming opinions as to the state of mind of alleged suicide victims at the time of their death. In those cases, the issue was whether the person committed suicide, not whether the decedent may have killed another person two years earlier.

“Plaintiff's attorney inquired about the purpose, acceptance, and reliability of an opinion based on a psychological autopsy when used to determine a person's state of mind at a prior time. Pertinent portions of Dr. Wichern's testimony are:

“Q. Has [a psychological autopsy] ever been used to hypothesize what the state of mind was at a prior time?

“A. I have no personal knowledge of that, I suspect it could be.

“Q. That's what you're attempting to do in this case; is that not correct?

“A. Yes, that's right.

“Q. You're not aware that it has ever been attempted before, though?

“A. Not to my knowledge--personal knowledge.

“At the conclusion of the voir dire, plaintiff's attorney objected to the admission of Dr. Wichern's testimony on the grounds that "there is not an underlying technical or scientific principle that it is sufficiently reliable for his testimony to be of assistance to the jury" and the testimony was not permitted by Rule 702 of the Texas Rules of Evidence. Under TEX.R.EVID. 702, an expert's testimony should not be admitted if it would be more likely to prejudice or confuse than to assist the jury. Therefore, an expert's opinion should be based on an existing body of scientific, technical, or other specialized knowledge that is pertinent to the facts in issue. The underlying technical or scientific principle should be sufficiently reliable for the testimony of the witness to be of assistance to the jury.[66]

“The trial judge has broad discretion in determining issues concerning the general admissibility of evidence.[67] This rule is consistent with prior Texas law regarding the trial court's preliminary determination of fact as to the admissibility of expert testimony; therefore, the trial court's decision will not be overruled unless an abuse of discretion is shown.[68] The trial court did not abuse its discretion in refusing to admit this testimony, especially after the expert conceded that he did not know of any other instance where a psychological autopsy had been used in this manner.

“Moreover, the issue to be decided in this case is whether Don Thompson intentionally and wrongfully caused the death of his father. Under the facts of this case, the jury did not need the assistance of scientific, technical, or specialized knowledge to decide this question. The admission of this testimony would not have assisted the jury in making inferences regarding the fact issue more effectively than the jury could do so unaided.[69] Defendant's sixth point of error is overruled.

“Defendant argues in Point of Error No. 7 that the trial court erred in excluding Don Thompson's alleged suicide tapes. She argues that the tapes were admissible under either TEX.R.EVID. 803(3), 804(b)(2), or 804(b)(3)(B), or under all three.

“Rule 803(3) is an exception to the hearsay rule which permits the admission of a "statement of the declarant's then existing state of mind." Don Thompson's state of mind more than two years after the date his father disappeared is not material to any issue involved in this case. Therefore, even if the tapes technically fall within an exception to the hearsay rule, they still are not admissible because they are not relevant.[70] .

“These tapes were also not admissible as a dying declaration under Rule 804(b)(2). Under this rule, dying declarations which concern the cause or the circumstances of what the declarant believed to be his impending death are admissible as exceptions to the hearsay rule. The cause or circumstances of Don Thompson's death were not relevant to this case, and the tapes were properly excluded. TEX.R.EVID. 401, 402.

“Defendant also contends that the tapes were admissible under TEX.R.EVID. 804(b)(3). 4[71] This rule concerns statements of personal or family history and excepts certain of these statements from the hearsay prohibition. Defendant contends that the tapes are admissible because the statements on the tapes concern the death of a person to whom Don Thompson was related by blood, i.e., his father. We disagree.

“On the portions of the tapes quoted in defendant's brief, Don Thompson denies any involvement in or knowledge of his father's disappearance. Consequently, the proffered statements do not concern the "death" of Jo B. Thompson and were properly excluded.

“Defendant next contends that Don Thompson's responses to questions propounded to him by the examiner during a polygraph examination were improperly excluded from evidence. Defendant again relies on Rule 804(b)(3) as basis for the admission of this testimony.

“The answers to the questions asked by the polygraph examiner indicate that Don Thompson did not know any of the details about his father's disappearance or did not even know if his father was dead. Therefore, these statements do not concern the "death" of his father and, in fact, tend to show that Don Thompson could not make any statement about his father's death because he did not know anything about it. Therefore, the statements were properly excluded.

“In her final point of error, defendant urges that the trial court abused its discretion in refusing to grant her motion to transfer venue under TEX.R.CIV.P. 257 and 258. She contends that under Rule 258 the controverting affidavit submitted by plaintiff is insufficient to attack the affidavit that she filed previously in support of her motion. We disagree.

“Plaintiff's affiant, Mr. Oxford, swore in his affidavit that:

“I do not believe the means of knowledge whereby JOHN B. FOUTS, HOSEA WARREN, MARY A. WESTBROOK and NANCY J. THOMPSON have formed their opinions concerning a prejudice against DONALD MARSHALL THOMPSON is accurate. In my opinion his estate and its beneficiaries can obtain a fair and impartial trial on the matters in controversy in Erath County, Texas.

“These statements are sufficient to raise and frame the issue of whether or not an impartial trial could be had in Erath County.[72]

“Therefore, the question now becomes whether or not the trial judge, after considering the evidence produced at the hearing, abused his discretion in refusing to transfer venue. The evidence produced by defendant at the hearing was controverted by plaintiff's evidence. Both sides produced competent testimony to support their position. We find no abuse of discretion in refusing to transfer the case.[73] All points of error are overruled.

“The judgment of the trial court is affirmed.

* * * * *

Sanderson v. Sanderson 591 S.W.2d 623 (Tex.Civ.App. - Austin 1979)

In Sanderson, the court of appeals can’t resist showing off. Justice Shannon shows mastery of vocabulary and procedure, tells the lawyers how to try the case, and sends it back to see if they can follow instructions. Sanderson is another slayer slays the slayer case. With all the slaying, it can be a challenge to prove what happened, especially for those who are not as adept as Justice Shannon, as the opinion points out. Will they do better the next time after the court of appeals tells them how to do it? We note that Sanderson is a second attempt by the court, with the first opinion withdrawn. Apparently the court of appeals also needed two tries to get it right, although they don’t tell us what they found in need of revision in their first opinion.

“SHANNON, Justice.

“The opinion of this Court handed down on November 14, 1979, is withdrawn, and the following opinion replaces it.

“Appellees filed suit in the district court of San Saba County seeking judgment for damages for the wrongful death of Ivan Glenn Sanderson and for the imposition of a constructive trust upon that part of the estate of Glenn that would have passed to appellants by the law of descent and distribution. After trial to a jury, the district court entered judgment imposing the constructive trust. We will reverse the judgment and remand the cause for a new trial.

“Glenn Sanderson and John Turner Sanderson were half-brothers. Both men died in San Saba County of gunshot wounds on January 23, 1976. Glenn died intestate and John Turner died testate. The parties are accounted for in the margin.1[74]

“Appellee's contention was that John Turner rose up against Glenn his brother and slew him with two shotgun blasts. John Turner was discovered the same day in his house, dead from a rifle shot that passed under the chin and through the head. Appellees claimed that John Turner, in a fit of remorse, took his own life.

“Because John Turner's right to share in Glenn's estate was allegedly burdened by the primal curse, appellees argued that equity should not permit title to pass to John Turner, his heirs, legatees or beneficiaries. Instead, appellees contended that the court should impress upon that share a constructive trust for the benefit of the other heirs of Glenn Sanderson, namely themselves.

“The court's charge contained four special issues. The jury answered the initial issue that on January 23, 1976, John Turner wrongfully shot and killed Glenn. By their answers to the other issues the jury refused to find compensatory damages and refused to assess exemplary damages. Appellees filed no cross-points challenging the jury's refusal to find damages.

“The district court's judgment imposed a constructive trust upon the estate of Glenn to the extent of the interest that passed to John Turner ". . . and/or his heirs at law and next of kin . . ." The judgment further directed Glennetta Sanderson, individually and in her capacity as independent executrix of the estate of John Turner, and her children to convey to appellees and Wilma Lou Smith their interest in the estate of Glenn.

“Appellants attack the judgment by several points of error. Three points attack the factual cornerstone of the judgment, the jury's finding that John Turner killed his brother. Appellants claim that the finding is supported by no evidence or, alternatively, by insufficient evidence.

“By entry of the judgment the district court necessarily must have concluded that because neither the slayer nor his heirs, legatees, or beneficiaries might profit by fratricide, a constructive trust should be imposed upon their interest in the estate of the fallen brother. Should there be no support or insufficient support in the evidence for the jury's finding, the judgment must fall without regard to the law questions concerning the imposition of the constructive trust.

“In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the jury's finding and consider only the facts and circumstances that tend to support those findings.[75] In reviewing factual sufficiency points of error, the court considers all of the evidence.[76]

“The district court included the following instruction in the charge: ‘A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by witnesses who saw the act done or heard the words spoken or by documentary evidence. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.’ There was no objection to the instruction.

“The body of Glenn Sanderson was found face-down in his field alongside a line of open post holes during the late afternoon of January 23, 1976. The scalp, skull, and brain exhibited massive injuries caused by two shotgun blasts. Two shotgun shells and wadding were found at the scene of the shooting. There was testimony that the second blast was made at close range. There was no direct evidence as to the identity of the assassin.

“Earlier in the same afternoon, the corpse of John Turner Sanderson was discovered in the washroom of his house, lying on the right side with a rifle to the side. The entry point of the bullet was under the chin. There was gunpowder about the edges of the wound under the chin. The testimony was that the character of gunshot wound involved was consistent with suicide.

“George Shelby Sanderson testified that John Turner and his brother Glenn ‘. . . did not get along all right.’ Harvey Reeves, a justice of the peace of San Saba County, testified that John Turner's son, Thomas, told him that his father and his uncle Glenn had disagreed recently and may have traded ‘a lick or two.’ Because Thomas was a party to the suit, his statement to the justice of the peace was admissible as an admission against interest, an exception to the hearsay rule.[77]

“Appellees attempted to prove that Glenn was slain with a shotgun owned by John Turner. Sheriff Brantley Barker testified that someone brought him a twelve gauge shotgun, said to have been found in John Turner’s pickup truck. Barker did not identify who delivered the firearm to him.

“The sheriff took the shotgun to a hardware store in San Saba where John Turner reportedly had taken his shotgun for repairs in the past. The sheriff testified that the serial number of the shotgun in his possession corresponded with the serial number in the records of the hardware store. Appellees called no one from the hardware store to prove up the store records and to prove that in the past John Turner had brought in the shotgun for repairs.

“Appellees proved that the shotgun, together with the shells and wadding found near Glenn Sanderson’s corpse, was delivered by the sheriff to a Texas Ranger who took those items for testing to the Ballistics Crime Laboratory of the Department of Public Safety in Austin. After the usual tests and comparisons were made at the laboratory, the supervisor of the laboratory, Fred Reimer, testified that he was of the opinion the shells found near Glenn Sanderson’s corpse were fired from the shotgun allegedly owned by John Turner Sanderson.

“After the shotgun was returned from Austin to San Saba, the sheriff testified that he ‘gave it to the family.’ As to the identity of the recipient of the shotgun the sheriff testified only that, ‘I’m not sure which one (of the Sandersons) but it was some of the family that pickup (sic) them up.’

“One problem with appellees’ proof is that the sheriff’s testimony concerning the discovery of the shotgun in John Turner’s pickup truck is hearsay evidence of no probative force or effect. Also hearsay is the sheriff's evidence that John Turner had previously taken his shotgun to the hardware store for repairs. An employee of the store could have been called to prove up that fact and also prove up the records showing the serial number of the weapon repaired. No objection was made to the admission of the hearsay evidence, but none was necessary since hearsay evidence is without probative value whether objected to or not.[78]

“Because there was no probative evidence that the shotgun submitted for testing at the ballistics laboratory was owned by John Turner, the opinions of Fred Reimer were of no probative value in connecting John Turner with the slaying.

“Texas Ranger Bob Favor was permitted to testify without objection that based upon his ‘investigation’ he was of the opinion that ‘. . . Ivan Glenn Sanderson met his death at the hands of John Turner Sanderson.’ Likewise, Sheriff Barker testified without objection that premised upon his investigation he had formed the opinion that the death of Glenn Sanderson was caused by a gunshot wound from a shotgun owned by John Turner Sanderson.

“Appellants urge that we give no effect to Favor's and Barker's opinion evidence in our review of the record because unsupported conclusions of a witness do not constitute evidence of probative force and will not support a jury finding even when admitted without objection.[79] We agree.

“If appellants had objected, the witnesses' opinions would not have been admitted. Favor and Barker were not in any better position than were the jurors to draw inferences and conclusions from the facts presented. None of the admissible facts presented by Favor and Barker tended to prove that John Turner killed Glenn, and, accordingly, their opinions based upon these facts do not constitute probative evidence.[80]

“Considering only the evidence most favorable to the jury's finding and disregarding entirely what is opposed to it or is contradictory[81] we have concluded that the jury’s answer was supported by the following evidence: Relations between John Turner and his brother Glenn were not amicable. In fact, they had ‘traded licks’ a few days before January 23, 1976. Both men were found dead on January 23, 1976. Glenn had been shot twice with a twelve gauge shotgun. The shotgun was given back to some member of the Sanderson family. John Turner was shot with his rifle under conditions consistent with suicide.

“Although we acknowledge that the question poses some difficulty, we have concluded that the jury’s answer that John Turner killed his brother is at least supported by some evidence. Accordingly, appellants’ ‘no evidence’ point of error is overruled.

“In considering the insufficient point of error this Court has reviewed the entire record,[82] and this Court is of the opinion that the evidence is insufficient to support that answer. Appellants' ‘insufficient evidence’ point of error is granted.

“Appellees filed no cross-points with respect to the failure of the jury to answer favorably the special issues submitting damages pursuant to their wrongful death theory. Accordingly, that part of the judgment was not appealed to this Court and, of course, is now final. The judgment imposing the constructive trust is reversed and the cause is remanded for new trial.

* * * * *

Parks explores a slayer’s forfeiture of an inheritance received from the estate of a person other than the victim. The slayer murdered his parents. Later, his maternal grandfather died. His grandfather’s estate included the grandfather’s inheritance from the victim. Can the slayer inherit the interest of his grandfather in the slayer’s victim’s estate?

Parks v. Dumas 321 S.W.2d 653 (Tex.Civ.App. -Ft. Worth 1959)

“It was stipulated by the parties hereto that on February 16, 1957, the defendant, James Clifford Parks, willfully, voluntarily and unlawfully killed and murdered his parents, Luther E. and Eunice Parks, by shooting them with a gun. The defendant was convicted of the felony offense of murdering his mother, Eunice, and received a twenty year sentence in the penitentiary. He is now serving that sentence. Both parents died intestate.

“This suit was filed for the purpose of imposing a constructive trust on the community estate of the parents of defendant. Plaintiffs were the brothers of Luther Parks (and, except for defendant, his sole surviving heirs) and the father and sister of Eunice Parks (her sole surviving heirs, except for defendant).

“The court found that in equity a constructive trust should be imposed upon all the property belonging to the estates of Luther and Eunice Parks in favor of their lawful heirs, other than defendant, and judgment was entered for plaintiffs accordingly.

“The defendant appealed.

“The courts in the various states have reached different results as to whether a murderer can acquire and retain title to property as a result of his crime. Some hold the murderer takes and retains title to the property, others that he does not take title to the property, while others hold that the murderer takes title to the property, but holds it in constructive trust for the proper heirs.[83] The courts which apply the constructive trust theory hold that the legal title passes to the murderer either by intestacy or by will, but that equity will treat him as constructive trustee of such property because of the unconscionable mode of its acquisition.[84]

“In 1912 the Texarkana Court of Civil Appeals in Hill v. Noland,[85] held that the fact that the wife had murdered her husband for the sole purpose of investing herself with the title of his property did not forfeit her right thereto. Defendant contends the above case should control in the instant appeal. “We do not agree. In Greer v. Franklin Life Ins. Co.[86] the Supreme Court in referring to Hill v. Noland said: 'In that case, incidentally, the more modern view of imposing a constructive trust upon property inherited by a murderer from his victim, for the benefit of the heirs other than the murderer, was evidently not suggested or considered.'

“In Pritchett v. Henry,[87] the Beaumont Court of Civil Appeals had before it the identical question we have in the instant case, namely: ‘Whether * * * a person who willfully and unlawfully kills another may take title as an heir or legatee of his victim and retain it free of a constructive trust sought to be impressed upon such property by law for the benefit of the victim's heirs at law other than the killer?’ The court held that the killer acquired legal title to the property of his victim, but that the law imposed a constructive trust thereon for the heirs other than the killer.

“In the above case the court cited with approval Scott on Trusts, Sec. 492, wherein the author states: 'Where the Statute of Wills and the Statute of Descent and Distribution make no provision as to the effect of murder of the decedent by the legatee or heir, the property passes under the will or by intestacy to him. It is then that the equitable principle as to unjust enrichment becomes applicable. * * * By imposing a constructive trust upon the murderer, the court is not making an exception to the provisions of the statutes, but is merely compelling a murderer to surrender the profits of his crime and thus preventing his unjust enrichment. * * * in order to deprive a murderer of the property it is not necessary to make an exception to the statute; all that is necessary is to apply the well-settled equitable principle under which a constructive trust is imposed upon one who acquires property through his own wrong.'

“The Supreme Court in Pope v. Garrett[88] said: ‘The argument is often made that the imposition of a constructive trust * * * contravenes or circumvents the statute of descent and distribution, * * * or particularly a statute which prohibits the creation of a trust unless it is declared by an instrument in writing. It is generally held, however, that the constructive trust is not within such statutes or is an exception to them. It is the creature of equity.’

“In our opinion the imposition of a constructive trust does not violate the statutes of descent and distribution. It is a creature of equity. A constructive trust is imposed in a situation like the one before us so that the statutes of descent and distribution may not be used as an instrument for perpetrating or protecting a fraud. Certainly the statutes should not be used as a vehicle to acquire property through parenticide.

“We hold that, though defendant inherited the property of his parents, the law imposed a constructive trust thereon in favor of the heirs other than defendant.

“Defendant claims the court erred in divesting defendant of all legal title and interest in and to the estate of Jim Dumas. Jim Dumas was the grandfather or defendant and father of Eunice Parks. He died pending trial, leaving as his sole heirs a daughter, Lucille Botts, and defendant.

“The judgment purported to deal only with the property belonging to the estates of Luther and Eunice Parks. It is conceded by defendant that no property of the estate of Dumas is affected by the judgment other than whatever right Dumas had in the estate of Eunice Parks. Had not defendant murdered his mother, Dumas would not have had any interest in her estate.

“It is a well settled general rule that if one person obtains the legal title to property in an unconscientious manner, so that he cannot retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.[89]

“Defendant indirectly acquired title by inheritance to the so-called ‘Dumas’ interest by murdering his mother. The method of acquisition was in an ‘unconscientious manner.’ Equity will impose a constructive trust thereon in favor of those who are in good conscience entitled to it.

“Judgment affirmed.

Concurring opinion of Chief Justice Massey

“The writer readily agreed with the author of the opinion in this case upon the main question controlling the greater part of the property in controversy. However, my decision upon the matter of whether or not the appellant might have inherited some interest in the property upon the death of his grandfather occasioned certain difficulties.

“I became convinced that the holdings were correct after reading Bogert on Trusts and Trustees, p. 8 et seq., ‘Constructive Trusts’, sec. 472, ‘Theory of Creation’, and the neighboring sections. In the cited section it is stated: ‘If A (person in position of the grandfather in this case) has died after the wrongful obtaining of his property, his cause of action to get the constructive trust passes as realty or personalty, dependent on the character of the res involved. If the defendant is wrongfully holding real property, A’s heirs or devisees take the right to obtain the constructive trust; if the interest inequitably held by the defendant is personalty, A’s personal representatives or legatees succeed to A’s right to impress a constructive trust * * *.’

“The appellant inherited an interest in the property of his grandfather, if any the latter had.[90] However, he could not have inherited any part of the cause of action to impress a constructive trust. That cause of action was against himself. Therefore all rights in and to the cause of action were bound to have passed to other heirs of the grandfather. Such cause of action was unimpaired and was to impress a constructive trust as to the full interest of such deceased in the property. By the judgment entered (subsequent to the death of said deceased) all beneficial interest in the property was taken from the appellant as of the date the judgment became final. There is no necessity to dwell here upon other situations possible to be hypothesized and exciting to contemplate for they are not at issue.[91] If any error is existent it is not one such as would entitle the appellant to overthrow the judgment rendered.

* * * * *

Dopps is an interesting case that arose after the mother of minor children killed the father. A guardianship was established and the slayer’s right to benefit was challenged. The guardian contracted for a lawyer on a contingent fee basis. The issues are guardianship and legal fee issues that apply to any class of assets to which the slayer’s rule applies, although the case happens to involve life insurance proceeds.

Dopps v. Dopps 636 S.W.2d 723 Tex.App. - Corpus Christi 1982)

“This is an appeal from the appointment by the County Court of Cameron County of Bruce Dopps as guardian of the estates of his three grandchildren; Richard, Camille and Cari. The appellant is Jeri Collette Dopps, mother of the children. . . . We affirm.

“The tragic events which gave rise to this proceeding are as follows. Until February 27, 1980, Richard and Collette Dopps and their three children resided in the home they owned in Cameron County. That evening, Richard Dopps was killed. He died intestate. Approximately one week later, Collette Dopps was arrested for the murder of her husband. When she was released on bond, she brought the children to Houston to stay with an aunt and then returned to Cameron County to await her trial. By the end of March, Collette decided to send the children to live with her parents in South Dakota. The children have lived in South Dakota with their maternal grandparents, the Duncans (not parties to the instant suit), since that time.

“When Bruce Dopps heard of Collette's involvement in his son's death, he called an attorney to institute guardianship proceedings. On behalf of the children, he filed a wrongful death action against Collette in Cameron County and a petition with the County Court to be appointed temporary guardian of their estates. On April 24, 1980, the court granted his request. Collette Dopps filed a motion opposing the appointment on April 29, 1980. On May 13, 1980, the Duncans filed a motion in the Circuit Court of South Dakota for appointment as the guardians of the persons and estates of their daughter's children, which that court granted.

“In October of 1980, Collette Dopps was convicted of voluntary manslaughter and sentenced to serve 20 years in prison. On May 5, 1981, the County Court of Cameron County held a hearing on Mr. Dopps' application for permanent guardianship of the childrens' estates in Texas and Collette's motion to remove him as guardian.

“At the hearing, Mr. Dopps testified that he is 68 years-old and lives in Wichita, Kansas. He described his efforts to care for the estate including paying the bills and an attempt to sell assets and preparation of tax returns. Mr. Dopps stated that his purpose in seeking the guardianship was to preserve the property for the children. On cross-examination, Mr. Dopps admitted that he entered into a contingent fee arrangement with his attorney, which authorizes the attorney to retain one-third of any amount collected on behalf of the grandchildren in the wrongful death action and from his son's life insurance proceeds. The policies name Collette as primary beneficiary and the children as contingent beneficiaries. Bruce Dopps explained that he anticipated difficulty in collecting the life insurance proceeds for the children because of the possibility of litigation. Mr. Dopps also testified that besides the half interest in the house in Cameron County, which the children will inherit from their father's estate and the life insurance proceeds, the remaining assets in the childrens' estates are some stocks and social security benefits, which are now being paid to the Duncans for the support of the children. The record contains no evidence of any part of the children's estates in a county in Texas other than Cameron County. . . .

“[A]ppellant first attacks the trial court's finding that it had jurisdiction of the case. . . .

“Subject matter jurisdiction over probate matters including the appointment of guardians is vested in the County Court by Tex.Const.Art. V, § 16. Appellant does not dispute subject matter jurisdiction but apparently argues that the County Court of Cameron county lacks jurisdiction over the property involved here.

“In that regard, the appellant urges in her brief that this suit properly belongs in the South Dakota courts. We note, however, that jurisdiction attaches upon the filing of suit.[92] Once jurisdiction is lawfully and properly acquired, no subsequent fact or event may defeat it.[93] When through an exercise of discretion they deem it proper, Texas courts may recognize prior proceedings in other states as a matter of comity.[94] In this case the prior proceeding occurred in Texas, therefore, there was no need to consider deferring to the South Dakota court as a matter of comity.

“The appellant admits in her brief that the children have an interest in the house in Cameron County, because Tex.Prob.Code § 45 provides that children are entitled to half of the community property upon the death of one spouse. That interest vested in the children as the heirs at law of Richard Dopps by the law of descent and distribution.[95]

“If we were to accept appellant's argument that the County Court of Cameron County lacked jurisdiction to appoint a guardian, there would be no court in Texas which could appoint a guardian to care for the childrens' property within this state. This position is contrary to authority which holds that the state of Texas has the power to control the property of non-resident minors situated within its borders through guardians appointed for their estates.[96] Thus, the trial court had jurisdiction. The first point of error is overruled.

“. . . [P]oints of error challenge the finding by the trial court that the appointment of the appellee as guardian was in the best interest of the children. Appellant points to Mr. Dopps' execution of a contingent fee agreement authorizing his attorney to retain one-third of the life insurance proceeds collected as evidence that Mr. Dopps' appointment was not in the best interests of the children. She brings to this court's attention the filing of an interpleader by Prudential in Federal District Court in South Dakota admitting responsibility to pay the children and argues that there was no need to enter an agreement for recovery of this fund. Since the insurance company did not admit this liability until after the hearing on Mr. Dopps' appointment as guardian, we do not consider it. We may only look at those facts presented to the County Court to determine whether that court erred.

“Tex.Prob.Code § 233 authorizes representatives of estates to enter contingent fee contracts to recover claims that they in good faith believe exist.[97] . Tex.Ins.Code Art. 21.23 provides that the interest of a beneficiary be forfeited when the beneficiary willfully brings about the death of the insured. The statute further provides that, in such cases, the nearest relative shall receive the insurance proceeds. Tex.Prob.Code § 41(d) provides that beneficiaries of life insurance policies, who are convicted and sentenced in willfully bringing about the death of insureds, forfeit their interests in the insurance proceeds. In Bounds v. Caudle[98] the Supreme Court considered the effect of a conviction of negligent homicide upon a beneficiary's attempt to collect insurance. The surviving spouse argued that a conviction for negligent homicide implied that the killing was committed without intent and that the forfeiture statutes should not have applied. The Supreme Court held that the judgment in the criminal case was not binding upon the court in the civil proceeding. Bounds v. Caudle, supra at 928.

“In the case before us, there was no conviction of willful killing at the time Mr. Dopps entered the agreement with his attorney. At the time it would have been reasonable to anticipate a contest for the proceeds between Mrs. Dopps as primary beneficiary and the children as contingent beneficiaries and nearest relatives. As Bounds makes clear, the forfeiture rules are not automatic. The representative of the children's estate may have found it necessary to bring a civil action to collect the insurance proceeds and in so doing would have been permitted to make a reasonable arrangement for the payment of attorney's fees. Of course, by the date of the hearing on the guardianship appointment, Mrs. Dopps had been convicted of voluntary manslaughter and it was rather clear that the forfeiture provision would operate. Notwithstanding the reasonableness and good faith of the agreement when Mr. Dopps entered into it, if as an automatic result of making the appointment, the County Court had caused the childrens' estates to lose one-third of the insurance proceeds needlessly, its finding that the appointment is in the best interest of the children would be unsupported. But, before any attorney's fees are actually paid, the guardian must obtain the approval of the court after producing proof that the fees were reasonable and were necessarily incurred. Tex.Prob.Code § 242. Thus, the appointment of Mr. Dopps did not automatically cause the loss of one-third of the life insurance proceeds to the childrens' estates. The trial court's finding that the appointment of Mr. Dopps as guardian is in the best interest of the children is supported by some evidence and by sufficient evidence.

“The judgment of the trial court is affirmed.

* * * * *

There are sensible cases, and there are Looney cases. Gordy is a Looney case. Looney was the slayer and Howe was the victim. Howe was Looney’s mother. Looney gave birth to an illigitimate child who was named Looney at birth. Looney, the infant, was given up for adoption by Looney, her mother. The adoptive parent’s changed the name of the Looney infant. We don’t know the new name. Actually, we don’t know where the infant is, or how to contact her. The adoptive parents refused to participate in the proceedings, but their lawyer appeared to represent the infant, although the infant hadn’t been served. The majority says it can’t be tried without the participation of the infant. The dissent claims that the case can never be tried after the court’s decision. The opinion was issued after a rehearing. Rehearings are not uncommon in Texas probate litigation.

Gordy v. Alexander 550 S.W.2d 146 Tex.App. - Amarillo 1977)

“Our opinion issued on March 23, 1977, is withdrawn, and the following opinion, issued subsequently to appellees' motion for rehearing, is substituted therefor.

“Jean Reece Gordy brought this suit to impose a constructive trust on the assets of the estate of Evelyn Howe, deceased. The district court sustained the defendant's plea in abatement and dismissed the suit. In her appeal, Gordy has challenged the propriety of the trial court's action in dismissing the cause and rendering final judgment that she take nothing in this suit. Reversed and remanded.

“The cause was not heard on its merits and the facts were not fully developed. However, the record discloses the following matters:

“It is alleged in Plaintiffs' First Amended Original Petition that Mrs. Evelyn Howe was murdered on June 13, 1973. Such petition further alleged that Mrs. Howe's daughter, Marilyn Looney, was involved in the murder; however, there has been no adjudication concerning such allegation. Mrs. Howe's will left all her property in trust for Looney. The will also provided that Mrs. Howe's property should pass free of trust to plaintiff Jean Gordy, her sister, if Looney predeceased her mother.

“The will was admitted to probate on July 9, 1973. On March 12, 1975, Gordy filed her action to impose a constructive trust upon the assets which were being held in trust for Looney's benefit. Looney and the trustee of the testamentary trust interposed their "Plea in Abatement." The tenor of this plea was that Shellie Looney, Marilyn's illegitimate daughter, was the murder victim's sole heir and is eligible to inherit the estate. They argued that Shellie was the only person with standing to impose the constructive trust and that failure to join her was fatal to Gordy's case. The trial court agreed, and on June 18, 1975, it dismissed the case for failure to join an indispensable party. Gordy moved to reinstate the case and on July 11, 1975, her motion was granted. In repleading her case, Gordy attempted to join Shellie, two-and-one-half years old, as a plaintiff. Her task was complicated by the fact that Shellie had been adopted away from Looney. The adoptive parents declined the opportunity to become involved in the lawsuit, but permitted their attorney to appear and represent Shellie in the lawsuit. After concluding that Gordy had failed in her attempt to join Shellie, the trial court, on November 25, 1975, sustained Looney's "Plea in Abatement" (except as to the contention that the cause should be heard in the probate court) and dismissed Gordy's suit and rendered a final take-nothing judgment against her; however, the cause was dismissed as to Shellie without prejudice to prosecute any claim she may assert. Gordy's appeal raises two points of error which attack the actions by the trial court in failing to consider Shellie as a party and in dismissing Gordy's cause without prejudice. Preliminarily to passing upon Gordy's points of error, we shall consider two jurisdictional attacks raised by Looney's two cross points.

“In her first cross point, Looney has argued that this court is without jurisdiction over this appeal. When it reinstated Gordy's action on July 11, 1975, the trial court did so by announcing its decision in open court. Looney has argued that this oral order was ineffective to reinstate the cause and that the thirty day period for appeal lapsed without appeal being perfected. In our opinion, the trial court's announcement constituted a rendition of its decree reinstating the cause.[99] Also judgment nunc pro tunc regarding reinstatement of the case was entered and included in a supplemental transcript filed with this court.[100] In view of the foregoing, the trial court retained jurisdiction over the cause and Gordy's first cross point is overruled.

“Looney's second cross point attacks the subject matter jurisdiction of the district court. Looney has argued that Section 5 of the Texas Probate Code vests exclusive subject matter jurisdiction over this action in the probate court of Dallas County.

Section 5(d) was amended in 1973 to read:

All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills. Tex.Prob.Code § 5(d)

“Although the amendments were intended to broaden the jurisdiction of the probate court, decisions construing the amendments have not given them the effect of excluding the district court's jurisdiction.[101] Looney has argued that the imposition of a constructive trust is a matter "incident to an estate," and that exclusive jurisdiction to hear such cases rests in the probate court. The record shows that the estate has already been probated and turned over to the testamentary trustee, and the present proceedings are to determine whether a constructive trust should be imposed and alternatively to construe the will.

“A constructive trust is considered a "creature of equity" designed to correct an injustice. The district courts clearly have jurisdiction in actions to impose a constructive trust.[102] Amended Section 5 does not reflect any legislative intent to alter or overturn this well-established rule. Insofar as construction of the will may be involved, jurisdiction of such matter is exclusively in the district court.[103] We hold that the district court had subject matter jurisdiction over this cause. Looney's second cross point is overruled.

“Both of Gordy's points of error attack the trial court's action in dismissing the cause pursuant to Looney's "Plea in Abatement." By that instrument, Looney requested that the court dismiss the suit because (1) Shellie Looney was not joined, and (2) Gordy had no standing to prosecute the action.

“In substance, Looney's "Plea in Abatement" was a plea in bar. By it, Looney sought a final ruling from the trial court that Gordy lacked standing to bring this suit and that the cause should be dismissed. Regardless of the label attached to it, this was a plea in bar rather than a plea in abatement.[104]

“It is our opinion that it was error for the trial court to dismiss this action pursuant to Looney's plea in bar. Absent an agreement between the parties, a summary disposition based upon pleadings, affidavits, and arguments of counsel can be had only by summary judgment proceedings.[105] Moreover, summary judgment would be proper only in the event there are no unresolved fact issues.

“Furthermore, we have concluded that the trial court erred in holding that Gordy had no justiciable interest in this controversy. To prevent a murderer from profiting by his own wrong, equity will impress a constructive trust upon any assets he received through his victim's will.[106] Whether the trust will be impressed in favor of the heirs of the murder victim or the contingent beneficiary named in the will should be determined according to the intent of the murder victim.[107] Unless established as a matter of law, this intent question is one for the trier of fact and both the heirs of the murder victim and the contingent beneficiary named in the will have a justiciable interest in the controversy. In the case before us, both Shellie Looney, Mrs. Howe's sole eligible heir at law, and Gordy, the contingent beneficiary named in Mrs. Howe's will, have a justiciable interest in the case.[108]

“Gordy's contention that she has a justiciable interest in this action is further supported by our supreme court's recent decision in Deveroex v. Nelson.[109] *[110] . In that case, the primary beneficiary under a life insurance policy murdered the insured. Although article 21.23 of the Texas Insurance Code provided that, in such circumstances, the insurance proceeds should pass to the "nearest relative" of the murder victim, the court construed the statute so as to accommodate the murder victim's expressed intent. Instead of the "nearest relative," the court allowed the named contingent beneficiary under the policy to recover the proceeds. The court reached this conclusion even though the contingency, death of the primary beneficiary, had not yet occurred. In this case, as in that one, the intent of the murder victim should determine who benefits from any constructive trust.[111] However, we do not agree that the decedent's intention for Gordy to take, under these circumstances,[112] has been conclusively established and it is our opinion that the opportunity for complete factual development in this regard should be available to all parties.

“Looney has argued, however, that prior Texas decisions have impressed constructive trusts only in favor of the heirs of the murder victim.[113] None of the cases cited for this proposition by Gordy involved a will naming a contingent beneficiary to take in the event the alleged wrongdoer as primary beneficiary was disqualified to take under the will. Because the issue regarding a contingent beneficiary was not raised in those cases, we do not consider those cases controlling here.

“Shellie, as an heir, has a justiciable interest under which she can prevail in the event that the fact finder determines that Mrs. Howe would have intended that Shellie take the assets of the estate if the primary beneficiary under the will was disqualified to do so. Because Shellie has a justiciable interest in the case, she should be made a party. Although the plaintiff's amended petition reflects that an agreement has been made whereunder the heir and the contingent beneficiary, as co-plaintiffs, would share equally in any benefits recovered by either of them, we hold that the heir has not effectively been made a party to the suit. No suit has been brought in her behalf by a next friend and she has not been made a defendant.

“We overrule appellant's points of error insofar as they complain of the trial court's conclusion that Shellie was not effectively made a party to the suit. We sustain appellant's points of error complaining of the trial court's action in holding that Gordy did not have a justiciable interest in the estate of the deceased and in rendering final judgment against her. . . .

“[I]t is our opinion that the trial court erred in rendering a final judgment against Gordy in response to the plea in abatement, and in effect, dismissing Gordy's action with prejudice. We agree, however, with the trial court's conclusion that Shellie, as an heir, is an indispensable and necessary party to this action and that her right to have an action brought in her behalf should not be prejudiced. The foregoing facts and circumstances of this case show no reason why Shellie should not be a party through her next friend. Any competent adult may sue in that capacity so long as it is in the best interest of the child.[114] We therefore reverse the judgment of the trial court and remand the cause to it with instructions to abate the action until Shellie Looney is properly made a party. At that time, the merits of the case including questions involving Mrs. Howe's intent can be fully litigated. This holding is limited to the particular facts and circumstances involved in this case, wherein it appears feasible to join the child by next friend. We express no opinion with respect to circumstances where such joinder cannot be accomplished.

Concurring and dissenting opinion of Justice Reynolds

“Because the trial court erred in summarily determining that Jean Reece Gordy has no justiciable interest in this litigation, I concur that the judgment must be reversed and the cause remanded. However, for the reason that I do not agree Shellie Looney is an indispensable party to this action, I respectfully disassociate myself from the majority's instruction that the proceedings be abated until she is made a party.

“Certainly, Shellie Looney would be a proper party to the action; but, in my view of Rule 39, Texas Rules of Civil Procedure, she is not an indispensable party. By that rule, she is an indispensable party only if she is subject to service of process and if (1) in her absence complete relief cannot be accorded among those already parties to this cause, or (2) she claims an interest in the subject matter of the litigation and is so situated that an adjudication in her absence may (i) actually impair or impede her ability to protect that interest, or (ii) subject any of those who are parties to a substantial risk by reason of that interest. It seems at once apparent that the circumstances of this cause do not bring Shellie Looney within the operation of the rule.

“First and foremost, Shellie Looney's adoptive identity has not been revealed and, so long as it remains undisclosed, she is not subject to service of process. She, therefore, is not, within the meaning of the rule, an indispensable party.

“Moreover, the issue now before the trial court i. e., whether a constructive trust is to be imposed on the decedent's estate in favor of Jean Reece Gordy can be adjudicated in the absence of Shellie Looney. While it may be said that any interest she may have as an heir of the decedent could be better protected if she were a party to the action, the decisive fact is that an affirmative claim of interest in her behalf has not been interposed in the proceedings.

“Additionally, there is no assurance of Shellie Looney's voluntary appearance in the cause. Thus, sans service of process on or a voluntary appearance by Shellie Looney, neither of which is within the control of the parties to the cause, the majority's instruction to abate dictates that the issue now ripe for adjudication will pend forever.

“Accordingly, I respectfully dissent to the holding that the proceedings be abated until Shellie Looney is made a party. I would reverse the judgment and remand the cause without direction.

* * * * *

Texas probate jurisdiction is a quagmire. Mejorada wades into that quagmire. Beware of thinking that any court or any person can accurately explain Texas probate jurisdiction. Some things are indescribable. Texas probate jurisdiction is one of those indescribable things. Mejorada explores a court’s jurisdiction to create a slayer’s rule constructive trust.

Mejorada v. Gonzalez 663 S.W.2d 891 (Tex.App.- San Antonio 1983)

“This is an appeal from the district court’s dismissal for lack of jurisdiction over a suit for conversion of assets of an estate.

“Appellant, the administrator of the estate, sued appellee in district court for conversion of a certificate of deposit claimed by the estate, and alternatively, for imposition of a constructive trust on the proceeds of that certificate. The district court dismissed without prejudice for want of jurisdiction. The court held the action was within the exclusive jurisdiction of the Webb constitutional county court or of the Webb County Court at Law.

“We reverse the dismissal on grounds that the district court alone can supply appellant the full relief he requests, namely the imposition of a constructive trust.

“Appellant, Manuel Mejorada, alleges the following facts in his petition. Rafael Carranza had caused a certificate of deposit to be issued in his own name and that of appellee, Ramoncita Gonzalez. Neither the certificate nor the signature card mentioned survivorship rights. After Carranza died intestate, a check for the amount in the certificate was made out to Gonzalez, who transferred the money to Alamo National Bank of San Antonio. Appellant as administrator of Carranza's estate filed suit in district court to recover the amount from Gonzalez.

“The district court found as facts the following. Appellant had been named administrator of Carranza's estate in a Mexican court where estate administration proceedings were still pending. By virtue of having been named administrator by the Mexican court, appellant was granted letters of ancillary administration by the Webb County Constitutional County Court, where the ancillary administration was still pending. Prior to his death, the decedent and Gonzalez were common law husband and wife.

“TEX. CONST. art. V, § 8, gives the district court, concurrently with the county court, the general jurisdiction of a probate court. The same section of the Constitution gives the legislature the power to increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters. The same section gives the district court general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or the Constitution.

“Appellee's contention below and here is that the legislature, with the above authority, amended TEX.PROB.CODE § 5(c) so as to divest the district court of probate jurisdiction in counties with a county court at law (such as Webb County). Further, the legislature, in TEX.PROB.CODE § 5(d), gave the county court power to hear all matters "incident to an estate." Therefore, appellee urges, the county court and not the district court has exclusive jurisdiction over the subject matter of this action.

“The amendments to the Constitution and the Probate Code did have the effect of broadening the jurisdiction of courts hearing probate matters, but they did not take away the jurisdiction of the district courts. This is particularly true in a matter involving a request to impose a constructive trust upon the assets of an estate.[115]

“TEX.PROB.CODE § 5A(a) and (b) define what is included in the phrase "incident to an estate." Subsection (a) sets out what is included in the phrase when the proceedings are in constitutional county courts and statutory county courts at law. Subsection (b) sets out what is included in the phrase when the proceedings are in statutory probate courts and district courts. The definitions are virtually identical except that the language "the interpretation and administration of testamentary trusts and the applying of constructive trust" is only found in the subsection (b) applying to statutory probate courts and district courts. The obvious intent of the legislature was to avoid the possibility of a non-lawyer county judge being faced with deciding questions of the law of trusts by withholding jurisdiction over that subject matter. The district court has such jurisdiction under the Constitution and Probate Code.

“Where it appeared from the pleadings that the suit involved issues for which the jurisdiction of the county court was inadequate to grant the relief sought, the district court should have exercised its jurisdiction.[116]

“The. . . . case is remanded to the district court for further proceedings.

* * * * *

Ragland explores probate court jurisdiction to impose a constructive trust and the application of the slayer’s rule to community property.

Ragland v. Ragland 743 S.W.2d 758 (Tex.App. - Waco 1987)

“The constitutional county court of Somervell County imposed a constructive trust on the funds in a profit-sharing plan to prevent a common-law wife from unjustly enriching herself by murdering her husband. The judgment will be reversed because only a statutory probate court or a district court can impose a constructive trust.

“Lee Ann Ragland was convicted of murdering her common-law husband, Stephen Ragland, and sentenced to forty years in prison. Marine Drilling Company, her husband's employer, deposited $2,313.64 by interpleader in the constitutional county court of Somervell County in the proceeding administering his estate. The funds were from a profit-sharing plan and represented contributions Ragland had made from his salary and the company's matching contributions. He had named Lee Ann Ragland as beneficiary of the funds in the event of his death. However, the court concluded that she was not entitled to receive any of the funds because she had voluntarily and wrongfully caused her husband's death. Consequently, it awarded one-half of the funds to Ragland's estate and one-half to Lee Ann Ragland, impressed with a constructive trust in favor of the estate. Lee Ann Ragland argues under a single point that the court erred when it impressed a constructive trust on her one-half community interest in the funds and that, in any event, only a district court could impose a constructive trust on her husband's one-half interest.

“A constructive trust may be imposed upon the property of a deceased to prevent the beneficiary, who wilfully and wrongfully caused the decedent's death, from profiting from his own wrong. See Bounds v. Caudle.[117] Section 5A(a) of the Probate Code defines the terms "appertaining to estates" and "incident to an estate" as they relate to the probate jurisdiction of the constitutional county court and statutory county court at law. See Tex.Prob.Code § 5A(a). These terms are defined for purposes of the probate jurisdiction of a statutory probate court or district court in section 5A(b). See id. at § 5A(b). The definitions in the two subsections are virtually identical, except that the legislature omitted any reference to constructive trusts in subsection (a) and expressly gave the statutory probate court or district court jurisdiction to apply constructive trusts in subsection (b).[118]

“Legislative intent can be inferred from the absence or presence of a particular provision in a statute. See Freels v. Walker[119] Considering the express reference to constructive trusts in subsection (b) and the absence of such an express reference in subsection (a), one can reasonably infer that the legislature must have intended to limit jurisdiction to impose a constructive trust to either the statutory probate court or district court. Accordingly, the constitutional county court of Somervell County exceeded its jurisdiction when it purported to impose a constructive trust in favor of the estate.[120]

“Furthermore, Ragland's estate concedes on appeal that the funds were community property and, for that reason, the court could apply a constructive trust only on the one-half interest which Lee Ann Ragland would have otherwise inherited from her husband under the laws of descent and distribution. Section 41(d) of the Probate Code provides that a conviction cannot work a forfeiture of the criminal's estate. Thus, a constructive trust cannot be used to deprive a murderer of property lawfully acquired by him, but merely[121] to prevent him from acquiring a beneficial interest from his unlawful act.[122] Therefore, the court could not impose a constructive trust on the community interest already vested in Lee Ann Ragland, but only on the one-half interest she would have inherited from her husband as a result of her wrongful act.

“The judgment is reversed and the cause is remanded for further proceedings under section 5A(b) of the Texas Probate Code.[123]

* * * * *

Weldon is a special case in the pantheon of cases exposing the nightmare that is Texas probate court jurisdiction.

Weldon also is a slayer’s rule case in which the son who shot and killed his mother was not prohibited from inheriting. Yes, the slayer inherited. There is hope for slayers and their lawyers who take the slayer’s case on a contingent fee! But, any Texas lawyer who takes on a slayer’s rule case, or any other probate litigation, should read Weldon, be aware of the practical consequences of the jurisdictional problems, and consider whether it is more profitable to walk away from a rightful inheritance than it is to obtain that inheritance through the Texas judicial process.

The pain caused by the Weldon family tradgedy was followed by almost two decades of litigation in which the parties were bounced from court to court. This final court of appeals seemed reluctant to send the case back to start over once again. The impact of the procedural nightmare on the slayer, his sister their family, friends and attorneys must have been awful. After reading Weldon, pause for a moment to consider the effect of the court procedural and jurisdictional foolishness on the people involved.

Weldon v. Hill 678 S.W.2d 268 (Tex.App. - Ft. Worth 1984)

“This is a suit arising out of and ancillary to a probate matter. The present cause of action sought a determination of appellee's, J.M. Hill's, rights as a lawful legatee and devisee under the will of his deceased mother, Mabel Hill. The suit further sought to require an accounting by Lillie Mae Weldon, appellant here and daughter of the deceased, as the independent executrix of the estate of Mabel Hill. Appellee also sought a determination of and declaration by the court as to the property to which he would be entitled upon partition and distribution of such estate. Trial was to a jury and based upon the jury's answer to a single special issue judgment was entered in favor of the appellee from which judgment the present appeal was taken.

“We affirm.

“Appellant raises two points of error in the present appeal. Her points of error challenge the jurisdiction of the trial court and the propriety of the trial court's overruling of her plea in abatement. Though neither point of error challenges the sufficiency of the evidence, a partial review of the facts is necessary.

“On the evening of December 7, 1967, the appellee shot and killed his mother, Mabel Hill. A review of the facts of this shooting are not necessary for a determination of this appeal. In the early part of 1968, the last will of Mabel Hill was admitted for probate in the County Court of Stephens County, Texas. The will of Mabel Hill named her daughter, Lillie Mae Weldon, appellant here, as independent executrix and directed that she act without bond. The will further directed that "no proceedings be had in Probate Court other than to probate this will and return an inventory, appraisement and list of claims." Letters testamentary were issued to appellant as independent executrix upon her taking of the oath required by law. An inventory and appraisement was entered in the probate proceedings and approved by the court in September of 1970.

“The will of Mabel Hill disposed of all of her property, both real and personal, by bequests to both her son, appellee, and her daughter, appellant. The will restricted the sale of all real property for a period of twenty years after the death of Mable Hill and further directed that should appellee or appellant die before the expiration of such time then their interest should go to their respective "body heirs".

“Acting as independent executrix, the appellant has refused to partition and distribute any of the property and assets of the estate of Mabel Hill to appellee. Appellant has justified such refusal by alleging that appellee intentionally caused the death of their mother, Mabel Hill. Appellee filed an application for partition and distribution of the estate in the probate proceedings. Thereafter, the County Court of Stephens County, on its own motion, transferred the probate proceedings to the District Court of Stephens County. That probate proceeding is still pending in the District Court of Stephens County under Cause No. 18,493-A.

“In September of 1982, appellee initiated the present cause of action under a separate cause number, 21,827, in the District Court of Stephens County. Appellant filed an original answer, subject to her plea in abatement, which contained a plea to the jurisdiction of the court and alleged the intentional killing of Mabel Hill. The court overruled appellant's plea in abatement. Appellant filed a motion to dismiss alleging want of jurisdiction of the District Court which motion was denied by the court.

“The docket sheet of the District Court of Stephens County reflects that case # 21,827, came to trial on May 31, 1983. Such docket sheet further reflects that plaintiff, appellee here, moved for a mistrial and same was granted by the court. Venue was changed and on July 25, 1983, the cause was transferred by the 90th District Court sitting in Stephens County to the 90th District Court sitting in Young County. The case proceeded to trial and judgment was entered by the District Court of Young County based on the jury's answer to a single special issue. The special issue inquired: "Do you find from a preponderance of the evidence that J.M. Hill knowingly or intentionally shot and killed Mabel Hill?" The jury answered in the negative by stating "We do not". At trial, the parties stipulated that the records before the court were true and correct, that the probate proceedings were then pending in the District Court of Stephens County under cause no. 18,493, that certain powers of attorney executed by the children of appellee, J.M. Hill, in his favor were acceptable and finally that appellee did shoot and kill Mabel Hill.

“The present appeal arising from the lawsuit filed in 1982 is not a result of the first trial or appeal for the issues addressed in this case. The record shows appellee previously filed an application for partition and distribution of the estate of Mabel Hill and the County Court of Stephens County dismissed the same for lack of jurisdiction. Appellee appealed that matter to the District Court of Stephens County which entered a judgment in favor of appellee on May 30, 1980. Such judgment was based on a jury finding that appellee, here, did not knowingly or intentionally shoot and kill Mabel Hill. Appellant appealed that judgment to the Eleventh Supreme Judicial District Court of Civil Appeals in Eastland, which court, in an unpublished opinion, vacated the district court's judgment and dismissed the cause. The Eastland Court of Civil Appeals stated:

“This is a probate matter. J.M. Hill filed in the County Court of Stephens County an application for partition and distribution of the Estate of Mabel Hill against Lillie Mae Weldon, Independent Executrix of said estate. The application was dismissed for lack of jurisdiction. Hill appealed said dismissal to the district court of Stephens County. After Mrs. Weldon's motion to dismiss was overruled by the district court and after a jury trial, judgment was entered for Hill. Mrs. Weldon appeals. We vacate the judgment of the trial court and dismiss the cause.

“In her first point of error Mrs. Weldon urges that the trial court erred in entering judgment because the trial court lacked jurisdiction. We agree.[124] 1[125]

“The net effect of the above is that the probate of the will of Mabel Hill has remained open for the past sixteen years and still remains open today. During this time none of the property or assets of Mabel Hill have been distributed under her will and the independent executrix, appellant, has maintained total control over all of such property and assets. The inactivity and absence of resolve in the affairs of the estate of Mabel Hill is mainly due to the extreme animosity between the appellant and appellee as noted by the