Texas Slayers Rule: May A Killer Receive Insurance Benefits

Texas Slayers Rule: May A Killer Receive Insurance Benefits? #1 (2003)

YouKnowItAll.com

Suitability

This course is suitable for all lawyers. The concepts are not technical. No special background is required. The cases are interesting. The Slayer’s Rule forms the core of many books and movie plots. The Slayer’s Rule is a crossover topic that affects estate and criminal lawyers and those who litigate the Slayer’s Rule cases in civil courts. Insurance lawyers will find this topic interesting. Lawyers who are contemplating murdering, or being murdered by, their relatives will find it especially important. That is not as far fetched as it seems. A shocking number of Texas Slayer’s Rule cases result from killings committed by lawyers. What would Shakespeare think of that?

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 Cluster of Courses

This is one of a cluster of 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 is course #1 of two courses which concentrates on life insurance benefits. A separate course concentrates on the right to an inheritance or other assets that are not life insurance. The material overlaps so all of the courses are required for a complete knowledge of either category of assets. These courses combine to provide a comprehensive review of the Texas Slayer’s Rule.

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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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.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number.Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

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. Some browsers will show the footnote if you hold your curser over the footnote number without clicking 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.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

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Table of Contents

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Course #1

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Introduction

The Essence of the Slayer’s Rule

I Give You No Reason to Kill Me

The Scope of This Course

Case Study Method

Issues Explored in This Course

Texas Courts and the Slayer’s Rule

The Insurance Company as a Victim

A Windfall

A Radical Idea

Texas Constitution

Texas Code of Criminal Procedure

Texas Probate Code

Texas Insurance Code

Historic Cases

Mutual Life v. Mellott 57 S.W. 887 (Tex.Civ.App. 1900)

Murchison v. Murchison 203 S.W. 423 (Tex.Civ.App. - Beaumont 1918)

National Life v. Thompson 153 S.W.2d 322 (Tex.Civ.App. - Waco 1941)

The Leading Cases - Greer and Bounds.

Greer v. Franklin Life Insurance 221 S.W.2d 857 (Tex. 1949)

Bounds v. Caudle 560 S.W.2d 925 (Tex. 1977)

Out of Bounds - The Retrial

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

The Supreme Court takes the wrong turn

at the nearest relatives or contingent beneficiary fork.

Deveroex v. Nelson 529 S.W.2d 510 (Tex 1975)

[Overruled in Crawford v. Coleman 726 S.W.2d 9 (Tex. 1987)]

Crawford v. Coleman 701 S.W.2d 79 (Tex.App. - Ft. Worth 1985)

The Supreme Court Reverses Direction

Crawford v. Coleman 726 S.W.2d 9 (Tex. 1987) [Overruling Deveroex]

The Legislature Responds - Named Contingent Beneficiaries Win Again

Willfulness

Seedig v. Dennis 701 S.W.2d 354 (Tex.App. Ft. Worth 1986)

A Ship of Fools Takes on Crawford

Rumbaut v. Labagnara 791 S.W.2d 195 (Tex.App.-Houston [14th Cir.] 1990)

Self Defense justifies slaying.

Giles v. Wiggins 442 S.W.2d 839 (Tex. Civ.App. - Ft. Worth 1969)

Choice of law, Criminal to civil Collateral estoppel, and the Best Opinion.

American National v. Huckleberry 638 F. Supp. 233 (N.D. Tex, Dallas 1986)

The Iran collateral estoppel blonde defense.

Cooley v. Cooley 503 S.W.2d 604 (Tex.Civ.App. - Eastland 1973)

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Course #2

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Is the Slayer Crazy & Rich, or Is the Law Crazy

Simon v. Dibble 380 S.W.2d 898 (Tex. Civ. App. - San Antonio 1964)

Hair v. Pennsylvania Life 533 S.W.2d 387 (Tex.Civ.App. - Beaumont 1975)

Slayer’s Rule attorney’s fees, contingent fees, and guardianship.

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

The Conviction is Vacated. The Accused Slayer Is Innocent. So What?

Mowbray v. Avery April 11, 2002 (Tex.App. - Corpus Christi 2002)

Conspiracy to Slay

Guevara v. Guevara March 22, 2000 Not Published No. 04-99-00584 -CV (Tex.App. - San Antonio 2000)

Abusive Sanctions

In re Guevara January 10, 2001 (Tex.App. - San Antonio 2001)

Francis v. Marshall 841 S.W.2d 51 (Tex.App. - Houston [14th Dist.] 1992)

Is it Insurance? Does Other Law Trump § 21.23

Nelson v. DISD 774 S.W.2d 380 (Tex.App. - Dallas 1989)

Metropolitan Life Insurance v. White 972 F.2d 122 (5th Cir. 1992)

Interpleader & Venue

A Little Quarrel.

McCormick v. Southwestern Life 35 S.W. 2d 502 (Tex.Civ.App. -Waco 1931)

Farmers & Merchants Bank v. Helton 278 S.W.2d 352 (Tex.Civ.App. - Amarillo 1954)

Insurance Code Article 3.62, Good Faith, Penalty, Fees, & Interpleader

Murray v. Bankers Life Company 299 S.W.2d 730 ( Tex. Civ. App. -Ft. Worth 1957)

Gabler v. Minnesota Mutual Life Insurance 498 S.W.2d 413 (Tex.Civ.App. - Texarkana 1973)

Great American Reserve v. Sanders 525 S.W.2d 956 (Tex. 1975)

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The Course Text - Texas Slayers Rule: May A Killer Receive Insurance Benefits?

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Introduction

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The Essence of the Slayer’s Rule

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I Give You No Reason to Kill Me

There is a fundamental concept underlying the Slayer’s Rule. Everyone can understand the concept. Everyone can have an opinion of what the law should be. It is based on what is right and wrong, and what we want in our lives. Those who create and interpret the rule can’t help but think about it in these basic and personal ways. The Slayer’s Rule is a compilation of the concepts that have developed as people decided what they would like the rule to be in their lives.

A legislator, when considering a proposed Slayer’s Rule law, and a judge, when construing a Slayer’s Rule law or evolving the Slayer’s Rule common law, inevitably thinks about what he or she wants if he or she is the insured who is slayed. They also think about what they want if their parent, spouse, child, uncle, or friend is slayed. Attitudes are fairly consistent, at least on the basic issues. For example, if your child kills you, do you want that child to receive your estate or insurance death benefit? Probably not.

Another concept is not discussed in the cases but may be even more compelling. Do you want your child to have a financial motive to kill you? That question is easy. The answer is no. Your child might kill you for other reasons, but giving your child a financial benefit as an incentive to kill you is not a comfortable thought. While the Slayer’s Rule is spoken of after the fact as being about whether the slayer benefits from the killing, the underlying issue that isn’t mentioned in cases is whether the judge’s child or spouse will benefit from killing the judge in the future.[1] In a sense, the Slayer’s Rule is a form of self defense. If takes away a motive for someone to kill us. That is very personal, and very convincing. The Slayer’s Rule isn’t technical. It is emotional as well as logical. There are technical issues at the periphery of the Slayer’s Rule, but the core issue is the simple emotional idea that “I don’t want someone to have a financial motive to kill me.”

These concepts apply to intentional killings. If our spouse or child accidentally causes our death, so be it. If it is an accident, it isn’t intentional so a financial motive to kill us is not involved. While we don’t want our relative to kill us, we accept the risk of an accident and do not begrudge the relative who accidentally kills use their expectancy that comes when we die.

It is not remarkable if the Slayer’s Rule prevents a reward for intentional killing, but does not prevent a benefit from an accidental killing. What would be remarkable would be if it did not do so.

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The Scope of This Course

The Texas Slayer’s Rule has existed in the shadows of Texas law. This course examines the Texas Slayer’s Rule as it applies to insurance death benefits. A separate course covers the Texas Slayer’s Rule as it applies to probate assets and other assets. This course, and the teachers conclusions, are a mosaic stitched together from isolated pieces. Primarily, it is the compilation of Texas cases, viewed through the prism of traditional American Slayer’s Rule concepts. Most Texas cases limited their scope and discussion to the matter at hand without an exhaustive view of the Slayer’s Rule. Most courts seem to have limited knowledge and write within their base of knowledge. Since a statute was enacted early in 1919, Texas courts have focused on the particular words of the statute.

This course text is long. You may study it all if you wish. If you wish to limit the time you spend, some portions are suitable for skimming or skipping. They are identified by this phrase: {May be skimmed or skipped.} It appears with certain historical cases, Deveroex and Crawford, interpleader and venue, and insurance company liability and entitlement for fees. Those topics will be of interest to some, but do not generally reflect the current Slayer’s Rule so skimming or skipping is appropriate.

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Case Study Method

This course uses the case study method. You learn from the actual words of the court. The author provides commentary, editing, and case selection. Since each case is presented in one piece, you can gain a sense of the entire case. However, cases often involve more than one issue. The cases are grouped by one issue in the case, but there are often multiple issues. As a result, issues are sometimes covered by cases which are not grouped under that issue. A symbol (* * * * *) separates cases and topics so that more easily move to the next one, by scrolling or searching for the symbol * * * * *.

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Issues Explored in This Course

In order to provide the full texture of the Texas Insurance “Slayer’s Rule,” this course examines:

1. historical cases going back to 1900;

2. cases exploring the liability of the insurance company for fees and penalties for nonpayment of the benefits and entitlement of the insurance company for legal fees;

3. legal fees for Slayer’s Rule litigation on behalf of a minor ward and the implications for a guardian, prospective guardian and lawyer;

4. multistate choice of law and traditional intrastate venue issues;

5. a criminal conviction as collateral estoppel or evidence of a slaying that causes Slayer’s Rule forfeiture;

6. whether Slayer’s Rule litigation must wait for resolution of criminal litigation

7. the distinction between insurance or an employee benefit;

8. who receives the death benefit instead of the disqualified slayer;

9. sanctions in insurance Slayer’s Rule litigation; and

10. the core Slayer’s Rule issues of whether the death was accidental or intentional, illegality; wrongfulness, willfulness, insanity; and proof that the slayer slayed and that the deceased was slayed.

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Texas Courts and the Slayer’s Rule

Texas cases do not call the Slayer’s Rule the “Slayer’s Rule.” Slayer’s Rule is the accepted term in American law. We use the term because it is both correct and convenient.

Texas courts don’t necessarily apply the Slayer’s Rule statutes as written. When they choose, the courts misconstrue the words of the statute to fit their sense of right and wrong. In effect, they revise the statute to fit their idea of the “common law” which, in Slayer’s Rule cases, is their concept of what the law should be. In two respects, the Texas Supreme Court has altered the statute by “construing” it.

1. The Texas Supreme Court, over a dissent, construed the statutory mandate that the insurance benefits which do not pass to the the slayer pass to the “nearest relatives” of the victim as meaning that the benefits pass to the “contingent beneficiary named in the policy.” Why? It seems that the court preferred that result. After about a decade, the court, confessed error and admitted that it has no idea why it came to such a conclusion. Why did it change its mind? Apparently in the later case it preferred the statutory result to the one it had invented. In 1987, the year the the Texas Supreme Court decided to follow the statutory language and award the death benefit to the nearest relative rather than the contingent beneficiary, the Texas legislature changed the statute to award the death benefit to the contingent beneficiaries after all.

2. The Texas Supreme Court, in Greer, construed a “willful” slaying as applying to an “illegal” slaying but not to a legal slaying. Are these concepts the same? I think not. For example, a killing in self defense can be willful without being illegal, as I view those terms. It can be intentional, knowing, rational, and legal. The Supreme Court “construed” “willful” as meaning both intentional and illegal. Perhaps the Slayer’s Rule should be limited to illegal slayings. The Supreme Court clearly believed that. There also is an argument against having an illegality requirement. The court does not explore it. The argument is that a person who intentionally kills should not receive a financial reward for the killing, regardless of the motive or circumstances. If that was the law, a person who intentionally and legally kills would neither gain nor lose property as a result of the killing. That might be a good rule. That might be what the legislature intended. Regardless of the merits, the illegality requirement was created by the Supreme Court which says it sees the requirement in the statute. In Bounds, the Texas Supreme Court uses the word wrongfully instead if the word illegally. It doesn’t explain its thinking. It may not have been thinking. The words are not the same. Can a killing be illegal without being wrongful, or wrongful without being illegal? The statute does not contain the words “wrongful” or “illegal” The statutory word is “willful.” The words are different. The meanings are different. The court seems to use whichever word it feels like using at the moment.

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The Insurance Company as a Victim

Mellott is an historic look at a case in which the Slayer’s Rule as we know it was not considered. Instead, the insurance company sought to void the death benefit on the grounds that the beneficiary slayed the insured. In a contest between a murderer who murdered for the purpose of collecting the insurance and an insurance company which accepted the premiums but would like to keep the death benefit for itself, a jury may not be able to find a pleasing result. Where there is doubt about the cause of death, but no doubt that the insurance company is. . . an insurance company that wants to keep the money . . . the insurance company loses and the widow, whether slayer or not, takes the money. If the contest had been between the possibly guilty widow and clearly innocent relatives, the evidence of a slaying might have been perceived as more compelling.

The Slayer’s Rule may be more appealing than a rule providing that the insurance company keeps the money, but perhaps the insurance company should not be required to suffer the loss in a case like Mellott if there really was a murder - especially if the insurance is purchased just before the slaying as part of a scheme to convert premiums into a death benefit through purchase of a policy and murder. If there is a slaying, the insurance company is a victim too.

With the Slayer’s Rule that exists today, the insurance company is victimized by each slaying, but no one seems concerned. The analysis is simple. The death benefit is “accelerated” by the murder. The insurance company pays now instead of later. It also loses the future premiums that go unpaid but would have been paid until the death would otherwise have occured. Clearly the insurance company loses, even though it is not at fault.

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A Windfall

Under the Slayer’s Rule of today, “contingent beneficiaries” of the deceased receive a windfall. It is a windfall in two respects. If there had been no slaying, but the death had occured from another cause, the contingent beneficiaries would have received nothing. The regular beneficiary, who in that case would not be a slayer, would receive the benefit. Secondly, if there was no slaying, the deceased would be alive and no one would get any death benefit. The slaying creates a windfall for the contingent beneficiaries who benefit from the Slayer’s Rule. The contingent beneficiaries might regret the death of the decedent, but then again, they might applaud it. The contingent beneficiaries laugh or cry all the way to the bank.

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A Radical Idea

Since a slaying that triggers the Slayer’s Rule creates a cash windfall for the contingent beneficiaries, and a cash detriment to the innocent insurance company, should there be an equitable adjustment to make the insurance company whole by reducing the windfall to the contingent beneficiaries? That could be done by deducting the present value of the future premiums which would have been paid if the deceased had lived to the actuarially average date of death, and reducing the death benefit to its present value, calculated as if the deceased had not been slayed. I have never seen any such suggestion. It deserves consideration. As the Slayer’s Rule now functions, the detriment to the insurance company is ignored and the fact that the contingent beneficiaries receive a windfall is ignored. The focus is strictly on the slayer and the desire to prevent the slayer from benefiting. That is an incomplete analysis because it ignores the insurance company loss and the contingent beneficiary windfall.

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Texas Constitution

“No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.”[2]

Texas Code of Criminal Procedure

“No conviction shall work corruption of blood or forfeiture of estate.[3]

Texas Probate Code

“Convicted Persons and Suicides. 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; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.”[4]

Texas Insurance Code

‘Whenever any person shall procure the issuance of a policy of insurance on his or her life in any legal reserve life insurance company, and designate in writing filed with the company the beneficiary to receive the proceeds thereof, the company issuing such policy shall, in the absence of the receipt by it of notice of an adverse claim to the proceeds of the policy from one having a bona fide legal claim to such proceeds or a part thereof, pay such proceeds becoming due on the death of the insured to the person so designated as beneficiary, and such payment so made, in the absence of such notice received by the insurance company prior to the date of the payment of the proceeds, shall discharge the company from all liability under the policy.[5]

Article 21.23 effective August 31, 1987.

“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, a contingent beneficiary named by the insured in the policy shall receive the insurance unless that contingent beneficiary was also a principal or an accomplice in willfully bringing about the death of the insured. If no contingent beneficiary is named by the insured in the policy or if all contingent beneficiaries named by the insured in the policy were principals or accomplices in willfully bringing about the death of the insured, the nearest relative of the insured shall receive said insurance.”[6]

Article 21.23 until August 31, 1987

Historic Cases

Mutual Life v. Mellott 57 S.W. 887 (Tex.Civ.App. 1900)

{May be skimmed or skipped, but Mellott is interesting}

“This suit was brought by appellee to recover of appellant upon a policy of insurance issued by said company upon the life of William Mellott, deceased, and payable to appellee. The appellant, by its amended answer, upon which the cause was tried, admitted the execution of the policy, the payment of the premium, the death of the deceased, and proof of loss, but alleged, in substance, that plaintiff ought not to recover upon the policy sued on, for the reason that she had willfully and maliciously caused and produced the death of the said William Mellott by administering to him strychnine poison for the purpose of causing his death, and thereby receiving and enjoying the benefits of said policy. The cause was tried upon this issue alone, the appellant assuming the burden of proof, and being accorded the right to open and close the evidence and argument in the case, and resulted in a verdict and judgment in favor of appellee for the sum of $5,362.50, the amount found due upon said policy.

“Briefly stated, the facts proven on the trial are as follows: The policy on the life of William Mellott was issued on the 15th day of March, 1898, and said Mellott died on June 13, 1898. The evidence is conflicting as to whether Mr. or Mrs. Mellott procured the issuance of the policy, but the premium on the policy was paid by the appellee. About the same time this policy was issued appellee procured the issuance of a policy for $10,000 by the same company on the life of Lucinda Jeffers, and had said policy assigned to her by Mrs. Jeffers. The evidence is conflicting as to whether or not Mrs. Jeffers knew that a policy had been issued on her life, and that she had transferred same to appellee; she testifying that appellee told her shortly after she had signed the paper, which she understood only gave appellee the right to use the policy, that she failed to pass a satisfactory examination, and that the policy had not been issued, in which statement she was corroborated by the testimony of two other witnesses. Mrs. Jeffers about this time made a will bequeathing all of her property, including the policy in question, to appellee. The deceased, William Mellott, for more than a year previous to his death, had been in bad health, suffering from trouble with his stomach and bowels, which trouble had at times caused him to have convulsions. About a month before his death he was seriously ill with entero coletis, the same character of disease which his attending physician testified was the cause of his death. On the 6th day of June, 1898, he was taken suddenly ill, and Dr. McKay was sent for; he being the nearest physician, and the emergency not allowing his regular physician to be sent for. He was first attacked with spasms or convulsions. Dr. McKay attended him regularly from the 6th to the 13th of June, making several visits each day. This physician testified that the deceased had convulsions from the first day that he was called to see him, and that such convulsions were among the usual symptoms, or rather results, of the disease from which the patient was suffering. His last visit to deceased before his death was about 8 o'clock on the evening before his death. At this time he thought the deceased was better, and did not anticipate a fatal termination of the disease. The deceased began to grow worse shortly after Dr. McKay left, on the evening of the 12th, and died about 4 or 5 o'clock the next morning. The doctor was sent for about 11 o'clock that night, but was not at home, and was again sent for about 3 o'clock. In answer to this last call he went to Mellott’s house, but arrived there just after his death. The preponderance of the evidence is to the effect that the convulsions from which deceased began to suffer shortly after Dr. McKay left him, on the evening of the 12th, were of the same general character as those which deceased had previously had, but were more severe, and continued to increase in frequency and severity until they produced death. One witness, however, a Mr. Sonnen, testified that he was with the deceased from about 8 until about 12 o'clock that night, and that the convulsions were of a different character from those which deceased had previously had. He described the kind of convulsions, and the position which the body of the deceased assumed during the convulsions, and Drs. Red and Knox testified as medical experts that convulsions of the character described by this witness were, in their opinion, produced by strychnine poison. The body of the deceased was exhumed about six months after his death, and a chemical analysis of the stomach failed to show any trace of strychnine.

“The preponderance of the evidence is to the effect that Mrs. Mellott and her husband lived together amicably, though two witnesses testified to the contrary. Two witnesses, a Mrs. Kuhns and a child named Lena Stensil, testified that Mrs. Mellott came to Mrs. Kuhns' home about a week before Mr. Mellott’s death, and sent the child to a drug store some five or six blocks from Mellott’s residence for 25 cents worth of strychnine, which the child purchased, and gave to Mrs. Mellott, who said she wanted it to kill cats with. Mrs. Mellott denied all of this, and denied that she had ever seen the child, Lena Stensil, before the former trial of this case, and the druggist from whom the child claimed to have bought the strychnine testified that he had no recollection of the matter. Shortly after the policy was taken out on the life of Mrs. Jeffers, and while she was living at Mrs. Mellott’s, she had a violent attack of vomiting, which came on just after she had drunk a toddy given her by Mrs. Mellott. Dr. Brumby, who attended Mrs. Jeffers during this attack, testified that she was suffering from an attack of cholera morbus. Drs. Red and Knox did not see the deceased during his last sickness, and their opinion as to the cause of his death is based entirely upon the character of the convulsions as described by the witness Sonnen, who had no technical knowledge nor experience of any kind with sickness of the character of which Mellott died, and who, as before stated, is contradicted by the statements of all the other witnesses who were with Mellott during the night of his death. Dr. McKay diagnosed Mellott’s disease as interitis, or Jacksonian epilepsy, due to the absorption of ptomaine or toxic materials from decomposition of the product of inflammation of the bowels, which produced the convulsions with which Mellott died. Dr. Knox testified that he did not think interitis ever produced Jacksonian epilepsy, and that he knew of no connection between the two diseases. Dr. Red further testified that convulsions could be produced by ptomaine poison caused by bowel trouble; that the physician in attendance on the deceased during his last sickness would be more apt to form a correct conclusion, all of these things coming under his own vision, than any doctor in the world could from a description of the man’s case; and that if this man was first attacked with convulsions on the 6th day of June, and the convulsions continued at various intervals to the 12th, and on the night of the 12th became more violent, and continued at more frequent intervals, until about 5 o'clock on the morning of the 13th, when the patient died in a convulsion, the character of the convulsions not having changed, he would not be so ready to come to the conclusion that the patient died from strychnine poison. He further testified that a man of ordinary constitution would not ordinarily live more than one or two hours after he began to have violent convulsions from strychnine. It was not shown that the deceased had any property or any income out of which he could pay the premiums on his policy, but at the time this policy was issued he gave up $4,000 insurance, which he had previously obtained. Several persons were with the deceased during the entire night on which he died, and there is no evidence that appellee gave him any medicine or anything at all at any time during the entire night, nor that anything was given him by any one, except the chloroform which was administered through the nostrils whenever a convulsion occurred.

“We conclude that the evidence in this case amply sustains the verdict. . . . While there are facts in evidence which tend to cast suspicion upon appellee, they are not of such force and conclusiveness as would, in our opinion, have authorized the jury to have found that appellee administered poison to her husband, and the great preponderance of the evidence is against such contention.

“We find no reversible error in the judgment of the court below, and it is affirmed.”

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Murchison is said case in which it is said, and said again. It is also said that Murchison was the catalyst for the statutory Slayer’s Rule. Murchison is an example of the legal and judicial thinking before the Roosevelt era in which it was thought that the law was the law and must be followed. Later in the century, the Texas Supreme Court was much more flexible, creative, and inventive in finding that what the court wanted the law to be was the law and must be followed. Murchison cites federal Slayer’s Rule common law which has since been ignored by the Texas Courts. That body of law may be applicable today, and should not be ignored. After a statute was passed, in Greer, the Texas Supreme Court mentions that Texas had such a common law. Murchison is a good place to start a search for a Texas common law Slayer’s Rule.

We can’t help but be amused by some of the phrasing in Murchison, so let’s see what said court said in said case.

Murchison v. Murchison 203 S.W. 423 (Tex.Civ.App. - Beaumont 1918)

{May be skimmed or skipped, but this is the case that caused the legislature to enact the Slayer’s Rule statute.}

“This suit was filed in the district court of Angelina county by G. R. Murchison, Dailey Murchison, Ross Murchison, Jr., and Dora Faris, the latter being joined pro forma by her husband, W. B. Faris, as plaintiffs, against Margurite Murchison and Royal Indemnity Company as defendants; the purpose of the suit being to recover a judgment against the Royal Indemnity Company on a policy of accident insurance issued by said company upon the life of one R. H. Murchison.

“It was alleged in the petition that G. R. Murchison was the father, and Dailey Murchison and Ross Murchison, Jr., were the brothers, and said Dora Faris the sister, of the said R. H. Murchison, who, it was alleged, died on the 14th of April, 1915; and it was further alleged that the said Margurite Murchison was the wife of said R. H. Murchison at the time of his death. It was further alleged that the said R. H. Murchison left no outstanding debts at the time of his death, and that there was never any administration upon his estate, nor any necessity for any. It was further alleged that the said R. H. Murchison left no child or children surviving him. It was further alleged that the policy of insurance made the basis of the suit was issued by the Royal Indemnity Company on the 4th day of December, 1914, and was in full force and effect at the time of the death of said R. H. Murchison. It was further shown by the petition of plaintiffs that said policy provided that upon the death of said R. H. Murchison, the proceeds thereof should be paid to the said Margurite Murchison as sole beneficiary. It was further alleged in the petition that the said R. H. Murchison met his death at the hands of his said wife, Margurite Murchison, who feloniously killed and murdered him with the intention and for the purpose of securing and obtaining the money which it was provided by the terms of said policy should be paid to her upon the death of said R. H. Murchison.

“It was then alleged, substantially, that because of the fact that the said Margurite Murchison did feloniously kill and murder the said R. H. Murchison, she forfeited all right and interest that she otherwise might have had in and to the proceeds of said policy of insurance as the beneficiary named therein; and, further, it was substantially alleged that because of the fact that the said Margurite Murchison feloniously killed and murdered said R. H. Murchison, she was not only prevented from claiming and recovering from the Royal Indemnity Company the amount of money stipulated to be paid her as beneficiary in said policy, but also that she thereby forfeited any and all right and interest in and to the proceeds of said policy in the hands of said Royal Indemnity Company, and was not, in law, entitled to have said proceeds or any part thereof under the law of descent and distribution of this state, but that plaintiffs, as the father, brothers, and sister of said R. H. Murchison, by reason of such relationship to him, immediately upon the death of said R. H. Murchison became and were entitled to recover of said Royal Indemnity Company the proceeds of said policy still in its hands, as the heirs and next of kin of the said R. H. Murchison. . . .

“The trial court sustained the general demurrer interposed by each of the defendants, and some of the special exceptions, and the plaintiffs having declined to amend, their petition was ordered dismissed, and from that order and judgment of the trial court this appeal has been prosecuted.

“The action of the trial court in sustaining the general demurrers of defendants has been duly assigned as error in this court, and such assignments and propositions thereunder raise two questions only for the consideration of this court. in so far as we have been able to ascertain, but we are not left in the dark in the matter, because we find that no less eminent authority than the Supreme Court of the United States long ago decided this very question, and the opinion of that great court will be found in the case of New York Mut. Life Ins. Co. v. Armstrong.[7] In that case we find this expression in the opinion of the court:

“ ‘It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired.’

“It has been a long time, it is true, since the Supreme Court of the United States used the language just quoted, but in all the years since then that court seems never to have changed its views on the question. Innumerable cases from that court might be cited, more or less relevant on the point, but it would serve no useful purpose to here mention them, because a decision of the question could not be more squarely made by any court, nor could stronger or sounder reason than is there announced be found.[8] These are but a few of the authorities which announce the rule that it would be against sound public policy to permit any beneficiary in a life insurance policy, who should feloniously take the life of the insured, to recover money due under the terms of the policy; and without discussing the question further, this court is perfectly satisfied with the rule as announced in those cases, and in so far as this court is concerned, nothing short of an express and unmistakable declaration in the Constitution or statutory law of this state, or a decision necessary upon the very point by the Supreme Court of this state, would cause us to subscribe to the doctrine that to permit a beneficiary in any character of insurance policy to recover life insurance money upon the contract itself, after having feloniously killed the insured with the intention and for the purpose of accelerating the due date of such policy and obtaining possession of such money, would not be against the public policy of this state, regardless of what the public policy of some other states may be, as declared by their courts.

“It is the contention of appellees in this case that because article 1, section 21, of the Constitution of this state provides that ‘no conviction shall work forfeiture of estate,’ and because article 2465 of the Revised Statutes of this state provides, substantially, the same, it should be held by this court that the people of this state, both by their representatives in the constitutional convention and in the legislative halls, have declared the public policy of this state to be in favor of permitting such a beneficiary to recover upon the terms of the contract of insurance. We cannot accept the correctness of this contention by counsel. We therefore hold that if the right of Margurite Murchison to the proceeds of the policy in question depended upon the provisions of the policy itself, as a contract, then we would be compelled to hold, and without any reluctance whatever, that the trial court was in error in sustaining the general demurrer of either of the appellees.

“The second question, however, for determination, in legal contemplation is this: Assuming the truth of the allegation in plaintiffs’ petition, to the effect that Margurite Murchison feloniously killed and murdered R. H. Murchison for the purpose of sooner obtaining the insurance money on his life, did that fact deprive her of the right as a surviving wife to take the proceeds of the policy after his death, as against the father, brothers, and sister of R. H. Murchison, the latter having left no child or children? This question necessitates a consideration of several articles of our statutes on the subject of descent and distribution:

Article 2465 provides:

‘No conviction shall work corruption of blood or forfeiture of estate, nor shall there be any forfeiture by reason of death by casualty. * * *’

Article 2469 provides:

‘Upon the dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants of such child or children, then the survivor shall be entitled to one-half of said property, and the other half shall pass to such child or children, or their descendants. * * *

Article 2462 provides:

‘Where any person having title to any estate or inheritance, real, personal or mixed, shall die intestate as to such estate, and shall leave a surviving husband or wife, the estate of such intestate shall descend and pass as follows:

‘1. If the deceased have a child or children, or their descendants, the surviving husband or wife, shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

‘2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution: Provided, however, that if the deceased have neither surviving father nor mother, nor surviving brothers and sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate."

“[T]he proceeds of the insurance policy in question is in the nature of personal property, or constitute personal property. Therefore, since R. H. Murchison died intestate, as disclosed by the petition, and since it is the law that the liability of the insurance company was not canceled, even if the beneficiary, Margurite Murchison, did murder the insured, R. H. Murchison, but since, as we hold, Margurite Murchison, by reason of her felonious act in taking the life of her husband, deprived herself of taking the proceeds of this policy as the beneficiary named therein, then the proceeds of this policy became payable, under the law, to the estate of R. H. Murchison. And since, by article 2462 above, in the absence of any child or children of R. H. Murchison, or their descendants, the whole of the personal estate of R. H. Murchison passed to his surviving wife, Margurite Murchison, she became entitled to the same under the statute itself to the exclusion of the appellants in this case.

“It seems to be held by the courts in all the states that where a statute of descent and distribution is plain and unambiguous in prescribing how property shall descend and vest upon the death of its owner, such statute must be given effect by the courts, regardless of the fact that the death of the owner was intentionally caused by one to whom, under the statute, his property is made to descend and vest, and there can be no doubt that article 2462 is plain and positive, and leaves nothing for construction by the courts as to how property of a decedent shall descend and vest in this state; and while it is to be regretted that the Legislature of this state has never discovered, or if it has, that it has failed to correct this great injustice, as it seems to us, still, in view of the plain provision of the statute quoted, and what seems to us to be an unbroken line of decisions by courts of last resort in other states on the question, we are constrained to hold that Margurite Murchison, even though she did feloniously take the life of her husband for the purpose of sooner collecting the insurance money upon his life, did not forfeit her right thereto, as cast upon her by the statutory law of this state.[9]

“Having reached the conclusion that the appellee Margurite Murchison, upon the death of R. H. Murchison, became entitled to the whole of the personal estate left by him, to the exclusion of the appellants herein, it necessarily follows that there was no error on the part of the trial court in sustaining the general demurrer interposed by each of the appellees and its judgment is therefore affirmed.

* * * * *

Thompson involves self defense as a slayer’s defense and insurance company liability for fees and costs.

{May be skimmed or skipped}

National Life v. Thompson 153 S.W.2d 322 (Tex.Civ.App. - Waco 1941)

Velma Thompson instituted this suit in the County Court at Law of Dallas county on June 15, 1939, against The National Life & Accident Insurance Company, Inc., for the recovery of $200 and statutory penalties alleged to be due her as beneficiary in a policy of insurance on the life of her husband, Era Thompson. Defendant answered on June 30, 1939, with a plea in abatement on the ground that plaintiff had assigned the policy sued upon to one Braswell, and, subject thereto, with general demurrer and general denial. On October 13, 1939, the brother and sisters of the insured filed their plea of intervention, asserting their right to recover the proceeds due under said policy, by reason of their allegation that plaintiff willfully brought about the death of her husband. On October 17, 1939, defendant answered further, alleging that it was unable to determine who was entitled to receive the proceeds due under said policy and that it was paying into the registry of the court the sum of $200 to abide the judgment in the cause, and it prayed that it be dismissed from further liability with its costs.

The case was submitted to a jury on special issues, in response to which they found that plaintiff did not willfully bring about the death of the insured; that a common-law marriage was in existence between plaintiff and the insured at the time of the latter’s death; and that $100 would be a reasonable attorney’s fee for the legal services rendered in prosecuting plaintiff’s case. Thereupon plaintiff moved for judgment on the verdict for principal, interest, attorney’s fee and penalties. Interveners and defendant each presented separate motions for judgment in their favor, respectively, non obstante veredicto. The court rendered judgment in favor of plaintiff and against defendant for the sum of $200, with interest and court costs, and that interveners take nothing. . . .

The defendant Insurance Company complains of the judgment against it for costs, on the contention that it was a mere stakeholder and had paid the funds in controversy into the registry of the court. The record shows that the insured died on June 2, 1938, and thereafter on the same day plaintiff assigned by written instrument all of her interest in the policy to one Braswell, undertaker; that shortly after the funeral of deceased, plaintiff and Braswell called in person on a proper agent of defendant for the purpose of collecting the proceeds due under said policy; that defendant’s agent then offered to pay the sum of $26 in full discharge of its liability, but no more; that on July 18, 1938, counsel for plaintiff addressed a letter to defendant advising that he had been employed to represent plaintiff, that he understood due proofs of loss had been submitted, that his client had assigned her policy, but the assignee desired to release such assignment, and he demanded payment to plaintiff of the full amount of the policy. After plaintiff had filed her suit and after defendant had answered with a general denial, Braswell filed in said cause, on July 11, 1939, a release of his claim and the interveners were then advised by a representative of defendant that they should employ an attorney to intervene in the case on their behalf.

“Defendant asserted in its motion for judgment non obstante veredicto, and again in its motion for new trial, that the findings of the jury on the issues of willful killing and common-law marriage were each without any support in the evidence. There was no evidence showing that defendant ever had any notice of any adverse claim of interveners to the proceeds due under said policy, as provided in art. 4736 of Tex. Civ. St., until the plea of intervention was filed by them on October 13, 1939. Without further statement or discussion, we hold that no reversible error is shown by this record on the action of the trial court in taxing the court costs against defendant. We can not say that the Insurance Company exercised that degree of diligence and impartiality which the law requires in order to secure for itself the benefits conferred upon a mere stakeholder under a proper bill of interpleader.[10]

Interveners assert as their grounds of complaint that (1) the uncontroverted evidence showed the plaintiff willfully brought about the death of the insured and (2) the evidence was insufficient to sustain the finding that plaintiff was the common-law wife of the deceased. The evidence showed that the insured died as the result of stab wounds inflicted upon him by plaintiff, but in our opinion a fact issue was thereby raised as to whether the killing was willful. The trial court instructed the jury that the word ‘willfully’ as used in the charge meant ‘knowingly, intentionally, deliberately or designedly.’ No objection was interposed by any of the parties to this definition. Plaintiff testified at great length to a state of facts, which, if true, showed that she was acting in self-defense as the result of a difficulty provoked by the deceased and that she had been so beaten by her husband at the time when she finally resorted to her knife as a means of protecting herself against threatened death, as to be insensible to any motive other than the primal instinct of self-preservation. She was corroborated in many of the details of her testimony by various witnesses.

“While we are thoroughly in accord with the salutary effect of the wise and just rule of the common-law which forfeits any right of recovery to a beneficiary in a life insurance policy who feloniously takes the life of the insured, and of the kindred rule embraced in art. 5047, of Tex. Civ. St., yet we can not hold as a matter of law on the evidence before us that plaintiff willfully or feloniously brought about the death of the insured within the meaning of the statute or of the common law.[11] . . .

“Plaintiff asserts by cross-assignment her right to recover the additional sum of $100 as attorney’s fees. She bases her claim upon the oral demand which she made shortly after the death of the insured and upon the written demand made by her attorney in his letter of July 18, 1938. The evidence shows without dispute that the assignment which plaintiff executed on June 2, 1938, transferring all of her interest in the policy to the undertaker, Braswell, was promptly filed with the defendant and there was no release of the same until after the demands relied upon had been made. Therefore, even though either of these demands had been otherwise sufficient to serve as a basis for invoking the statutory penalties, plaintiff was not then in a position to demand or receive any part of the proceeds due or to become due under the policy. We conclude that the trial court did not err in refusing to allow plaintiff an attorney’s fee.[12]

Finding no reversible error in the case, the judgment appealed from is affirmed.

* * * * *

The Leading Cases - Greer and Bounds.

Greer is the Texas Supreme Court opinion construing the insurance code Slayer’s Rule and mentioning that Texas common law existed before the statute. Greer is often cited for its view that, to be “willful,” a slaying must be “illegal” in addition to being intentional.

Greer is also important for its holding that a slayer forfeits benefits when acting illegally in a rage brought on by a threat made by the victim. The victim’s action may explain the slayer’s act, but does not excuse it. Self defense is not as easy to prove after Greer. Greer also states that slaying with a knife by “chopping [the victim’s] head and “stabbing [the victim] in the abdomen may “not alone establish [the slayer’s] intent to kill as a matter of law, since a knife is not per se a deadly weapon. . .” Some later litigants and courts seem not to have noticed this aspect of Greer, but the sentiment appears again in Bounds, suggesting that the Supreme Court may be more receptive to lack of intent to kill and an accidental death claim than the intermediate courts.

Greer also is interesting because the slayer had plead guilty to “murder without malice”[13] but had been held by the trial court and the intermediate appellate court not to have violated the Slayer’s Rule. There is no discussion of collateral estoppel. Instead, the guilty plea and conviction appear to be treated as some evidence, but not conclusive on the issue. Recent cases hold that a criminal conviction with the same elements collaterally estops the slayer from denying an intentional, illegal, willful slaying.

Italicized headings have been added within Greer.

Greer v. Franklin Life Insurance 221 S.W.2d 857 (Tex. 1949)

The Case.

“This three cornered controversy relates to ordinary and accidental death benefits under an insurance policy issued by Franklin Life Insurance Company . . . upon the life of James Vaulta Greer, who met death from a knife wielded by his wife Margaret, the latter being the beneficiary named in the policy . . . . The . . . next of kin of the insured, as joint plaintiffs, [asserted] that both kinds of benefits were due by the insurer under the policy, and that the rights of the beneficiary Margaret thereto had been forfeited in their favor by her under Art. 5047, R.C. S., as ‘the principal * * * in willfully bringing about the death of the insured.’ The defendant beneficiary . . . asserted her claim to both classes of benefits, and both she and the plaintiffs also sought interest, penalties and attorney fees against the insurer under Art. 4736, R.C.S. The defendant insurer in answering filed a bill of interpleader admitting responsibility to either plaintiffs or the beneficiary for, and accompanied by a court deposit for, the ordinary death benefits in the sum of $3002.41, and also a similar pleading with respect to the accidental death benefits of $1500, but without tender of this latter sum, for which it denied liability, although seeking determination of ownership as between the rival claimants in the event it should be held liable. In a trial to the court judgment was rendered that plaintiffs take nothing; that [Margaret recover] the $3002.41 regular life benefits, plus attorney fees of $750, penalties and interest; that the defendant insurer have judgment denying liability for accidental death benefits and allowing it attorney fees of $500 in connection with its interpleader. . . .

The statute.

“Art. 5047, R.C.S., was enacted, 1919. Its terms eliminate the interest of the beneficiary in favor of ‘the nearest relative of the insured’ where the beneficiary ‘willfully’ brings about the death of, insured. The principle underlying the statute is nothing novel in Anglo Saxon - or Latin - civil jurisprudence, judicial or legislative.[14] The 1918 decision of the Court of Civil Appeals in Murchison v. Murchison,[15] which may well have been the cause of the enactment, recognized the injustice of allowing the beneficiary to recover on a policy when she had murdered the insured, though refusing to apply the principle so as to give the proceeds to the next of kin in view of our unqualified statutes of inheritance, including Art. 2465, now 2574, R.C.S., forbidding ‘corruption of blood or forfeiture of estate’ as a result of a criminal conviction. While for various policy reasons, including the interest of simplicity, we think Art. 5047 should, generally speaking, be held to restate, rather than merely supplement, the common law to the extent that life insurance policies may be involved (compare Smith v. Todd, supra), it yet seems altogether proper to interpret and apply the article in the light of the common law, as suggested in Art. 10, R.C.S., particularly paragraphs 6 and 8 thereof.

The elements: Intent to kill and Illegality, but not malice.

“So viewed, Art. 5047 is not to be treated as a criminal. or even a civil penalty statute against the, beneficiary. Nor do we think it violates Art. 1, See. 21 of the, State Constitution, which is in the same terms as Art. 2574, R.C.S., referred to in the Murchison case.[16] Hill v. Noland[17] does not require a different conclusion. 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. The word ‘willfully’ in Art. 5047 is all that presents any difficulty in the instant case. As we recently pointed out in Paddock v. Siemoneit[18] the word is far from being one of art in civil jurisprudence, and while it has been said that there is a difference between its meaning in ‘common parlance’ and in the field of criminal law,[19] the latter, to judge from expressions in various decisions of our Court of Criminal Appeals and in texts such as 12 Tex. Jur., Criminal Law, Sec. 34, is at least rather flexible. We agree with the Court of Civil Appeals that, as used in Art. 5047, ‘willfully’ connotes something more than that the beneficiary shall have intended the death of the insured to result from his or her act. Obviously the factor of illegality must also be present. But we cannot agree that the word means in substance ‘maliciously.’ Even in the criminal law decisions it is sometimes said to mean merely that the accused was without legal ground to believe the act to be lawful.[20] Among the common law authorities heretofore mentioned, including the Restatement, the rule is sometimes expressed in terms of the crime of ‘murder,’ and there is some confusion of opinion where the conduct of the beneficiary amounts only to ‘manslaughter.’[21] One of the best considered opinions we have examined on the subject as appertaining to the instant situation is that of the McDavid case last above cited, in which upon a careful review of the authorities, it was held that where the beneficiary intends to kill the insured and the killing is illegal, the beneficiary loses his or her rights under the policy, even though the killing was done under the immediate influence of sudden and violent passion from an adequate cause. We consider that decision a sound expression of the common law.

Not negligence or accident. Intentional and illegal.

“The principle that one shall not profit by his (or her) own wrong has, of course, its limits, as evidenced by the refusal of courts to bar the beneficiary in cases of negligent homicide or ‘Involuntary manslaughter,’ but it seems good policy and not illogical to disregard the too often narrow difference between passion and malice; while on the other hand, as pointed out in the McDavid case, the rule based on intent and illegality as distinguished from malice will properly operate to permit recovery in certain unusual instances, where, for example, the killing of the assured, though legally a murder, was, from the standpoint of the killer-beneficiary, a mere accident.

Margaret’s actions and statements, guilty plea and conviction disqualify her.

“We think it entirely reasonable to interpret ‘willfully’ in the statute to mean the same as the common law test of the McDavid case, and, so doing, conclude that the evidence of the instant case brings the latter conclusively within its terms. While, as would apparently be true in the criminal law, the beneficiary Margaret's stipulation that she killed the insured with a knife, and her admissions on the stand or otherwise that she did it by chopping his head and stabbing him in the abdomen, may not alone establish her intent to kill as a matter of law, since a knife is not per se a deadly weapon,[22] she not only offered no substantial evidence of a lack of deadly intent or of legal justification of her act but expressly admitted it was not done in self-defense or even against resistance on the part of the victim, and that previous to the trial she had pleaded guilty to ‘murder without malice,’ making no suggestion that the circumstances of the plea were such as to give it less than its normal effect. Her statement that she was the object of a vile threat of physical harm from the assured just before she killed him amounts to no more than evidence of adequate provocation to anger, when considered in the light of her further express admission that he gave no indication of being equipped to, or of intending to, carry the threat into execution. Her testimony shows that she was not unversed in the term ‘murder without malice.’ Under our law this type of murder includes as an essential element that the killing be ‘voluntary,’ that is, intentional, in addition to being illegal.[23]

The criminal conviction may, or may not, be admissible, but combines with other evidence to be enough proof. Collateral estoppel is not mentioned, and seems to be doubted.[24]

“Whatever be the rule as to admissibility or effect in a civil suit such as this of a criminal conviction of the crime in issue, we think the wholly unqualified admission of a plea of guilty with the other evidence above mentioned and in the absence of contrary evidence, established intent and illegality as a matter of law. For cases on the subject of admissibility of pleas of guilty in civil suits, see 20 AmJur., Evidence, Sec. '648; 30 Am.Jur., judgments, Sec. 294; 80 A.L.R. 1147, 130 A.L.R. 699.

It wasn’t accidental death under the policy[25] because he threatened her. The insurance company wins. Her defense provides a defense for the insurance company, and the “nearest relative” loses.

“. . . The Court of Civil Appeals . . . correctly held that, under the evidence and presumed findings of the trial court, to the effect that the insured was killed by his wife as a result of a criminal threat made by him, recovery of accidental death benefits was barred by the . . . provision of the rider denying them where his death should result directly or indirectly from a violation of law on his part. This view is entirely consistent with our holding that the beneficiary Margaret killed the insured intentionally and illegally, though doubtless in a fit of rage provoked by the threat.

The insurance company wins the fee, penalty, and interest issues.

“We are further of the opinion that the Court of Civil Appeals correctly held the respondent insurer not chargeable with attorney fees, penalty or interest under Art. 4736, R.C.S., in connection with the judgment of recovery by the beneficiary, Margaret, of the $3002.41 ordinary life benefits paid into court by the respondent insurer, and, that accordingly said respondent is not chargeable with such items in connection with the recovery which we now adjudge to the petitioners, next of kin. Nor do we find error in the allowance of an attorney fee to the respondent on its interpleader.

“. . . [J]udgment is here rendered that [Margaret] take nothing, . . . [the] next of kin. . . recover. . . $3002.41 . . . {less the sum of $500.00 awarded [the insurance company]. . . as an attorney's fee. . .}[26] In all other respects the judgment of the Court of Civil Appeals is affirmed.”

* * * * *

Greer and Bounds show that accidental death can be asserted in Slayer’s Rule cases. Deaths may result from an accident in the midst of a struggle, or even when administering CPR. Sometimes the facts are extraordinary. Consider the facts of the following Arizona slaying. 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 or receipt of insurance benefits? 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 that a child is so lacking in mental capacity that “intent” to kill Mom is not possible? This is a great example of the influence of jury an judge appeal. This is not an appealing slayer. It would not be easy for the slayer to win, even if the slaying itself was really accidental.

Man convicted of killing mom for not paying for female escort[27]

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.

* * * * *

There is some overlap between cases on the insurance Slayer’s Rule and cases on the Slayer’s Rule with respect to other assets. Some issues that apply to the insurance Slayer’s Rule do not apply to the Slayer’s Rule with respect to other assets while other issues apply to both concepts. YouKnowItAll.com has separated the material into two courses. Bounds is a leading case for both the insurance Slayer’s Rule and the Slayer’s Rule on other assets. It is included in the text for both courses, although the teacher’s footnotes and comments are somewhat different. If you have taken the other course, you may wish to skim or skip Bounds in this text.

* * * * *

Bounds involved a misdemeanor nolo contendre plea to negligent homicide, with 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. Mr. Bounds argued that the Probate Code trumps the Insurance Code. The court doesn’t address this argument effectively. Consider that insurance with a named beneficiary is not a probate asset. Does the Probate Code govern it? Why is it mentioned in Probate Code §41(d)? Does §41(d) have any effect on insurance benefits? If so, why? What is the effect? If there is no effect, why not? Does a constructive trust have any applicability to insurance proceeds? If so, what effect? If not, why not? Why doesn’t the Supreme Court in Bounds, explain the effect of §41(d) and how it fits with article 21.23 of the Insurance Code?

Bounds v. Caudle 560 S.W.2d 925 (Tex. 1977)

“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. . . . 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. . . . We reverse the judgments of the lower courts and remand the cause to the trial court for a new trial.[28]

“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. . . .

“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 [29] that the killing was committed without intent, it is settled law that the judgment in the criminal case was not binding[30] upon the court in the civil proceeding.[31] This rule is particularly applicable here where the conviction was based upon plea bargaining.[32]

“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.[33] 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. 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.

“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.[34]

“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.[35] 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[36] and Sias v. State.[37] 3[38] 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.[39]

“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.[40]

“We are required to apply the "no evidence" test in determining whether the requested instruction was required to be submitted to the jury.[41] 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. . . .”

* * * * *

Out of Bounds -The Retrial

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.[42] . . .

“. . . 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.”

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The Supreme Court takes the wrong turn

at the nearest relatives or contingent beneficiary fork.

{May be skimmed or skipped.}

In Deveroex, over a vigorous dissent, the court construes the provision in the Slayer’s Rule statute which provided that the death benefit goes to the nearest relative as meaning that it goes to the designated contingent beneficiaries. Some might think that the Texas Supreme Court lost its mind. Actually, the Texas Supreme Court seems to have decided that about a decade later when it overrules Deveroex. Deveroex was the law of Texas from the time it was published until the time it was overturned. During that time, courts followed Deveroex in reported decisions, and unknown numbers of unreported or unlitigated cases were resolved on the basis of Deveroex.

Deveroex is an interesting wrong turn, but it may be skipped or skimmed by those who wish to do so.

Deveroex v. Nelson 529 S.W.2d 510 (Tex 1975) [Overruled in Crawford v. Coleman 726 S.W.2d 9 (Tex. 1987)]

{May be skimmed or skipped}

“This is an heirship proceeding arising from an allegation of adoption by estoppel. At stake are the proceeds of four life insurance policies issued on the life of the father. The claimants of these proceeds are the guardian for the estate of the decedent’s natural son, petitioner here, and the allegedly adoptive son, respondent. The trial court rendered judgment on a jury verdict that an adoption by estoppel had occurred and that the adoptive son would share the proceeds of the life insurance policies equally with the natural son. The court of civil appeals reformed the trial court judgment to reflect that the adoptive son would receive the entire proceeds of one of the insurance policies and, as reformed, affirmed.[43] We affirm the judgment of the court of civil appeals.

“In 1950 Cain H. Nelson, Jr., while serving in the United States Navy, met Helen A. Whitehead. At that time, Helen already had a four-year-old son named Zan, who was born out of wedlock. Cain and Helen were married in 1952 while still in Virginia. After living in Virginia for approximately one year following the marriage, the family moved to Houston where a natural son, Edwin H. Nelson, was born in 1959.

“Testimony at the trial and the jury’s answers to special issues established that Helen agreed to marry Cain and move to Houston with him after his discharge from the Navy on the condition that he would adopt Zan. The jury found that Cain verbally agreed to adopt Zan. The jury also found that after the marriage Zan was treated as the adopted son of Cain, although formal adoption proceedings were never instituted.

“In 1967 Helen Nelson murdered Cain who died intestate. Helen was convicted and sentenced to a term in the Texas Department of Corrections. She has disclaimed any interest in the subject matter of this case.

“Cain Nelson was covered by four life insurance policies, all four designating Helen as the primary beneficiary. The first two policies, written by Prudential Insurance Company of America, were for the sum of $18,769.51 and named ‘Zan Nelson, stepson of the insured and all children born of the marriage of the insured and said wife’ as contingent beneficiaries. The third policy, written by Metropolitan Life Insurance Company, was for $14,000 and provided that the child or children of the deceased were contingent or secondary beneficiaries. The fourth policy, written by First Financial Life Insurance Company, was for $7,863.38 and named Zan, whose relationship on the application was said to be son,’ the sole contingent beneficiary.

“After Cain’s death an administration for his estate was filed in the probate court of Harris County. In that proceeding Zan filed an application for determination of heirship, claiming to be the adoptive son of Cain by estoppel. The probate court sustained Zan’s claim. Ruby Lee Nelson Deveroex, guardian of the estate of the natural son, Edwin, appealed that matter to the district court.[44]

“The three life insurance companies which had issued the policies on Cain’s life filed interpleader suits in the district court which were subsequently consolidated with the matter being appealed from the probate court. After trial to a jury, the trial court entered judgment on the verdict that Zan Nelson was the adopted son of Cain Nelson; that Zan Nelson and Edwin H. Nelson were the only heirs of Cain Nelson; that all life insurance proceeds were to be divided equally between Zan and Edwin; and that all court costs, including an Ad litem attorney’s fee for the unknown heirs of Cain Nelson, were to be taxed against the guardian of the estate of Edwin Nelson.

“The guardian of the estate of the natural son appealed to the court of civil appeals. That court reformed the trial court judgment as it related to the insurance proceeds ($7,863.38) from the First Financial Life Insurance Company policy by awarding all of the proceeds from this policy to Zan and, as reformed, affirmed.[45] In affirming, the court of civil appeals held that the evidence supported the jury finding that the requisites of an adoption by estoppel were present; that the doctrine of adoption by estoppel was applicable even though the agreement to adopt was entered in Virginia, a jurisdiction that does not recognize the doctrine; and that the assignment of error of the guardian regarding the taxing of costs was overly broad and thus ineffective to preserve the point for appeal. We agree with the holdings of the court of civil appeals on these aspects of the case.

“This writ was granted to consider the effect of Texas Insurance Code Annotated, Article 21.23 on the disposition of insurance proceeds when a contingent beneficiary has been named in the insurance policy. Article 21.23 states:

‘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 said insurance.’

“At issue are the proceeds from the First Financial Life Insurance Company policy which named Zan, whose relationship on the application was said to be ‘son,’ as the sole contingent beneficiary. The trial court awarded the proceeds of such policy to Zan and Edwin to be shared equally, apparently construing Article 21.23 to mean that the ‘nearest relative’ receives the insurance proceeds if the primary beneficiary is precluded, by killing the insured, from receiving the proceeds. The court of civil appeals, modifying the trial court judgment, held that Zan is entitled to the entire proceeds of the First Financial policy as sole contingent beneficiary under the policy, notwithstanding Article 21.23.

“Petitioner, the guardian of Edwin’s estate, contends that the court of civil appeals erred in holding that the proceeds of the First Financial policy should be distributed to Zan as the sole contingent beneficiary rather than to Cain’s nearest relative pursuant to Article 21.23. Petitioner further contends that Zan, the allegedly adopted child, is not a nearest relative of Cain within the meaning of Article 21.23. We do not reach the latter contention because we agree with the court of civil appeals.

“Petitioner relies on Drane v. Jefferson Standard Life Ins. Co.[46] for the proposition that the contingent beneficiary possesses no rights in the insurance proceeds while the primary beneficiary is living. Thus, petitioner argues that Zan obtained no rights in the First Financial policy proceeds because Helen was alive. Petitioner’s reliance on Drane is misplaced. In Drane the primary beneficiary was alive and eligible to receive a monthly payment from the insurance proceeds. The contingent beneficiary sought an adjudication that he would receive the monthly payment, if any were left, after the primary beneficiary’s death. The court held that such a judgment would be premature because the primary beneficiary was still alive and because the contingency might never arise. Unlike the Drane case, the instant case concerns a primary beneficiary who is ineligible to receive the insurance proceeds and the question presented is to whom should such proceeds be distributed. An adjudication of the contingent beneficiary’s rights in the instant case is not premature.

“Petitioner also argues that Zan has no right to the insurance proceeds under a strict reading of the policy terms. The First Financial policy provides that the proceeds should be paid to the primary beneficiary, ‘if living,’ otherwise to the contingent beneficiary. 1[47] Petitioner concludes that Zan’s right to the proceeds did not vest because Helen, the primary beneficiary, was still alive. A similar question was considered in Williams v. Williams.[48] In that case the insurance policy provided that the contingent beneficiary (the insured’s son) would receive the proceeds if the primary beneficiary (the insured’s wife) was not living. The insured and his wife were thereafter divorced. The insured’s ex-wife, the primary beneficiary, was held to be disqualified to receive the insurance proceeds because she lacked the required insurable interest. Since the insured’s ex-wife was still alive, the question arose whether the proceeds should pass to the insured’s son, who was the contingent beneficiary, or to the estate of the insured. The court, looking to the intent of the insured, held that the proceeds should pass to the insured’s son. We prefer the rationale of the Williams decision which effectuates the intent of the insured.

“The application of Article 21.23 is considerably more difficult. We are persuaded, however, by the reasoning of the court of civil appeals that ‘(t)he language of section 21.23 does not suggest the intention of the legislature to forfeit the right of a guiltless named beneficiary.’[49] Such construction not only effectuates the obvious intent of the insured, which he evidenced by designating a contingent beneficiary, but also effectuates the essential legislative objective of Article 21.23, to provide for the exclusion from the policy proceeds of an individual who is a principal or an accomplice in bringing about the death of an insured. The legislative purpose in writing the second sentence of Article 21.23 was merely to exclude the insurance proceeds from the insured’s estate and thereby prevent the murderer from receiving such proceeds as an heir of the decedent’s estate.[50]

“Accordingly, we would distribute the insurance proceeds to the nearest relative of the insured under Article 21.23 only if All of the beneficiaries, primary and contingent, are disqualified from receiving such proceeds. Since Zan is not disqualified, we hold that the proceeds of the First Financial policy should be distributed to him rather than to Cain’s nearest relative pursuant to Article 21.23.

Justice Daniel dissented in an opinion in which Justice Denton, joined.

“I disagree with that part of the Court’s opinion which permits Zan Nelson, the adopted son of the insured, to recover all of the proceeds of the First Financial policy as a secondary beneficiary instead of sharing the proceeds equally with Edwin Nelson, the insured’s natural son, as nearest relatives of the insured in accordance with Article 21.23 of the Texas Insurance Code.

“The holding is contrary to the plain words of both the insurance policy and the statute. The insurance contract provides that the secondary beneficiary shall receive the proceeds only if the primary beneficiary (Helen Nelson) is not living. However, Helen Nelson is still living. The policy is silent as to who shall take thereunder if the primary beneficiary is living but disqualified because she willfully killed her insured husband. Article 21.23, however, contains a specific provision for payment of insurance proceeds under such circumstances. It reads:

“The above article is as much a part of the insurance contract as if it had been incorporated in the policy.[51] The rights of parties to contract with respect to insurance are limited by state laws which are a part of every contract.[52]

“In the absence of a statute to the contrary, one Texas decision cited by the majority 1[53] and several from other states have permitted recovery by a secondary beneficiary while a disqualified primary beneficiary was still living.[54] None of these cases involved a statute such as Article 21.23, and I have found no decision, and none has been cited, in which a court has heretofore permitted insurance proceeds to go either to a secondary beneficiary or to the insured’s estate when a statute directs payment to the nearest relatives.

“Two Texas cases have dealt with Article 21.23 and applied its terms when contrary to those in the insurance policies. In Greer v. Franklin Life Ins. Co.,[55] this Court related some of the history of the statute; held that it did not violate the constitutional provision forbidding 'corruption of blood or forfeiture of estate' as the result of a criminal conviction; and decided that insurance proceeds should go to the insured’s next of kin rather than to the named beneficiary who willfully killed the insured.

“In Farmers & Merchants State Bank v. Helton,[56] the policy provided that if the beneficiary was not living the proceeds would vest in the insured’s estate. The beneficiary having willfully killed the insured, the Court applied Article 21.23, holding that the nearest relatives of the deceased would be the only ones entitled to receive the proceeds of the insurance policy and that the creditors of the deceased’s estate would have no claim thereto.

“The Supreme Court of Wyoming considered a statute similar to Article 21.23 in Dowdell v. Bell,[57] wherein it was held that the plain language of the forfeiture statute controls over language contained in an insurance policy and that the proceeds would therefore be payable to the persons designated by the statute rather than the contingent beneficiary named in the policy.

“The Helton and Dowdell decisions are not mentioned in the majority opinion or the opinion of the Court of Civil Appeals. I think they are well reasoned and should be followed here instead of attempting to find what the intent of the insured would have been if he had known his wife was going to kill him.

* * * * *

Crawford - More Than Intentional

{May be skimmed or skipped}

Crawford is a lightning rod for criticism. The court of appeals follows Deveroex. In the Supreme Court opinion in Crawford, the Supreme Court overrules Deveroex, saying that it has no idea what it was thinking in Deveroex. In Rumbaut v. Labagnara, Houston’s 14th Court of Appeals says it has no idea what the Ft. Worth court was thinking in Crawford. Crawford involves a corny claim of self defense when two married government employees became agitated, had a little quarrel and spilled a lot of blood. In Crawford, the son of the slayer is the stepson of the victim and the contingent beneficiary of the insurance.

The Slayer’s Rule litigation went to trial before the criminal case was fully resolved, forcing the slayer to choose whether to testify, with the testimony available to use against him in his criminal proceeding, or not testify, and therefore not be able to fully defend the Slayer’s Rule case.[58] The insanity defense is not mentioned. Consider whether self defense and temporary insane defensive acts could coexist and whether self defense and temporary insanity, or at least lack of intent, would be an appropriate strategy. And, remember the glimmer of hope that Greer offers slayers. Slaying by stabbing and chopping with a knife does not necessarily indicate the intent to kill. The Fort Worth Court of Appeals sees these multiple stab wounds as adequately suggestive of intent to kill.

The facts in Crawford are more lucid than the jury instructions or the discussion of the law.

Crawford v. Coleman 701 S.W.2d 79 (Tex.App. - Ft. Worth 1985)

{May be skimmed or skipped}

“Cornelius Shoaf appeals a judgment denying him insurance proceeds because a jury found he willfully caused the death of his wife, the insured. The wife’s parents appeal that portion of the judgment which awarded some insurance proceeds to a stepson of the wife.

“Judgment affirmed.

“We will first address the appeal presented by Cornelius Shoaf. Cornelius was an employee of the State of Texas; his wife, Sandra, was an employee of Tarrant County, Texas. Four life insurance policies were in force at the time of Sandra’s death. The policies named Cornelius primary beneficiary. The insurance companies filed an interpleader naming the parties to this suit and paid the insurance proceeds into the registry of the court. Upon the trial of the cause, the jury found Cornelius had willfully caused the death of Sandra. The trial court then found that Cornelius had forfeited his right to receive the insurance proceeds under TEX.INS.CODE art. 21.23 which states:

“Cornelius presents three points of error. His first point contends error of the trial court in failing to submit to the jury his requested instruction regarding self-defense.

“The following instruction was requested by Cornelius and refused:

When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with unlawful deadly force, and there is created in the mind of such person a reasonable expectation of fear of death or serious bodily injury, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary (viewed from his standpoint at the time) to protect himself from such attack or attempted attack.

“The trial court submitted one issue to the jury which inquired if Cornelius willfully brought about the death of Sandra. The following definition was given:

“As used in this charge, ‘willfully’ means:

more than intentional[59] conduct which results from momentary thoughtlessness, inadvertence or error of judgment. It means an act or conduct committed without justification which demonstrates such an entire want of care as to indicate that the act or conduct complained of was the result of conscious indifference to the rights, safety, or welfare of the persons affected by it.

“TEX.R.CIV.P. 277 generally provides in part that the trial judge shall submit causes on special issues and shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict. Considerable discretion is given to the trial court in determining what instructions are necessary and proper in submitting issues to the jury.[60]

“Cornelius contends the issue of self-defense was raised in the instant case because of severe wounds to his hands and arms apparently caused by being cut with a knife; that the wounds occurred in the home of Cornelius and Sandra and were characterized as defense wounds by the medical examiner.

“There was no direct testimony as to what actually occurred on the night of Sandra’s death. Sandra’s sister and brother-in-law had visited Sandra and Cornelius on the night of her death and left about 11:00 p.m. The sister returned to Sandra’s home about an hour later. Apparently a struggle had occurred between Cornelius and Sandra with each being wounded by a butcher knife which was found in their home. Sandra was found in the kitchen of the home with twenty to thirty stab wounds to her chest, numerous wounds to her head, some teeth apparently knocked out, a stab wound to her cheek, a severe wound to the back of her head, and her right ear was cut. Cornelius was found the next morning asleep in the closet of a house nearby which was under construction. He was wearing only his shorts and socks; his blood soaked blue jeans were found in his home. Cornelius refused to answer any questions on the ground that the answers might tend to incriminate him.

“We hold the evidence did not support an instruction on self-defense. There was only one knife used in the incident. Viewing the evidence in the very best possible light from Cornelius' viewpoint and engaging in supposition, Sandra assaulted him with the knife without provocation. In attempting to defend himself, Cornelius was successful in wresting the knife from Sandra, but suffered severe injuries to his hands and arms in doing so. At this point, Cornelius’ contention fails. Was it then necessary[61] in order to defend himself to take the attack to Sandra--causing her to suffer a severe blow to the back of her head, knocking out some of her teeth, cutting her right ear, and stabbing her at least twenty or thirty times? We hold that there is no supposition that would warrant the infliction of such wounds on Sandra on the theory that they were a necessary part of Cornelius' actions in defending himself. The trial court did not err in refusing to give the requested instruction on self-defense. In addition, the definition given by the trial court stated in effect that in order to find that Cornelius willfully brought about the death of Sandra, the jury must find it was done without justification. Such an instruction permitted Cornelius to argue that the wounds inflicted on Sandra were justified--essentially the same as the self-defense theory.[62] Mindful of the discretion vested in the trial court in the submission of special issues and instructions,[63] there was no error in the manner in which the issue and instruction were submitted. Appellant’s first point of error is overruled.

The following portion of the Crawford opinion is not a Slayer’s Rule analysis as such, but is an indication that, if you butcher someone, you might not get any breaks from the trial or appellate courts. The court has an interesting analysis on probabilities. If something occurs 15 times and the result is always X, the court thinks that it should be obvious that, when the same thing occurs the 16th time, the result will be Y.

“In his second point of error, appellant contends the trial court erred in failing to grant his first motion for continuance which prevented him from being able to assist his attorney in selecting a jury.

“Appellant filed a motion for continuance on April 24, 1984. In the motion he urges as reason the fact that his criminal action is still on appeal and he cannot intelligently determine whether to testify. He also states that the case was set for April 24, 1984; his attorney was notified at 3:00 p.m. on such date that the trial would commence at 9:00 a.m. on April 25, 1984; Cornelius was contacted at 6:30 p.m. on April 24, 1984, but would be unable to travel from Houston to Fort Worth in time for the trial.

“The granting or denial of a motion for continuance is within the discretion of the trial judge, and the denial of such motion will not be disturbed on appeal unless there is an abuse of such discretion.[64]

“We note that this case was filed on September 9, 1980. According to notations on the docket sheet, the case was set for trial on fifteen occasions prior to the April 23, 1984 setting. The age of the case should have been an indication to appellant that there was a good probability of the case being reached for trial. The record does not disclose why appellant could not travel from Houston to Fort Worth between 6:30 p.m. on April 24, 1984, and 9:00 a.m. on April 25, 1984; neither does the record show that any harm resulted from appellant’s absence during the jury selection process. The record does show that appellant was called as the first witness in the case and apparently had been present during the opening statements of the attorneys. Under these circumstances we hold there was no abuse on the part of the trial court in overruling appellant’s motion for a continuance. Appellant’s second point of error is overruled.

“Appellant’s third point of error complains of the definition of "willful" in the court’s charge; that such definition failed to place a proper burden on appellees and permitted them to recover upon a lesser showing of culpable fault than required by law; that his objections to the charge should have been sustained.

“We set forth in full appellant’s objections to the charge:

“Mr. Cocanower, does the Defendant have any exceptions or objections?

“MR. COCANOWER: Yes, Your Honor, he does.

“Comes now the Defendant Cornelius Shoaf and objects and excepts to the Court’s charge submitted to in this day and would respectfully show to the Court that the Supreme Court of the State of Texas has defined willfulness in Greer vs. Franklin Life Insurance as something more than shall have intended the death of the insured but something less than malicious having the factor of legality involved. The use of the words ‘momentary thoughtfulness, inadvertence or error of judgment’ in conjunction with the word ‘intention’ lowers this threshold standard of intentional to something more than mere negligence, thereby lessening the burden of proof upon each of the Plaintiffs in this cause.[65]

“Secondly, we would suggest that the words, ‘momentary thoughtfulness, inadvertence or error of judgment,’ be deleted from the definition of "willfulness" as presented in the Court’s charge.

“Thirdly, Mr. Shoaf would object to the exclusion from the charge of a definition of self-defense to further define the word ‘without justification’ as used in the Court’s charge in substantially the form submitted to the Court and with leave of this Court submit the same in writing before the argument to the jury in the morning.

“Defendant would show unto the Court that the rebuttal of self defense has been raised by the evidence, both by the medical records which demonstrate the nature, extent and severity of Mr. Shoaf’s injuries, including bruises, contusions, lacerations, two fingers almost severed from his body, together and combined with the testimony of the Plaintiffs’ own witness about the defensive wounds that were sustained by Mr. Shoaf, that that is sufficient evidence entitling Mr. Shoaf to this instruction.

“We will submit such instructions substantially in the form presented to the Court this day, in the morning.

“Further Defendant says naught.[66]

“THE COURT: Thank you, Mr. Cocanower.

“Defendant’s objections and exceptions are overruled.

“Appellant subsequently presented to the court his requested definition of self-defense as previously set forth in this opinion. Such requested definition was refused.

“We have previously disposed of appellant’s contention that his definition of self-defense should have been given. In reviewing his assertion that the words ‘momentary thoughtfulness (sic), inadvertence or error of judgment’ should be deleted from the definition, if such deletion were made, in effect, it would result in the deletion of the first sentence which states in effect that willful conduct is something more than mere negligent[67] conduct. Such a statement is correct and is properly placed in the definition complained of. Appellant’s third point of error is overruled.

Does the slayer’s son get the money?

“We now turn to the appeal presented by Sandra’s parents, the Crawfords. The Crawfords appeal that part of the judgment awarding the proceeds of two policies to Martha Shoaf Coleman, as next friend of Cornell Warren Shoaf, a minor. Cornell Warren Shoaf is the son of Cornelius by a prior marriage.

“The policies in question are Equitable Life Assurance Society Policy No. 78 227 787 and Metropolitan Life Insurance Co. Policy No. 28500-G.

“The Equitable policy is a family plan type which insured the lives of Cornelius, Sandra, and Cornell. That portion of the policy covering the life of Sandra and Cornell provides:

Beneficiary: The beneficiary arrangements specified in the Family Plan Insurance provision will apply unless otherwise designated in Special Instructions (in any such designation include Full Name and Relationship to Insured).

“The Family Plan Insurance provides under the heading ‘Beneficiary Under This Provision:’

Family Member Beneficiary

The Insured Spouse The insured, if living:

if not living, the surviving

children of the insured.

“The Metropolitan Life policy was a group policy available to Cornelius as an employee of the State of Texas. The policy provided for coverage of dependents as follows:

Eligible Dependents

“A. The following dependents shall be eligible for coverage:

1. Your spouse.

2. Any unmarried child under twenty-five (25) years of age including (a) an adopted child, (b) a stepchild, foster child, or other child who is in a regular parent-child relationship

“The policy provides the following under the heading ‘Payment of Benefits’:

Upon receipt of due proof of your death, while you are insured under the Group Policy, Metropolitan will pay the amount of insurance then in force on your life to the person or persons surviving at the date of your death in the following order of precedence:

First, to the beneficiary or beneficiaries designated by you on a signed and witnessed form received before death in your employing office. For this purpose, a designation change or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.

Second, if there is no designated beneficiary, to your widow or widower.

Third, if none of the above, to your child or children and descendants of deceased children by representation.

Fourth....

“Sandra’s parents, the Crawfords, argue that under TEX.INS.CODE art. 21.23, when the beneficiary willfully brings about the death of the insured, then the policy proceeds should be paid to them, as Sandra’s nearest relatives. The Crawfords acknowledge that there is an exception to that rule as pronounced in Deveroex v. Nelson,[68] but contend that Deveroex does not apply in the instant case. Deveroex involved a situation where the insured was killed by his wife, the primary beneficiary. The wife disclaimed any right to the policy proceeds. The policy in question named Zan Nelson, ‘son,’ as sole contingent beneficiary. Zan was not the natural son of the insured; he was a stepson who the jury found had been adopted by estoppel. After their marriage, the insured and his wife had a natural son; the guardian of the estate of the natural son contended that the two sons, natural and adopted, should share the policy proceeds as next of kin under art. 21.23. The court held Zan, the adopted stepson, was entitled to the entire policy proceeds; that the legislature did not intend to forfeit the right of a guiltless named beneficiary; that the intent of the insured was effectuated by such holding; and that the legislative intent of art. 21.23 was to exclude the insurance proceeds from the insured’s estate and thereby prevent the murderer from receiving such proceeds as an heir of the decedent’s estate.

“There is a notable difference between Deveroex and the instant case. In Deveroex the insured designated a specific individual as the contingent beneficiary and described his relationship as ‘son.’ In the instant case, the policies in question have printed provisions providing for the contingent beneficiaries according to relationship. This presents the question of whether such printed provisions provide for named beneficiaries as was considered in Deveroex. Each policy provides for the designation of contingent beneficiaries. The Equitable policy designates Cornelius, if living, as beneficiary, if not living, then to the surviving children (Cornell) of the insured (Cornelius is the insured in the Equitable policy; Sandra is the insured spouse). Since the policy gives the right to designate others than those specified as beneficiaries, it is proper to assume that Sandra intended for the proceeds to be paid as specified. We hold that the printed beneficiary provisions of the Equitable policy constitute named beneficiaries under Deveroex.

“The Metropolitan policy presents yet another consideration. This policy was afforded to Cornelius because of his employment by the State of Texas, and authorized by the Texas Employees Uniform Group Insurance Benefits Act, TEX.INS.CODE art. 3.50-2. It is noted that Sandra’s life was insured under this policy as a family member at the option of Cornelius. However, the policy does not give Sandra the right to specify beneficiaries other than through Cornelius. Cornelius did not elect to name beneficiaries of that portion of the policy insuring Sandra’s life and apparently the printed provisions designating such beneficiaries suited him. Under such printed provisions, Cornelius was the primary beneficiary; he is disqualified under sec. 21.23; the next contingent beneficiary is the child or children of the employee--in this case Cornell. For the same reasons as discussed in the Equitable policy, we hold the printed provisions in the Metropolitan policy designating beneficiaries are named beneficiaries under Deveroex.

“The trial court did not err in awarding the proceeds of the Equitable policy and the Metropolitan policy to Cornell, the son of Cornelius. The Crawfords’ points of error are overruled.

“Judgment affirmed.”

* * * * *

When Crawford reached the Supreme Court, only the contingent beneficiary issue is considered. Will the fact that the contingent beneficiary is the slayer’s son who is not a blood relative of the deceased influence the court?

Could the Crawfords argue that Deveroex was wrong, or would that be groundless and sanctionable as those concepts are viewed by some appellate courts in sanctions opinions contained in this text?

Crawford v. Coleman 726 S.W.2d 9 (Tex. 1987) [Overruling Deveroex]

{May be skimmed or skipped}

“This is an insurance disqualification case involving the distribution of proceeds of life insurance policies. The trial court disqualified the primary beneficiary under the policy and awarded the proceeds to the contingent beneficiaries. The court of appeals affirmed.[69] We reverse that part of the court of appeals judgment awarding proceeds to one of the contingent beneficiaries and render judgment for Phynies and Flora Crawford.

“On May 14, 1979, Sandra Shoaf was stabbed to death by her husband, Cornelius Shoaf. Sandra’s life was insured under four insurance policies, each designating Cornelius as the primary beneficiary. The trial court disqualified Cornelius from receiving Sandra’s death benefits because the jury found that Cornelius willfully caused Sandra’s death. The contingent beneficiaries under the policies are Sandra’s parents, Phynies and Flora Crawford (the Crawfords) and Sandra’s stepson, Cornell. Cornell is Cornelius’s son by a prior marriage. Martha Coleman is Cornell’s mother.

“After disqualifying Cornelius, the trial court awarded the proceeds of two of the four policies to the Crawfords as the contingent beneficiaries under those policies. Those proceeds awarded to the Crawfords are not a part of this appeal. The trial court also awarded the proceeds of the remaining two policies, Equitable Life Insurance Society of the United States policy No. N 78 227 787 and Metropolitan Life Insurance Company policy No. 28500-G, to Cornell Shoaf as the contingent beneficiary.

The court of appeals affirmed the trial court’s judgment. The Crawfords dispute the award of the benefits of these two policies to Cornell.

“The Equitable policy named Cornelius Shoaf as the ‘insured,’ and Sandra as the ‘insured spouse’ under a family plan of insurance included in the policy. The preprinted language of the policy provides that the ‘beneficiary’ of the insured spouse is ‘the insured, if living; if not living, the surviving children of the insured.’

“The Metropolitan policy was obtained by Cornelius Shoaf through his employment with the State of Texas as authorized by the Texas Employees Uniform Group Insurance Beneficiary Act, TEX.INS.CODE art. 3.50-2. Sandra’s life was insured under this policy at Cornelius’s option. The preprinted beneficiary designations in this policy awarded proceeds at the insured’s death to the insured’s beneficiary, then to the insured’s spouse, then to the insured’s children, and then to the insured’s parents.

“It is undisputed that the distribution of these policy proceeds is governed by TEX.INS.CODE § 21.23. Section 21.23 states:

The interest of a beneficiary in a life insurance policy or contract heretofore or hereinafter 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 said insurance.

“In construing § 21.23, this court has said that insurance proceeds are distributed to the nearest relative of the insured only ‘if all of the beneficiaries, primary and contingent, are disqualified from receiving such proceeds.’[70] In Deveroex, the primary beneficiary murdered the insured. We construed § 21.23 as directing distribution of the proceeds to the insured’s adoptive son who was a designated beneficiary under the policy rather than awarding the proceeds to the adopted son and the insured’s natural son who was not designated as a beneficiary.

“The Crawfords argue that the proceeds of the Equitable policy and the Metropolitan policy covering Sandra’s life are distributable to them because they are Sandra’s ‘nearest relative’ upon Cornelius’s disqualification. The Crawfords read Deveroex as directing proceeds to the contingent beneficiary only when the contingent beneficiary is expressly named and is an object of the deceased insured’s obvious intent. Cornell argues that he should receive the proceeds because he is the contingent beneficiary under these policies, and distribution to the nearest relative is not triggered until all beneficiaries are disqualified. We agree that the Crawfords should receive the proceeds on Sandra’s life, but for reasons different than those offered by the Crawfords. 1[71]

“It is undisputed that Cornelius has forfeited any interest in the proceeds because he willfully brought about Sandra’s death.[72] Sandra is the ‘insured’ under § 21.23. Affidavits signed by the Crawfords indicate they are Sandra’s nearest relatives.

“In Deveroex, we reasoned that distributing insurance proceeds to the nearest relative only if all beneficiaries were disqualified effectuated both the obvious intent of the insured and the legislature’s objective to deny proceeds to the individual responsible for the insured’s death. Upon review, we find our reasoning no longer persuasive.[73]

“As Justice Daniel stated in his dissent, our holding was contrary to the plain words of the statute.[74] [75] Justice Daniel correctly reasoned that § 21.23 contains a specific provision for payment of insurance proceeds when a beneficiary willfully causes the death of the insured. The specific provision directs payment of proceeds to the nearest relative. The fact that the legislature chose to withhold proceeds from the beneficiary/killer does not mean that the legislature intended that the nearest relative would succeed to the proceeds only upon the disqualification of all beneficiaries. Moreover, § 21.23 is:

as much a part of the insured’s contract as if it has been incorporated in the policy.[76] The rights of parties to contract with respect to insurance are limited by state laws which are a part of every contract.[77] [78]

“Our reasoning that the Deveroex distribution scheme effectuates the obvious intent of the deceased is also incorrect. In Deveroex, we said the insured’s ‘obvious intent’ was evidenced by the designation of the contingent beneficiary. When a beneficiary willfully causes the death of the insured, however, we are confronted with a situation where reasonable people would not form an intent regarding the distribution of the proceeds. We may safely presume that neither Sandra, Cornelius, the Crawfords, nor Cornell envisioned the circumstances of Sandra’s death when the policies were obtained.

“It is clear that the legislature has deliberately chosen to direct the manner in which the benefits are awarded. The practice, as dictated by Deveroex, of beginning our inquiry under the statute, moving into the policy once a beneficiary is disqualified, and then moving back under the statute once we determine no qualified beneficiaries are present, is inconsistent with the explicit language of § 21.23. Instead, by following the language the legislature employed, the inquiry begins, proceeds, and ends under § 21.23. We, therefore, overrule our interpretation of § 21.23 in Deveroex v. Nelson,[79] and hold that when any beneficiary under a life insurance policy willfully causes the death of the insured, the policy proceeds are distributed to the nearest relative of the insured.

“We recognize that other jurisdictions have reached a different result on somewhat similar statutes and facts.[80] Moreover, we are aware that Cornell was in no way involved in Sandra’s death. Today’s opinion is not to be read as implying that Cornell falls under the corruption of blood doctrine. Rather, our holding recognizes the specific direction of § 21.23 that when a beneficiary willfully brings about the death of the insured, the proceeds succeed to the insured’s nearest relative.

“Accordingly, we reverse the judgment of the court of appeals and render judgment that Phynies and Flora Crawford are entitled to the proceeds from Equitable Life Insurance policy No. N 78 227 787 and Metropolitan Life Insurance Company policy No. 28500-G as the nearest relative of Sandra Crawford Coleman.

Concurring and dissenting opinion by Justice Kilgarlin, joined by Justice Campbell.

“I respectfully concur with the result that the court reaches in regards to the proceeds of the Metropolitan Insurance policy, although disagreeing with the reasoning utilized by the court in reaching that result. I respectfully dissent to both the reasoning and the result reached by the court in respect to the proceeds of the Equitable Insurance policy.

“In truth, this court need not overrule Deveroex v. Nelson,[81] in order to accomplish the result the court desires. Entirely consistent with Deveroex, yet allowing the proceeds of both policies to go to Phynies and Flora Crawford, would be to hold that when the ‘insured’ manifests an intention as to a contingent beneficiary by writing in the name of that beneficiary on a policy application, the proceeds are disposed of according to the rule of Deveroex. But, if no intent as to the identity of a contingent beneficiary is made by writing in that name, but disposition is sought in accordance with printed policy terms, then the money would go to the nearest relative. Such a holding in this case would permit the Crawfords to recover, and still preserve the wisdom of adhering to the expressed intent of an insured.

“However, the reason for my concurrence with the court as to the disposition of the proceeds of the Metropolitan policy is that under the policy, Phynies and Flora Crawford were entitled to the proceeds in any event. Even though Cornelius Shoaf had secured the policy as a result of his employment with the State of Texas, Sandra Shoaf was the insured. The pre-printed language of the policy provided:

Second, if there is no designated beneficiary, to your widow or widower.

Third, if none of the above, to your child or children and descendants of deceased children by representation.

Fourth, if none of the above, to your parents or the survivor of them.

Fifth, if none of the above, to the duly appointed executor or administrator of your estate.

Sixth, if none of the above, to any other kin entitled under the laws of your domicile at the date of your death.

“The court of appeals erred in concluding that Cornelius' son, Cornell, was the contingent beneficiary under the policy. The court of appeals apparently confused beneficiary designation with terms in another part of the policy. Cornell would have qualified as Sandra’s ‘dependent’ under the policy, even though he was her stepson. However, under the life insurance portion of the policy, the clear language states: ‘Upon receipt of due proof of your death ... your children’ will take, ‘if none ... your parents.’ As it was Sandra’s death which was the condition precedent to the payment of the proceeds, and as Sandra had no children (children not being defined under this portion of the policy to include stepchildren), Sandra’s parents were the contingent beneficiaries. The foregoing presents a second alternative, at least in respect to the Metropolitan policy, that would allow the insurance proceeds to go to the Crawfords under article 21.23, but at the same time preserve the rule of Deveroex.

“While I have first suggested an alternative that would allow the court to leave Deveroex intact, and at the same time permit the Crawfords to recover the proceeds of both policies, and, second, a contractual basis for allowing the Crawfords to recover the proceeds of the Metropolitan policy, I nevertheless dissent in respect to the Equitable policy. We are on dangerous grounds when we start altering terms of contracts in order to reach what we perceive to be fair and just results.

“Under the Equitable policy, Cornelius Shoaf was the ‘insured’ and Sandra was the ‘insured spouse.’ The language of the policy provided that the ‘beneficiary’ of the insured spouse is ‘the insured, if living; if not living, the surviving children of the insured.’ Clearly, Cornell was the surviving child of Cornelius, and under the clear terms of the policy was the contingent beneficiary. In Deveroex, this court held that insurance proceeds were distributed to the nearest relative under article 21.23 only ‘if all beneficiaries, primary and contingent, are disqualified from receiving such proceeds.’[82] Texas thereby joined the majority of states in allowing contingent beneficiaries to recover.[83]

“I recognize today, as this court did in Deveroex, that the application of article 21.23 is difficult. However, I am persuaded by the court’s reasoning in Deveroex:

‘The language of section 21.23 does not suggest the intention of the legislature to forfeit the right of a guiltless named beneficiary.’[84] . Such construction ... effectuates the essential legislative objective of article 21.23, to provide for the exclusion from the policy proceeds of an individual who is a principal or an accomplice in bringing about the death of an insured. The legislative purpose in writing the second sentence of article 21.23 was merely to exclude the insurance proceeds from the insured’s estate and thereby prevent the murderer from receiving such proceeds as an heir of the decedent’s estate.[85] [86]

“If the Deveroex application of article 21.23 is difficult, overruling Deveroex can only lead to mischievous and regrettable results. For example, under the new rule that this court lays down, it matters not if the insured designates in his or her own writing the identity of a contingent beneficiary. If the insured meets death by a willful act of the primary beneficiary, then irrespective of the clear intent of the insured that the contingent beneficiary be someone else, the nearest relative will always recover.[87]

“Hypothetically, let us assume that we have a person who is insured under a policy of insurance. That person has a child, who has abused, mistreated, stolen from, physically injured, and committed various and sundry other acts of maleficent conduct, against the insured. As proof of all of this, the insured, in a last will and testament, writes off that child as not taking a thin dime, and sets forth the reasons why. Let us further assume that the person’s spouse is the primary insured under the policy and a close friend, niece, nephew, or anyone but the sole child, is designated by writing of the insured as the contingent beneficiary. Nevertheless, under the scenario previously outlined, should the insured’s spouse murder the insured, then under the new rule laid down by this court, the insured’s disinherited child, as the nearest relative, would recover. Surely, the court cannot intend this.[88]

“Admittedly, the insured in cases such as the one before us rarely[89] anticipates being feloniously killed by the primary beneficiary. It is difficult to know what the actual intention of the insured would have been had the problem in question been brought to her attention. The record is silent as to Sandra’s relationship with Cornell. It is clear, however, that an alternative beneficiary was provided in the insurance policy, and, in my opinion, the better view is to allow the proceeds to pass according to the alternative provisions of the policy rather than go to Sandra Shoaf’s nearest relatives.

“Lord Justice Fry referred to this concept, stating: ‘In a word, it appears to me that the crime of one person may prevent that person from the assertion of what would otherwise be a right, and may accelerate or beneficially affect the rights of third persons, but can never prejudice or injuriously affect those rights.’[90] Accordingly, I would affirm that portion of the court of appeals' judgment entitling Cornell to receive the proceeds from the Equitable Life Insurance policy and reverse that portion of the judgment awarding the proceeds of the Metropolitan Life Insurance policy to him.”

* * * * *

The Legislature Responds - Named Contingent Beneficiaries Win Again

The legislature decided that it likes the contingent beneficiaries to take after all. §21.23 was amended to read as follows:

The decision on this kind of issue is a judgment call. It can vary with the people deciding, or the time they decide. There is no clearly right answer. The only way to deal with it is to research the law that exists in the jurisdiction or jurisdictions involved when a case arises. Yes, there may be more than one jurisdiction. Choice of law may determine the result.

Note the statutory use of the phrase “named by the insured.” Does that include contingent beneficiaries generically designated by the printed policy document, or only individuals specifically identified by name? Do gifts to a class constitute gifts to “named beneficiaries?” For example, is “my children who survive me” a gift to a contingent beneficiary named by the insured if (1) it is handwritten by the insured or (2) it is in the printed document written by the insurance company? If it is, what is the disposition if one member of the class is a slayer, but another member is not a slayer?

* * * * *

Willfulness

Does a willful slaying require intent to kill, or merely intent to wound? What if the slayer aimed to miss, but missed - and killed? What if the slayer only intended to injure, scare, discourage, influence, or maim?

Although Greer is on point, it is not mentioned in Seedig. The court treats Bounds as if it affirmed, even though Bounds reversed the jury verdict.

There was a trial to a judge with an appeal, but without requesting findings of fact or conclusions of law, and without appeal of “wrongfulness.” What was the attorney thinking? Was the attorney thinking?

Could the killing, as opposed to the wounding, be considered an accident? What would the effect be if, before dying from the gunshot, the victim had crashed and died from a head injury sustained in the crash.

Seedig v. Dennis 701 S.W.2d 354 (Tex.App. Ft. Worth 1986)

“Margaret Sue Seedig has appealed the judgment of the trial court which found that she had forfeited her rights to her deceased husband’s life insurance proceeds because she willfully brought about his death. The facts in this case are essentially undisputed.

“We affirm.

“Mrs. Seedig was loading her belongings onto a truck and trailer with the help of her mother and sister and was in the process of leaving her husband, the deceased, when he returned home unexpectedly. Mrs. Seedig and her mother were standing on the front porch of the house and her mother left to get into her car. Mrs. Seedig told her husband that she only wanted to leave and did not want any trouble. She said that the deceased started around the car telling her, ‘you've done it again this time.’ Mrs. Seedig then stated that the deceased went toward the storehouse where she believed he had guns. While he was going toward the storehouse, Mrs. Seedig obtained a pistol from her sister which her sister had brought to the house for protection. Mrs. Seedig then told her husband that she would shoot him if he did not leave her alone. She further testified that he kept walking toward her and when he was ten feet away, she shot into the ground. When he kept coming, she shot two more times. One of these shots hit the deceased. He then turned. She saw blood on his leg and he walked to his car, got in and drove off. After driving a short way, he lost control of the car and it crashed into something alongside the road. Mrs. Seedig testified that she intended to hit him below the knees when she shot the last time.

“In his deposition, the coroner testified that he found three gunshot wounds on the deceased. They were the original entry, the exit, and then a reentry. The three wounds had been caused by one bullet which ruptured an artery on the reentry of the deceased’s left leg. This caused the loss of blood which in turn resulted in Mr. Seedig’s death.

“Mrs. Seedig asserts three points of error in which she states there is no evidence or alternatively, insufficient evidence, to show that appellant intended to cause the death of the deceased. Further, she asserts the trial court applied the wrong standard in this case in that she did not intend to cause the death of the deceased. We shall discuss these points of error collectively as they are essentially revolving around the same point. There is no question in this case but that Mrs. Seedig intended to hit Mr. Seedig because that is what she testified. It is the contention of Mrs. Seedig that as it was not shown that she intended to bring about the death of Mr. Seedig, her right to his insurance should not be forfeited, and, thereby, hangs the real question in this appeal.

“It is provided in TEX.INS.CODE art. 21.23:

“It becomes readily apparent that we are concerned with the application of the word ‘willfully’ in this case. The case of Bounds v. Caudle[92] held[93] that the beneficiary’s interest in the insurance was forfeited when the jury made the findings that:

“(1) The beneficiary shot and killed the insured (as here);

“(2) The action of the beneficiary in shooting and killing the insured was intentional; and

“(3) Such action was wrongful.[94]

“In the present case, appellant has not raised on appeal the finding of the court that the killing of the insured was wrongful. Appellant’s grounds of error deal only with the question of the intentionality of the killing.

“The trial judge, acting without a jury in this case, was not requested to make findings of fact and conclusions of law and did not do so. Absent findings of fact and a request for findings of fact, we will presume that all findings were found in support of the judgment and we are required to affirm the judgment if it can be upheld on any legal theory supported by the evidence.

“In the Bounds case, the testimony of the beneficiary was to the effect that his wife’s death was accidental and from his standpoint, he was merely trying to get a gun away from her to keep her from shooting him.[95] If anything, he was attempting to defend himself and to keep her from injuring herself or him.[96] He further testified that he did not intend for her to be shot.[97] Despite such testimony the jury found the action of the beneficiary in shooting and killing his wife was intentional.[98] [99]

“In the present case the trial judge had evidence before him in the testimony of Mrs. Seedig herself that she shot Mr. Seedig. The evidence further showed that her act in shooting him was intentional although she stated that she did not intend to kill him.

“She also testified that the deceased had made no threatening gestures, he did not possess a weapon, and the only statement he made to her was, ‘you've done it again this time.’ Also, she stated in her testimony that her husband had never threatened her with a weapon during their marriage and that he had never beat her or threatened to hit her. The court also had testimony before it that tended to dispute her testimony that he was walking toward her when she hit him because the bullet that killed Mr. Seedig, according to the testimony of Dr. Kraus, went directly into the side of the leg. Obviously, if he was walking toward her, it would have been hard for the bullet to have gone in the side of the leg. The trial judge, trier of the facts in this case, is presumed to have correctly assessed the testimony and the believability of the witnesses before him.[100]

“In view of the evidence here recounted, and in the absence of findings of fact, we cannot say the trial judge erred in holding appellant’s action in shooting and killing her husband was intentional.[101] Accordingly, we overrule all three points of error and affirm the judgment of the trial court.

* * * * *

A Ship of Fools Takes on Crawford

Rumbaut is the ship of fools case. Is gross negligence the same as willfulness? Is being an irresponsible fool a defense in a Slayer’s Rule case? Does the fact that the person slayed is also a fool matter? Does the Slayer’s Rule ever apply to an accident, an act of a fool, or act of God?

Rumbaut v. Labagnara 791 S.W.2d 195 (Tex.App.-Houston [14th Cir.] 1990)

“Texas law disallows recovery of life insurance proceeds by a beneficiary who is a party to willfully causing the insured’s death. [102] This case requires us to decide whether gross negligence is subsumed within the notion of willfulness. We hold it is not.

“Appellant’s wife Ana Maria Rumbaut was lost at sea, when a sudden storm arose in the Gulf of Mexico where the two of them were sailing. Because Mrs. Rumbaut’s will named appellant as executor of her estate, he applied for probate upon his return. Appellees, Mrs. Rumbaut’s sons by a previous marriage, contested the application and alleged that appellant had willfully caused their mother’s death.

“The central dispute at trial focused on appellant’s inexperience as a boatsman: he had only six hours of sailing time before he and his wife set out for Cozumel on their new craft. She had none. He testified that she had been swept overboard during a storm, and that his rescue efforts (later assisted by the Coast Guard) were unavailing. Appellees questioned appellant’s recitation of events as inconsistent and extremely suspicious. They took the position that his conduct in making the trip amounted at the very least to gross negligence, given the couple’s virtually nonexistent nautical skills. In its charge to the jury the trial court inquired whether appellant had willfully caused his wife’s death. The jury answered in the affirmative, and the court awarded appellees the $750,000 in life insurance proceeds.

“At the heart of this appeal is whether the court properly defined ‘willfully’ in its charge. That definition reads:

“The term ‘willfully’ as used in this charge may mean that the person alleged to have brought about the death of another person either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did.

“‘Willfully’ as used in this charge may mean more than intentional conduct which results from momentary thoughtlessness, inadvertence or error of judgment. It means an act or conduct committed without justification which demonstrates such an entire want of care as to indicate that the act or conduct complained of was the result of conscious indifference to the rights, safety, or welfare of the persons affected by it.

“To decide this question we must examine art. 21.23, the cases construing it, and the principles of appellate review of a jury charge.

II.

“The statute in effect when the relevant events took place provided as follows:

Because the Legislature has not furnished a definition of ‘willfully,’ we must turn to judicial decisions for guidance in ascertaining the word’s meaning.

“The leading case on point is Greer v. Franklin Life Ins. Co.[105] At issue there was the effect of a guilty plea to ‘murder without malice.’ The intermediate appellate court chose to construe the statute strictly, as though it were a criminal law.[106] Upon examination of Texas cases that court concluded that the ‘word ‘willful’ signifies ‘with evil intent or legal malice.’ ’[107] The supreme court reversed. Justice Garwood explained for a unanimous court that the law was not a criminal or even a civil penalty statute.[108] He continued:

We agree with the Court of Civil Appeals that ... ‘willfully’ connotes something more than that the beneficiary shall have intended the death of the insured to result from his or her act. Obviously the factor of illegality must also be present. But we cannot agree that the word means in substance ‘maliciously.’

In the course of further discussion the opinion refers to its rule as one ‘based on intent and illegality as distinguished from malice,’ at 860, and concludes that ‘the wholly unqualified admission of a plea of guilty with the other evidence above mentioned and in the absence of contrary evidence, established intent and illegality as a matter of law.’ Judgment was therefore rendered in favor of the next of kin and against the killer.

“Next came Bounds v. Caudle[109] The beneficiary in that case had been convicted of negligent homicide. He made two major arguments to the court: first, that no legal basis existed for application of art. 21.23; second, that the charge should have contained an instruction on self-defense. A unanimous court agreed with the latter contention and remanded the cause for a new trial, but not before rejecting the statutory claim. It had been argued that § 41(d) of the Texas Probate Code took precedence over art. 21.23. This claim rested on § 41(d)’s requirement of criminal conviction of a willful killing before a forfeiture could ensue. Willful killing alone would not suffice. Art. 21.23 contains no such requirement. Accordingly, the beneficiary urged rendition in his favor, because mere negligent homicide could not supply the requisite willfulness to satisfy § 41(d). The Court rejected his contention:

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.

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.[110]

“The question we face is how to interpret the court’s analysis of those jury findings. At first sight one might perceive a departure from Greer’s rule of intent plus illegality, in favor of intent plus wrongfulness. Upon reflection it is plain that no such departure took place. Confronted with specific factual findings, the court simply determined that the trial court’s judgment could properly rest on the verdict; it did not formulate a new definition of ‘willfully.’ This distinction makes a difference, for reasons which we shall explain below. Before reaching the matter of judicial ‘approval’ of jury instructions, however, we pause to consider a pair of decisions from the Fort Worth Court of Appeals.

“In Seedig v. Dennis[111] the beneficiary had shot her husband in the leg, leading to his death from loss of blood. Despite her denial of any intent to kill, the trial court ordered a forfeiture under art. 21.23. The court of appeals framed the issue as follows:

There is no question in this case but that Mrs. Seedig intended to hit Mr. Seedig because that is what she testified. It is the contention of Mrs. Seedig that as it was not shown that she intended to bring about the death of Mr. Seedig, her right to his insurance should not be forfeited, and, thereby hangs the real question in this appeal.[112]

It was significant to the appellate court that Mrs. Seedig challenged only one finding: intentionality of the killing. In light of Bounds v. Caudle, the Fort Worth court characterized Mrs. Seedig’s appeal as omitting the issue of wrongfulness. It then had no trouble affirming the judgment, given the conflicting evidence and the absence of findings of fact by the trial judge. Interestingly, the opinion nowhere referred to Greer v. Franklin Life Ins. Co. Nor was there any mention of a case which had come out of the Fort Worth court three weeks earlier, a case which constitutes the cornerstone of appellees' defense of the judgment before us today. We now turn to that decision and its pertinence to the present appeal.

III.

“That case is Crawford v. Coleman.[113] The definition of ‘willfully’ before us today is taken virtually word for word from the one given in Crawford. In the printed version of Crawford one reads that ‘willfully’ means:

more than intentional conduct which results from momentary thoughtlessness, inadvertence or error of judgment. It means an act or conduct committed without justification which demonstrates such an entire want of care as to indicate that the act or conduct complained of was the result of conscious indifference to the rights, safety, or welfare of the persons affected by it.[114]

We say printed version, because we have great difficulty reconciling this excerpt with the court’s disposition and discussion of the salient point of error:

“We have previously disposed of appellant’s contention that his definition of self-defense should have been given. In reviewing his assertion that the words ‘momentary thoughtfulness (sic), inadvertence or error of judgment’ should be deleted from the definition, if such deletion were made, in effect, it would result in the deletion of the first sentence which states in effect that willful conduct is something more than mere negligent conduct. Such a statement is correct and is properly placed in the definition complained of. Appellant’s third point of error is overruled.[115]

“The foregoing explanation would be decidedly more comprehensible if the concerned phrase in the definition ‘more than intentional conduct’ had actually said ‘more than negligent conduct,’ and thus the reference to intentionality could be dismissed as a mistake in printing, rather than one in reasoning. As it stands, the Crawford opinion mystifies us.

“What, for example, is meant by more than intentional conduct? The Crawford charge defines that essentially as gross negligence, which is of course less than intentional conduct.[116] This is as if a jury in a criminal case were told to find the accused guilty of murder only if he shot his victim by accident. . . . . It is not the law that ‘willful’ means ‘gross negligence.’

“The need for this sort of bright line is illustrated by a hypothetical put by the Chief Justice to appellees’ counsel at oral argument. Suppose H and W drink themselves into severe intoxication. They get into their car and W tries to drive, but she soon has an accident, one which she survives but H does not. Counsel responded that a jury could find W had willfully caused H’s death. We disagree. The legislature can pass a specific statute covering such conduct, but art. 21.23 is not that type of enactment. Moreover, our law contains few concepts with fuzzier edges than gross negligence, and we prefer to stay with the plain meaning of the text.

“Our conclusion is not altered by the events following the Fort Worth court’s decision. The supreme court’s reversal on other grounds failed to address the charge problems in that case.[117] Likewise, the legislature’s statutory response to the high court’s opinion simply did not deal with the issue we face.[118] We are unwilling to take these two instances of silence as any positive approval of the Crawford definition. Furthermore, the whole notion of a court ‘approving’ a definition runs counter to the prohibition on rendering advisory opinions. It is one thing to say that a definition is incorrect, as urged by a litigant. It is quite another thing--so much so as to be different in kind--to say that a definition is affirmatively correct, because that sort of blanket assertion means the court must reject all hypothetical complaints which could ever be made against the particular language. Orthodox procedural doctrine has long held that:

Appellate courts are not authorized to ‘approve’ a court’s charge. They are empowered only to pass on points which present specific objections, properly preserved, to an actual charge under the unique facts of a particular case, and to determine whether reversible error is demonstrated by the objection raised under the record in that case.[119]

“Because the definition given below was incorrect, we need not examine its unusual structure, namely the disjunctive construction. Our inquiry does not end here, however, because appellant argues that the evidence is legally insufficient to find him culpable within the meaning of the statute. If we agree that no evidence supports a finding of willfulness, then we must reverse and render; on the other hand, if there exists any evidence in favor of the verdict--even though factually insufficient--we must reverse and remand.

“The question is not an easy one. Plainly, the only person who could furnish eyewitness testimony is appellant himself, and he flatly denied any intent to cause his wife’s death. But because his testimony is contrary to the verdict, we cannot consider it. Instead we must examine only those portions of the evidence which support the jury’s finding. Application of this standard in its customary formulation presents us with a dilemma: either we rely on various snippets of circumstantial evidence (such as the high magnitude of insurance coverage), or we hold in essence that since appellant’s version of the shipboard events was the only one presented to the jury, the law forbids the jury to disbelieve him and requires a verdict in his favor. To put it another way, for us to sustain appellant’s legal insufficiency challenge we must hold that, on this record, reasonable minds could not conclude appellant was untruthful in his recitation of events. Yet the law recognizes the fact-finder as the sole determiner of credibility. An appellate court simply lacks the capacity to judge the believability of witnesses. Here that distinction becomes critical, because appellant’s veracity is the linchpin of the litigation.

“The establishment of a culpable mental state is commonly done by use of circumstantial evidence, as we know from criminal jurisprudence.[120] We therefore turn to the pertinent circumstances.

“The most obvious aspect of such proof is the couple’s nautical background: they had virtually no sailing experience yet launched off into the Gulf of Mexico during hurricane season. Appellees then adduced evidence of financial motivation by showing that appellant owed over $200,000 on his house and nearly that amount on the boat. This indebtedness pales in comparison with the $750,000 of life insurance coverage. When asked how he could afford to make payments on the house and the boat, appellant testified that he could not, especially given that he had since quit work. As to the voyage itself, appellees sought in essence to make out a case of a preplanned accident waiting for a place to happen. For example, there was testimony that appellant’s wife had limited swimming skills. And appellant stated that the boat’s life lines were not working properly before the voyage. He knew this posed enough of a problem to call for remedial measures, but no one made the appropriate repairs; he himself tried to fix the lines before departure, but without success. In addition, appellant could not recall ever having familiarized himself with use of the ship’s autopilot, a device which became significant when the decedent went overboard. According to his testimony, difficulty in adjusting the autopilot resulted in a spatial separation between the boat and the decedent such that he could never relocate his wife.

“We believe these circumstances constitute some evidence from which the jury could have found as it did. The first point of error is sustained and the second one overruled. We reverse the judgment and remand the cause for new trial.

Chief Justice Brown, dissenting.

“I agree with the court that the trial court’s submission of the question of whether the beneficiary was a principal or accomplice in willfully bringing about the death of the insured did not meet the controlling test established by our Supreme Court in Greer v. Franklin Life Ins. Co.[121] I dissent because of my belief that the judgment should be reversed and rendered in favor of appellant because there is no legally sufficient evidence to support a finding that meets the terms of the statute and our Supreme Court cases construing it. There is no evidence, direct or circumstantial, showing appellant caused his wife to fall overboard. Evidence that this was a two person ‘Ship of Fools’ will not meet the test.”

* * * * *

Self Defense justifies slaying.

Self Defense justifies slaying. No findings or conclusions were requested.

Giles v. Wiggins 442 S.W.2d 839 (Tex. Civ.App. - Ft. Worth 1969)

“This suit involves ascertainment of the rightful claimant to the proceeds of a life insurance policy issued by National Life and Accident Insurance Company. The latter, as stakeholder, filed the suit and deposited $8,009.11 into the registry of the court for disposition by it to the claimants entitled thereto.

“Vergia L. Giles, insured, was shot by his wife, Evelyn Jean Wiggins, nee Evelyn Jean Giles, appellee and primary beneficiary of the policy, on September 4, 1966. He died as result thereof on September 14, 1966.

“The case was tried to the court without a jury. The court, contrary to the claims of the appellants (decedent’s next of kin) found that the beneficiary (appellee) at the time of the shooting was acting in self-defense and because thereof did not willfully bring about the death of the insured and therefore was entitled to the proceeds of the policy.

“On appeal the appellants contend that the evidence was insufficient to support the judgment because it (the evidence) conclusively showed that the conduct of the appellee in killing her husband was willful and therefore appellants, as next of kin, were entitled to judgment.

“We affirm.

“Article 21.23 of the Insurance Code is based upon Art. 5047, which was enacted in 1919. It is unchanged. By its terms the interest of the beneficiary under a policy of insurance is eliminated or canceled in favor of ‘the nearest relative of the insured’ in a situation where the beneficiary ‘willfully’ brings about the death of the insured.

“Greer v. Franklin Life Ins. Co.[122] involved a case in which an insured was killed by his wife. The rule announced there was that where the beneficiary intends to kill the insured and the killing is illegal, the beneficiary loses his or her rights under the policy. Conversely where the beneficiary intends to kill the insured and the killing is legal, the beneficiary does not lose his or her rights under the policy. In Greer,[123] the court said: ‘We agree with the Court of Civil Appeals that, as used in Art. 5047, ‘willfully’ connotes something more than that the beneficiary shall have intended the death of the insured to result from his or her act. Obviously the factor of illegality must also be present.’ The court in Greer further held that the word ‘willfully’ did not mean ‘maliciously.’[124] See also Simon v. Dibble, in which it was held that Art. 21.23 of the Insurance Code would not preclude recovery in a case where the homicide was intentional but not illegal because of the beneficiary’s insanity.

“The appellants concede that, ‘If the killing is done in justifiable self-defense, it is not willful.’ They argue that it was unreasonable for appellee to believe that she would suffer death or serious bodily injury at the hands of her husband on the occasion in question because he had attacked her many times before and while he had inflicted injury had never killed her in the previous attacks.

“In the instant case no specific findings of fact were requested and none were filed. A statement of facts was brought forward. It consists of 275 pages of recorded testimony of numerous witnesses and a third volume of exhibits. Under such circumstances it is presumed upon appeal that the trial judge found every issue of fact necessary to sustain the judgment when such fact issue is raised by the pleadings and finds support in the evidence. This court is compelled to affirm the court’s judgment if it can be sustained on any reasonable theory supported by evidence and authorized by law. The appellants thus bear the burden of showing that the undisputed facts negative one or more of the elements essential to support the judgment. This is a difficult burden to discharge. The appellants have failed in this regard.[125]

“The trial judge in this case was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Needless to say in a case of this type the issues were vigorously contested. There was evidence pro and con. Certainly the evidence was not consistent. It varied with considerable degree. There was evidence both ways on the issue of ‘self-defense.’ There was evidence in support of the court’s finding of ‘self-defense’ and evidence which would have supported a finding to the contrary. It is not the province of this court, under the record of this case, to hold that the court erred in rejecting the contentions of the appellants and in holding as it did.

“In view of what we have said to this point we see no useful purpose in reciting a blow by blow account of the sordid details of this case. Suffice it to say that all of the elements of self-defense on the part of appellee were in the record and fully supported the judgment of the trial court.

“Affirmed.

* * * * *

Professional Responsibility Issues Arising in Slayer’s Rule Litigation

Choice of law, Criminal to civil Collateral estoppel, and the Best Opinion.

* * * * *

Huckleberry raises choice of law issues that may be common in Slayer’s Rule cases, but are seldom raised. The teacher had a Slayer’s Rule case that involved several states. The choice of law can determine the outcome. It also can be a confusing and time consuming issue. It is something for a lawyer to consider immediately when a Slayer’s Rule case arises. The lawyer should consider which states have a role in any aspect of the facts, review the relevant substantive and procedural law of those states, including their law regarding choice of law, and analyze all possible results. The results may depend on where the suit is filed or the nature of the suit and the way the issues are framed. The procedural law of one state (or the federal court) may apply along with the substantive law of another state. One state’s law may govern one asset (insurance or one particular policy) while another state’s law governs another asset (a trust, a farm or a different insurance policy). This can be much more complicated than it appears. Choice of law isn’t mentioned in other Texas cases. Is that because no one noticed the issue, no one addressed the issue, or no one knows the answer and ignoring the issue substitutes for resolving it? The issue in Huckleberry is relatively simple, with only two states and a few facts.

Huckleberry followed Deveroex. A year after Huckleberry, Crawford overrules Deveroex. Ironically, here a person named Crawford lost this case, but would have won under the holding of Crawford, at least until the statute was revised.

The slayer’s lawyer, to whom an interest in the death benefit was assigned, gets nothing if the slayer’s interest is forfeited.

Huckleberry shows the way a Slayer’s Rule case should be analyzed. It isn’t hard to do it right, but it is rare. We give a tip of the hat to Judge Joe Fish, the author of this opinion. This is the best substantive analysis of the Texas insurance Slayer’s Rule contained in a published opinion.

Huckleberry suggests an issue that is not addressed. Consider an assignment of an interest in the death benefit to an attorney as a fee for criminal defense representation. Is that ethical? Does it create the effect of a contingent fee which is collectible only if a conviction is avoided? Does it create a conflict of interest? Consider that convictions for some crimes constitute collateral estoppel for Slayer’s Rule purposes but convictions for other crimes do not. For example, if Huckleberry was convicted of negligent homicide of the insured instead of first degree murder under section 18-3-102 of the Colorado Criminal Code, does he take the insurance proceeds? If so, does the lawyer have an incentive to press for a plea bargain with a conviction that preserves the client’s death benefit even if that result is not in the client/slayer’s penal interest?

After the district court judgment from Hunt County, Texas, why does this case exist?

American National Insurance v. Huckleberry 638 F. Supp. 233 (N.D. Tex, Dallas 1986)

“This case is before the court on the motion for summary judgment of defendant Deborah Huckleberry Stevens (‘Stevens’ or ‘the guardian’). . . . Stevens’ motion is granted.

“I. Background Facts

“American National Insurance Company (‘American’) interpled the $100,000 face amount of its policy insuring the life of Beverly Ann Huckleberry, deceased. Together with accrued interest, the fund now totals $115,560.

“American’s complaint in interpleader names four defendants whom it alleges have a potential claim to the proceeds: (1) John Francis Huckleberry (‘Huckleberry’), whom the policy designates as first beneficiary; (2) a minor, Truett Jason Huckleberry (‘the child’), whom the policy designates as the secondary beneficiary, represented here by Stevens, his guardian and natural mother; n1[126] (3) Charlene Crawford (‘Crawford’), the mother and closest relative of the insured; and (4) Mitch Geller (‘Geller’), the attorney who represented Huckleberry in the murder case in Colorado. Geller claims a 50% interest in the proceeds on the basis of an assignment from Huckleberry, apparently as compensation for Geller’s services. Because Geller’s claim is solely derivative of Huckleberry’s, no separate consideration of it is necessary.

“Huckleberry was a party and participant in civil action No. 42,540 in the District Court of Hunt County Texas, styled ‘In the Interest of Truett Jason Huckleberry, a Child,’ wherein the issue of entitlement to these insurance proceeds was litigated between Stevens (on behalf of the child) and Huckleberry. The district court concluded that the child was entitled to the insurance proceeds. n2[127]

“II. Questions of Law

“This court is called upon to decide the following three questions of law as framed by Stevens:

“1. Does Texas or Colorado law control the issue of entitlement to the insurance proceeds?

“2. Has Huckleberry forfeited his right to receive the insurance proceeds due to his conviction for murdering the insured?

“3. When a primary beneficiary has lost his rights to life insurance proceeds due to a conviction for murdering the insured, who then receives the proceeds: the innocent second beneficiary, or the heirs at law of the insured?

“A. Choice of Law

“A federal court sitting in diversity must apply the choice of law rules of the forum state, in this case Texas.[128]

“Under Texas law, in the absence of a contrary manifestation, an initial presumption is that the parties intend for the law of the jurisdiction where the contract is made to govern. However, where the contract is made in one jurisdiction, but to be performed in another, the presumption arises that the parties contracted with reference to the place of performance.[129]

“Where a contract is made in one state but is to be performed partly in the state of making and partly in another state, the courts have ordinarily construed the contract in accordance with the law of the place where the contract was made.[130]

“Texas courts have also held, however, that incidental performance in one state would not preclude the application of the law of the state where the bulk of performance occurred and in which the contract itself was made. The settled rule is that ‘where most of the performance of the agreement occurs in Texas, the agreement will be covered by the laws of Texas.’[131]

“Analysis of Texas cases involving insurance contracts yields a number of rules upon which courts rely in determining the place of the making of the contract and the place of its performance. In Seiders v. Merchants' Life Ass'n of the United States,[132] the Supreme Court of Texas held that where the insurance contract provided that the proceeds and premiums were payable at the insurance company’s home office in Missouri, Missouri law controlled construction of the contract in absence of any special circumstances, even though the contract was actually made in Texas:

Conceding that the contract of insurance was made in Texas, it is made payable at the home office, in the state of Missouri, and all premiums are likewise made payable there. It does not provide for any act to be done elsewhere by the company. A tender of the money at the home office would have been valid. Unless there be something in the circumstances which indicate that the parties contracted with reference to the laws of Texas, the legal effect of the contract must be determined according to the laws of the state of Missouri.[133]

“In Fidelity Mutual Life Ass'n v. Harris,[134] the court emphasized the importance of offer and acceptance principles to determination of the question as to where a life insurance contract was made:

The test is generally held to be the acquiescence or final agreement of minds by which the contract is concluded, and the place where that occurs is the place where the contract, for most purposes, is held to have been made. With reference to contracts of insurance, where applications or proposals are taken in one state by an agent having no authority to conclude the contract or bind the company, and are forwarded to the domicile of the company, and there accepted, and the policy issued, the contract is ordinarily to be treated as having been made at such domicile, and to be performed there.[135] This is true, however, only because the act of the company in signifying its acceptance of the proposal completes the contract; and when, as sometimes happens, other things are to be done before the parties are to be bound, the contract is held to have been made when and where such other things transpired. It is often stipulated in policies that they are not to take effect until the first premium has been paid, and the policy has been countersigned by the agent of the company in the place where the applicant resides; and it is held that the contract is to be considered as made where these acts are done.[136]

The court then discussed the significance of a local agent’s delivering the policy to the insured:

The general rule is that the acceptance of the application and the issuance and mailing of the policy are all the acts that are essential to put the contract in force; and the fact that the policy is sent to an agent for unconditional delivery does not alter the effect of the transaction.[137]

“Thus, under Texas law, it is clear that where an agent must verify to his satisfaction a certain condition of the insured before delivering the insurance contract, the final act of the making of the contract occurs at the place where the insured resides. Where delivery of the policy is unconditional, however, the contract is deemed to have been made at the domicile of the insurance company.[138]

“The principles outlined in Seiders and Fidelity are still applicable today.[139] Thus, in Mutual Life Insurance of New York v. Anderson[140] the policy was sent to the insurance company’s regional office to be held ‘pending the completion of the investigation by the home office as to whether [the insurance company] was satisfied that [the insured] was acceptable as an insurance risk under the company’s standards.’[141] The court held that where, by the terms of the application for an insurance policy, delivery of the policy was made a condition precedent to inception of the policy, and the policy was never delivered to the applicant, the contract of insurance had not been consummated.[142]

“Similarly, in American Nat. Ins. Co. v. Smith,[143] the insurance policy contained the following delivery clause: ‘Deliver no policy without seeing the policyholder and satisfying yourself that the risk is in sound health. If appearance is not satisfactory, send the policy back to the Company, stating the cause and await further instructions.’ The court had no trouble concluding that an undelivered policy did not constitute an effective contract, and that the validity of the contract was to be determined by the place of delivery.[144]

“Applying these principles to the present case, the court concludes that the contract was made in Texas and was to be substantially performed in Texas. The affidavit of Earl Hennessy, filed in support of Stevens' motion, attaches an exact copy of the policy involved here. Hennessy’s affidavit states that once the policy was issued and placed in the United States Mail at Galveston, Texas, the policy was in full force and effect with no other requirements to be fulfilled on the part of the insured. Thus, the acceptance of the application and the issuance and mailing of the policy, acts which were essential to the consummation of the contract, occurred in Texas.

“The conclusion that Texas law controls the substantive outcome of this case is further supported by the fact that most of the performance of the contract would take place in Texas.[145] The insurance policy provides in pertinent part:

"The Sum Insured is payable upon receipt at the Company’s Home Office in Galveston, Texas, of due proof of the Insured’s death." (policy page 1).

"Home Office: One Moody Plaza, Galveston, Texas . . . ." (policy page 1).

"Signed for the Company at Galveston, Texas." (policy page 1).

* * * *

"ASSIGNMENT. No assignment will bind the Company until recorded at the Home Office." (policy page 4).

* * * *

"CHANGE OF BENEFICIARY. The Owner may change a beneficiary if: (1) the Insured is living; and (2) written request in a form accepted by the Company is filed at the Home Office." (policy page 4).

* * * *

"NOTICES. All notices, applications and other correspondence required, by this policy or any attached riders, to be sent to the Company must be mailed or delivered to the Company’s Home Office in Galveston, Texas." (policy page 4).

* * * *

"Premiums are payable at the Home Office . . ." (policy page 3).

“In New York Life Insurance Co. v. Baum,[146] the court considered a conflict of laws question arising on facts similar to those presented here and determined that the law of the state where the policy was issued and the contract was created would control.[147]

“This court has found no authority, nor has it been referred to any, holding that the law of another jurisdiction should be applied. Consequently, applying Texas choice of law rules, the court concludes that Texas law applies in determining the entitlement to the insurance proceeds.

“B. Huckleberry’s Claim to the Proceeds

“Tex. Probate Code §41(d) provides in pertinent part:

‘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 hereinafter amended . . . .’

“The Texas Insurance Code provides in Art. 21.23:

“As evidenced by a copy of the judgment attached as an exhibit to Stevens' motion, Huckleberry was convicted of first degree murder of the insured and is currently serving a life sentence in the Colorado Department of Corrections. The judgment of conviction makes reference to section 18-3-102 of the Colorado Criminal Code which sets forth the elements of first degree murder.

“Section 18-3-102 of the Colorado Criminal Code states in pertinent part, that ‘a person commits the crime of murder in the first degree if . . . after deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person’. Section 18-3-101(3) of the Colorado Criminal Code defines ‘after deliberation’ as

. . . not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner.

“It is clear from a comparison of the language of Colorado Criminal Code sections 18-3-102 and 18-3-101(3) that the guilty verdict in Huckleberry’s criminal trial is a judicial determination that Huckleberry was a ‘principal . . . in willfully bringing about the death of the insured’ which would dictate the forfeiture of his interest under Tex. Ins. Code Art. 21.23. The jury verdict in Huckleberry’s criminal trial settles this issue as a matter of collateral estoppel.

“Additionally, the doctrine of res judicata bars Huckleberry’s claim to the insurance proceeds. Under the doctrine of res judicata, when a prior judgment is offered in a subsequent suit in which there is identity of parties, issues, and subject matter, the judgment is treated as an absolute bar to retrial of the claims determined by the judgment.[148]

“As shown by the affidavits of Ann Prince, the District Clerk of Hunt County Texas, and Pat Winters, the attorney who represented Stevens as guardian in the Hunt County suit, Huckleberry was the respondent in a suit filed in Hunt County styled "In the Interest of Truett Jason Huckleberry, a Child", Cause No. 42,540. The Hunt County action was brought by Stevens as the child’s natural mother, seeking modification of the previous custody decree to give her permanent custody of the child. Prior to the murder of Beverly Ann Huckleberry and until modified by the Hunt County suit, Huckleberry had been granted custody of his son for five years.

“On April 24, 1985, the Hunt County District Court issued an order appointing Stevens as managing conservator for the child. The court also held that Huckleberry had lost any claim to the proceeds of the policy due to his conviction and that the policy proceeds then passed to the child as secondary beneficiary.

“Geller’s claim to the proceeds must also fail since it is dependent upon the success of Huckleberry’s claim. Only the claim of Crawford remains for consideration.

“C. Crawford’s Claim to the Proceeds

“Tex. Ins. Code art. 21.23 provides that when a beneficiary in a life insurance policy has forfeited his entitlement to the insurance proceeds because of his participation in willfully bringing about the death of the insured, ‘the nearest relative of the insured shall receive said insurance.’

“As shown by the undisputed facts, the named secondary beneficiary under the policy is Truett Jason Huckleberry, the stepson of the insured. Although named as the secondary beneficiary, Truett Jason Huckleberry is not ‘the nearest relative of the insured.’ That person is Crawford, the mother of the insured. Hence, Article 21.23, if construed literally, would support Crawford’s claim to the insurance proceeds. However, in a very similar factual setting the Texas Supreme Court held ‘. . . we would distribute the insurance proceeds to the nearest relative of the insured under Article 21.23 only if all of the beneficiaries, primary and contingent, are disqualified from receiving such proceeds.’[149] Deveroex makes clear that in this case the child, as an innocent secondary beneficiary, has a claim to the proceeds superior to Crawford’s.

“III. Conclusion

“. . . [T]he court concludes that Stevens' motion for summary judgment is meritorious and is hereby GRANTED.

* * * * *

The Iran collateral estoppel blonde[150] defense.

In Cooley, there is a killing and a conviction, but no collateral estoppel or Slayer’s Rule disqualification. Cooley demonstrates that, for a slayer, being dumb, or playing dumb, can be smart.

Issues suggested by this case include:

Does slaying the insured in another country cause forfeiture?

What is the choice of law?

Is foreign due process, if any, a factor?

Proof of a foreign conviction, foreign law, and choice of law.

Cooley v. Cooley 503 S.W.2d 604 (Tex.Civ.App. - Eastland 1973)

“Mutual Life Insurance Company of New York brought an interpleader action to determine the proper beneficiary under a policy of life insurance issued on the life of Melvin K. Cooley. The defendants were Mrs. Doris Cooley, the named beneficiary, Mary Helen Cooley as guardian of the estates of three minors and Sedco, Inc. and Sedco Persia, Inc., assignees of a portion of the insurance policy. Mary Helen Cooley contended that Doris Cooley should be disqualified as a beneficiary on the grounds that Doris Cooley willfully brought about the death of the insured, Melvin K. Cooley, being convicted and sentenced for same in the country of Iran. On the jury’s finding that Mrs. Doris Cooley did not willfully bring about the death of Melvin K. Cooley, the trial court entered judgment for Doris Cooley. Mary Helen Cooley appeals.

“It was established on the trial of the cause that Mary Helen Cooley married Melvin Cooley in 1956. He was the father of her three children for whom she was duly qualified as guardian. This marriage terminated in 1962 by divorce.

“In June 1963, Doris Cooley and Melvin Cooley were married. Doris Cooley had been previously married and had children. No children were born to the marriage of Doris and Melvin Cooley and he did not adopt any of the children of Doris. This marriage was terminated by the death of Melvin Cooley in 1966.

“At the time of Melvin Cooley’s death, he was employed by Sedco, Inc. and/or Sedco Persia, Inc. He, Doris Cooley and two of her children were living in Tehran, Iran. Melvin Cooley was shot and killed in his home there. The evidence showed that on the day of the shooting Melvin and Doris Cooley had been arguing, a struggle with a gun ensued resulting in shots being fired and Melvin Cooley being killed.

“Mary Helen Cooley’s claim to the insurance proceeds as guardian of the nearest relative of the deceased insured was based on Article 21.23, Insurance Code, and Section 41, Probate Code.

“Article 21.23, 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 said insurance.'

“Section 41(d), provides:

'Convicted Persons and Suicides. 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; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.'

“Doris Cooley’s claim to the proceeds was based on the fact that she was the named beneficiary. Sedco, Inc. and Sedco Persia, Inc., claimed an interest in the proceeds of the insurance policy as a result of an assignment from Doris Cooley for the repayment of monies advanced by them to her.

“Mary Helen Cooley urges that the trial court erred in excluding any evidence regarding the investigation of the death of Melvin Cooley and the arrest, trial, conviction, sentencing and pardon of Doris Cooley on the charge of his murder. She contends that after the enactment of the Probate Code provision, Section 41(d) supra, a beneficiary who killed the insured cannot recover the proceeds if it can be shown that he either willfully brought about the death of the insured or that he was convicted and sentenced for willfully bringing about the death of the insured.

“The excluded evidence of which Mary Helen Cooley complains is (one) an alleged part of the official court record of Iran and (two) the testimony of Doris Cooley concerning her arrest, trial, conviction, sentencing and pardon.

“For the alleged part of the official court record of Iran to be admitted into evidence the requirements of Article 3731a, Texas Civ.St., must be met. Section 2 of this article applies to foreign records which are 'permitted or required by law to be made, filed, kept, or recorded . . . by an officer or clerk; or by any notary public of a foreign country in a protocol or similar book in the performance of the functions of his office.'

“Section 4, Article 3731a, requires that ’such writings may be evidenced by . . . a copy attested by the officer having legal custody of the record, or by his deputy.'

“There is no showing that the offered document was an official foreign record that was permitted or required to be made, filed, kept