Texas Slayers Rule: May A Killer Inherit?

© A. Hawkins 2004

CLE Course Provider

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. 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 course concentrates on the right to an inheritance or other assets that are not life insurance. Two other courses concentrate on life insurance benefits. 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.

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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.

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

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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

Course #1

Introduction

Texas Law

American Slayer’s Rule Concepts

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Cases

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

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

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

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

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

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

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

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

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

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

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

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

Course #2

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

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

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

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

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

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

Future Texas Slayer’s Rule Issues

Is Withdrawal of Artificial Life Support A Slaying?

What do you do? What can you do? What should you do?

Slayers in the Headlines

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

Murder-suicide suspected

Man convicted of killing mom for not paying for female escort

Mayhew to go on trial in civil court for slaying

Siblings' lawyers debate motive in Mayhew trial

Millionaire's son found responsible for slaying

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

Official: Nepal Crown Prince Kills 8

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

Princess dies in helicopter crash

Suspect’s wife speaks out about mistress’ slaying

Love Triangle Leads To House Fire

Yates

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

Girl's maturity weighed in brother's killing

Woman arrested in parents' slayings

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Course Text

Texas Slayers Rule: May A Killer Inherit? #1

Introduction

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

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

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

After examining the law books, we look to the news headlines for interesting Slayer’s Rule fact situations that raise classic Slayer’s Rule issues of Shakespearean proportions. The facts in news reports often raise interesting Slayer’s rules issues of accidental death, self defense, killing someone other than the intended target, insanity, and divinity. The next time you read in a newspaper about an intentional or accidental death involving families, consider the Slayer’s Rule issues. The law books and newspapers demonstrate an interesting phenomenon. Slayer’s Rule situations are common. Every day Texas newspapers report stories with facts that implicate the slayer’s rule.

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Texas Law

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

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

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

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

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

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

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

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

We turn back the clock 100 years.

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

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

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

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

He suggested that it would run counter to the principles of equity to permit the murderer to enrich himself by his crime. On the other hand, he suggested that it would violate the Statute of Wills or statute of distributions to hold that the legal title did not pass to the murderer. He advocated the third view, that ‘the legal title passes to the murderer, but equity will treat him as a constructive trustee of the title because o the unconscionable mode of its acquisition, and compel him to convey it to the heirs of the deceased, exclusive of the murderer.’ ”[1]

Fifty six years later, and two years before the Texas case of Pritchett v. Henry, Atkinson’s Handbook of the Law of Wills[2] described the state of American Slayer’s Rule law.

“Murder of the Ancestor

“When an heir or a distributee feloniously kills the intestate, it seems shocking to allow the former to succeed to the latter’s property. However, in absence of statute, the majority of cases have held that he may. In at least one such decision it appeared that the slaying was for the purpose of obtaining the property. The chief reason assigned for this view is that as the statutes of descent and distribution make no exception for the situation, the courts should not imply one. Some of the opinions also mention constitutional and statutory provisions forbidding forfeitures for crime.[3] There is a strong minority view, denying recovery to one who has killed his ancestor, largely upon the broad ground that one should not be permitted to take advantage of his own wrong. Most of the recent cases take this position. Some of them proceed upon the theory that the murderer takes no legal title to the property, while others assume that legal title passes to him but a trust ex maleficio will be impressed. The procedure may differ according to which of these theories is adopted. However, this distinction ordinarily would make little difference in ultimate effect, except that under the trust theory an innocent purchaser from the murderer would be protected, which would not be true if no title passed to the slayer.[4]

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

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

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

“Murder of One Joint Tenant by Other Joint Tenant

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

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

“Murder of Insured by Beneficiary of Policy

“Both because of the policy against allowing one to take advantage of his own wrong, and because of the principle of insurance law that one cannot recover for a loss which he has intentionally caused, a beneficiary who has murdered the insured cannot recover on the policy. Usually the insurer cannot defeat payment of the policy on this ground and the insured’s personal representative can recover the full amount. By the prevailing and better doctrine the guilty beneficiary is not entitled to share in the proceeds so recovered by the estate though he is one of the distributees. However, there are some cases to the contrary.[5]. . . .

American Slayer’s Rule Concepts

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

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

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

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

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

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

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

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

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

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The Texas Slayer’s Rule

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

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

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

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

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

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

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

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

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

“The appellee contends that the question has long been settled in Texas under the holding in the case of Hill v. Noland, Tex.Civ.App.[6] In that case, by the Texarkana Court of Civil Appeals, in 1912, the court held that our statutes provide that upon dissolution of the marriage relation by death all property belonging to the community estate of the husband and wife shall go to the survivor should there be no children or their descendants; that the article in plain and unambiguous language designates the person to whom the estate shall descend upon death and that there is neither condition nor exception debarring or forfeiting the estate or the right of succession to the wife or husband; that as the rule of inheritance is explicit and imperative, the courts would not be warranted in reading into the statute a clause disinheriting a survivor for the crime of murdering the deceased spouse. The opinion further states that in such facts, that is, where the survivor had murdered the deceased spouse, it is the intestate law alone that casts the estate and right of succession to the wife, and this law is absolute and peremptory. Writ of error was denied by the Supreme Court.

“We do not consider this authority as the final expression of our Supreme Court on this question. In Greer v. Franklin Life Ins. Co.,[7] by the Supreme Court, in 1949, the opinion by Justice Garwood referred to the case of Hill v. Noland, supra, and stated, ‘in that case, incidentally, the more modern view of imposing a constructive trust upon property inherited by a murderer from his victim, for the benefit of the heirs other than the murderer, was evidently not suggested or considered.’ This decision did not involve directly the question under consideration here, but was concerned with the application of the statute which eliminates the interest of the beneficiary in a life insurance policy where the beneficiary willfully brings about the death of the insured. We look upon it, however, as a statement by our Supreme Court that it inclines to the more modern view of imposing a constructive trust upon the property inherited by a murderer from his victim.

“The decision in the case of Pope v. Garrett,[8] by the Supreme Court, in an opinion by the late Justice Smedley, has fully convinced us that the law in Texas now is in keeping with such a more modern view, and that the law will impress a trust upon the property of Melba Henry, deceased, which passed to Percy B. Henry, either by inheritance or as a beneficiary in her will, if the proof is sufficient to sustain the appellants’ allegation that he willfully and unlawfully caused her death.

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

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

“The text also discusses that same principle as applied to murder by spouse. It is pointed out that at common law the widow of a decedent is entitled to a life interest in one-third of the land owned by her husband at any time during coverture, and that prior to his death she had an inchoate right of dower in the land, of which she cannot be deprived by his will or by a conveyance inter vivos by him without her consent. It is argued that since she has this interest during his lifetime, she should not be deprived of it even though she murders him. It would seem, however, that she should not be permitted to profit by the murder of her husband. If she had predeceased him she would have taken no interest in the land. By her felonious act she had made it certain that she survived him. It would seem, therefore, that she should be precluded from the enjoyment of her dower interest. The same consideration should apply with respect to the husband's right of curtesy where he murders his wife. By statute it is frequently provided that the surviving spouse shall have a certain share of the property of the deceased spouse if the latter dies intestate. Under such statutes it is clear that there is the same reason for imposing a constructive trust upon one spouse who murders the other as where the heir or next of kin murders him.[9] We think the same reasoning applies to the question of whether this principle shall be applied under our statute of community survivorship. The surviving spouse should not be permitted to keep or enjoy the property of the community, since by his willful act he has made certain that he survives his deceased spouse and he should be precluded from keeping and enjoying property which he takes as a survivor in community.

“The appellee urges here the holding in the case of Hill v. Noland,[10] which is mentioned above. He says that our statutes in regard to Wills and Descent and Distribution are silent as to any exceptions thereto and that what the appellants are urging on this appeal is an amendment to the statutes of the State of Texas to provide an exception to our statutes of Wills and Descent and Distribution. He suggests also that the appellants should address their pleas to the legislature of the State of Texas and not to this court. We do not agree. We quote the following from the opinion in Pope v. Garrett:[11] ‘The argument is often made that the imposition of a constructive trust in a case like this contravenes or circumvents the statute of descent and distribution, the statute of wills, the statute of frauds, or particularly a statute which prohibits the creation of a trust unless it is declared by an instrument in writing. It is generally held, however, that the constructive trust is not within such statutes or is an exception to them. It is the creature of equity. It does not arise out of the parol agreement of the parties. It is imposed irrespective of and even contrary to the intention of the parties. Resort is had to it in order that a statute enacted for the purpose of preventing fraud may not be used as an instrument for perpetrating or protecting a fraud. (Citing cases.) In this case Claytonia Garrett does not acquire title through the will. The trust does not owe its validity to the will. The statute of descent and distribution is untouched. The legal title passed to the heirs of Carrie Simons when she died intestate, but equity deals with the holder of the legal title for the wrong done in preventing the execution of the will and impresses a trust on the property in favor of the one who is in good conscience entitled to it.’

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

* * * * *

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

In Bounds,[12] the Texas Supreme Court adopts Pritchett’s “modern view” and approves the use of a constructive trust to trump the constitutional and statutory inheritance rights and rights to insurance death benefits. The reason is simple. The court doesn’t like the result if the constitution and law is followed, so it adopts a “modern” legal fiction to overcome the constitution and law. A court which sometimes claims that it will not tolerate form over substance uses form over substance to achieve the result it desires. Instead of suggesting changes in the Texas constitution and law, the Texas Supreme Court effectively nullifies the law while denying that it is doing so. Those who believe courts should reach the result they like and announce that the law supports that result will find Bounds comforting. Those who believe judges should apply the law, but not make the law, will find Bounds troubling. Regardless of your judicial philosophy, it is clear that the court thought Bounds was very modern, as viewed in the 1950s, and even in 1978. Of course, what Texas courts thought of as “modern” was the view advocated by Professor Ames in 1897, 81 years before Bounds, and presumably before any party, attorney, or jurist in Bounds was born. That made it only slightly more “modern” than the Texas constitution and less “modern” than the 1912 case of Hill v. Noland.[13]

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

“This is an appeal from two separate judgments resulting from a consolidated jury trial of an appeal from a probate proceeding and a tort action. The suits resulted from the death by gunshot of Mrs. Robbie Bounds. The children of Mrs. Bounds, Kerry Tyrone Caudle and Cheryl Kay Caudle, alleged and the jury found that their stepfather, Dr. L. D. Bounds, intentionally and wrongfully caused their mother's death. The trial court rendered judgment in the probate proceeding which admitted the will of Mrs. Bounds to probate, but disqualified Dr. Bounds to serve as Independent Executor of the estate. Judgment was rendered in the tort action whereby a constructive trust in favor of the children was imposed on all of Mrs. Bounds' property which would have passed to Dr. Bounds under her will, and they were granted the proceeds of a life insurance policy on Mrs. Bounds' life payable to Dr. Bounds.[14] The two children were also awarded the damages found by the jury for their claim under Art. 4651 et seq. for the wrongful death of their mother. The court of civil appeals affirmed the judgment in the probate proceeding, and it upheld the imposition of the constructive trust and the award of the insurance proceeds. It reversed and rendered a take-nothing judgment on the claim for wrongful death.[15] We reverse the judgments of the lower courts and remand the cause to the trial court for a new trial.

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

BOUNDS APPLICATION

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

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

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

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

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

“Although the conviction for negligent homicide implies that the killing was committed without intent, it is settled law that the judgment in the criminal case was not binding[16] upon the court in the civil proceeding.[17] This rule is particularly applicable here where the conviction was based upon plea bargaining.[18]

“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.[19] 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.[20] 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.[21]

“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.[22]

“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.[23] 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[24] and Sias v. State.[25] 3[26] 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.[27]

“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.