Filed 4/29/10               NO. 4-09-0658

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

                                       )    Appeal from
ALYCIA L. DOUGHERTY, as Administratrix )    Circuit Court of
of the Estate of JANE ANN COLE,        )    Macon County
Deceased,                              )    No. 08P192
          Petitioner-Appellee,         )
          v.                           )    Honorable
JACK JASON COLE, JR.,                  )    Albert G. Webber,
          Respondent-Appellant.        )    Judge Presiding.
_________________________________________________________________

          JUSTICE POPE delivered the opinion of the court:

          In October 2008, petitioner, Alycia L. Dougherty, in

her capacity as administratrix of the estate of Jane Ann Cole,

filed a three-count complaint concerning the estate of her

deceased mother.    Count I sought a determination of (1) whether

respondent, Jack Jason Cole, Alycia's brother, caused Jane's

death and if so, (2) whether Jack was barred from receipt of

Jane's property pursuant to section 2-6 of the Probate Act of

1975 (Probate Act) (755 ILCS 5/2-6 (West 2008)), commonly re-

ferred to as the "Slayer Statute."   Count II alleged Jack wrong-

fully caused the death of the decedent under section 2 of the

Wrongful Death Act (740 ILCS 180/2 (West 2008)) and sought

damages therefor.   Count III requested attachment of Jack's

property pursuant to section 4-101 of the Code of Civil Procedure

(735 ILCS 5/4-101 (West 2008)).   Jack raised insanity as an

affirmative defense to each count of the complaint.
          In August 2009, the trial court (1) found Jack was

excluded from taking property from Jane's estate pursuant to the

Slayer Statute, (2) awarded Alycia $200,000 on the wrongful-death

count, and (3) attached Jack's interest in two accounts for which

his mother named him a beneficiary.     Jack appeals each of the

court's determinations.   We affirm.

                            I. BACKGROUND

          On June 7, 2008, Jack suffered a severe manic episode

and beat and stabbed his mother to death in her home, where he

had been living with her.   Jane died intestate, leaving Jack and

Alycia as her only heirs.   In July 2008, Alycia was issued

letters of administration for her mother's estate.

          In June 2008, Jack was charged by the Macon County

State's Attorney with first degree murder in case No. 08-CF-770.

An August 2008 psychiatric evaluation revealed that at the time

of the killing, Jack suffered a severe manic episode with psy-

chotic features and, as a result of those symptoms, was incapable

of appreciating the criminality of killing his mother.     In

November 2008, Jack was found not guilty of first degree murder

by reason of insanity.

          In October 2008, Alycia filed a petition pursuant to

the Slayer Statute.   755 ILCS 5/2-6 (West 2008).    Specifically,

Alycia sought to bar Jack from recovering his half of their

mother's assets, which amounted to approximately $114,000 and


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included a thrift savings plan and Federal Employee's group life

insurance policy under which he was a 50% beneficiary.

          In May 2009, both parties provided the trial court with

memoranda of law.   Alycia argued the Slayer Statute precluded

Jack from any recovery because he intentionally and unjustifiably

caused the death of his mother.    Alycia contended the question

for the court was whether Jack killed his mother intentionally

despite his insanity.   Jack argued applying the Slayer Statute to

a criminally insane person does not further the purpose of the

statute or have any legitimate public-policy objectives.    In July

2009, the court determined Jack was barred from receiving any

property from his mother's estate under the Probate Act, found

Jack liable in the wrongful-death action, and attached any of

Jane's assets for which Jack was named a beneficiary.

          This appeal followed.

                           II. ANALYSIS

                         A. Slayer Statute

          Issues of statutory construction are reviewed de novo.

Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385,

389, 909 N.E.2d 830, 833 (2009).    In construing a statute, our

main objective is to ascertain and give effect to our legisla-

ture's intent.   Weather-Tite, Inc., 233 Ill. 2d at 389, 909

N.E.2d at 833.   Alycia identifies a Washington case holding that

the Washington's version of the slayer statute there was invoked


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to bar an insane, murderous beneficiary from taking in the

absence of a criminal conviction.   See In re Estate of Kissinger,

166 Wash. 2d 120, 122, 206 P.3d 665, 666 (2009) (a person who

participates in the "wilful and unlawful" killing of person is

prohibited from receiving any benefit resulting from his act).

Jack identifies several cases from other jurisdictions finding an

insane, murderous beneficiary may inherit from his victim absent

a criminal conviction.   See In re Estate of Brumage, 460 So.

2d 989, 990 (Fla. 1984), citing Fla. Stat. §732.802 (1979)

("A person convicted of the murder of a decedent shall not

be entitled to inherit from the decedent or to take any part

of his estate as a devisee"    (emphasis added); see also Fla.

Stat. Ann. §732.802, Amendment Note, at 306 (West 2005));

Turner v. Estate of Turner, 454 N.E.2d 1247, 1249 n.4 (Ind.

App. 1983) (A person who shall have been legally convicted

of intentionally causing the death of another (emphasis

added) shall not take from the estate of the decedent for

whose death that person caused), quoting Ind. Code Ann. §29-

1-2-12 (Michie 1979) (repealed by Pub. L. 147-1984, §2, eff.

May 1, 1984), now Ind. Code. Ann. §29-1-2-12.1 (Michie

2000)); In re Estate of Vadlamudi, 183 N.J. Super. 342, 349,

443 A.2d 1113, 1117 (1982) (codifying New Jersey case law on

the effect of a homicide of a decedent and holding "under

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N.J.S.A. 3A:2A-83 [(N.J. Stat. Ann. §3A:2A-83 (West 1977)

(recodified by 1981 N.J. Laws 405 (N.J. Stat. Ann. §3B:7-1

(West 1981) (repealed by 2004 N.J Laws 132)), now N.J. Stat.

Ann. §3B:7-1.1 (West 2007)),] the perpetrator of a homicidal

act committed while legally insane cannot be, as a matter of

law, one 'who intentionally kills' within the meaning of

that section").    While we find other jurisdictions' treatment

of the same issue interesting, those cases are not on point as

they apply differently worded statutes or, as in the case of the

New Jersey statute, specifically adopted New Jersey case law on

the topic.   The split among courts leaves us to determine how our

own legislature intended the statute to be interpreted.

           When the intent of the legislature is unclear, we may

use aids of construction to ascertain the meaning of a statute.

O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d

421, 446, 892 N.E.2d 994, 1010 (2008).    To resolve the competing

interpretations of the Slayer Statute presented by the parties,

we consider the legislative history of the statute.   See O'Casek,

229 Ill. 2d at 446, 892 N.E.2d at 1010.

           We initially provide a brief history of the Slayer

Statute.   In 1939, the Laws of the State of Illinois provided

"[a] person who is convicted of the murder of another shall not

inherit from the murdered person" (Ill. Rev. Stat. 1939, ch. 3,

par. 167), and a "devise or legacy to a person who is convicted

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of the murder of the testator *** is void" (Ill. Rev. Stat. 1939,

ch. 3, par. 200).   These rules were adopted in sections 2-6 and

4-12 of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, pars. 2-6,

4-12) (effective January 1, 1976) and then recodified in 1977

(Ill. Rev. Stat. 1977, ch. 110 1/2, pars. 2-6, 4-12).    In 1983,

Public Act 83-271 amended the law to read as follows:

               "A person who intentionally and unjusti-

          fiably causes the death of another shall not

          receive any property, benefit, or other in-

          terest by reason of the death, whether as

          heir, legatee, beneficiary, joint tenant,

          survivor, appointee or in any other capacity

          and whether the property, benefit, or other

          interest passes pursuant to any form of title

          registration, testamentary or nontestamentary

          instrument, intestacy, renunciation, or any

          other circumstance."    Pub. Act. 83-271, §2-6,

          eff. September 9, 1983 (1983 Ill. Laws 1986,

          1987) (amending Ill. Rev. Stat. 1983, ch. 110

          1/2, par. 2-6 and repealing par. 4-12).

The statute applies to deaths occurring on or after September 9,

1983.

          Whether an insane killer was barred from taking from

his victim's estate was originally a matter of common law.   In


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1961, the First District held the estate of a husband found to be

insane when he killed his wife was not precluded from taking the

proceeds of the wife's insurance policy.    Blair v. Travelers

Insurance Co., 30 Ill. App. 2d 191, 197-98, 174 N.E.2d 209, 212

(1961).

          In 1987, the federal District Court of the Northern

District of Illinois reasoned Illinois's murderous beneficiary

rule did not apply if the murderer was insane when he killed.

Lincoln National Life Insurance Co. v. Johnson, 669 F. Supp. 201,

203 (N.D. Ill. 1987).   The court recognized the insured in that

case died in 1982, prior to the September 9, 1983, effective date

of the statutory amendment, but noted the statute as it read

after the amendment was not significantly different.    We strongly

disagree with the court's interpretation of the legislature's

amendment.   The statute originally excluded a person who was

convicted of murder, whereas the amendment disposed of the

conviction requirement and only required the intentional and

unjustifiable cause of another's death.    This change signifi-

cantly broadened the scope of beneficiaries who fell under the

statute from only those convicted of murder to anyone who inten-

tionally and unjustifiably causes a death, without regard to

whether a criminal conviction results therefrom.    In addition, it

significantly broadened the types of transfers covered by the

statute from inheritances and legacies to any transfer of prop-


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erty resulting from intentionally and unjustifiably causing the

death of another.

           Jack argues this court should interpret the Slayer

Statute as adopting the common-law rule established in Blair,

similar to the federal court's interpretation in Lincoln National

Life.   See Winnebago County Citizens for Controlled Growth v.

County of Winnebago, 383 Ill. App. 3d 735, 746, 891 N.E.2d 448,

458-59 (2008) (a statute that applies to an area of law formerly

governed by common-law rules should be interpreted as adopting

the common law unless the legislature specified its intent to

change the common law).   However, our supreme court has deter-

mined the "Probate Act superseded the common law concerning

descent and distribution."   State Farm Life Insurance Co. v.

Smith, 66 Ill. 2d 591, 595, 363 N.E.2d 785, 786 (1977), citing

Wall v. Pfanschmidt, 265 Ill. 180, 189-90, 106 N.E. 785, 788

(1914).   Thus, we rely on the language of the statute to deter-

mine whether Jack may rightfully recover from his mother's

estate.   In so doing, we must determine whether Jack   "intention-

ally and unjustifiably" caused the death of his mother.    755 ILCS

5/2-6 (West 2008).

           At the time State Farm was decided, there was no

statute which disqualified a beneficiary who killed an insured

from receiving proceeds of a life-insurance policy.     State Farm,

66 Ill. 2d at 595, 363 N.E.2d at 786.   The Probate Act at that


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time only prohibited inheritances, devises, and legacies from

taking effect when the estate beneficiary was convicted of the

murder of the decedent.   Ill. Rev. Stat. 1971, ch. 3, pars. 15a,

49a.   Thus, the issue of whether a person who caused the death of

an insured could take the proceeds of a life-insurance policy was

controlled by the common law at that time.   The amendment to the

statute in 1983 not only eliminated the need for a murder convic-

tion, but also codified application of the "intentional and

unjustified" standard to any property, benefit, or other interest

a person might receive by reason of a death he caused, whether as

an heir, legatee, beneficiary, joint tenant, survivor, appointee,

or in any other capacity.   Thus, now the Probate Act not only

governs descent and distribution, but all potential transfers of

property when a person intentionally and unjustifiably causes the

death of another.

           Interestingly, our supreme court in State Farm framed

the issue in that case as whether, absent a criminal conviction

and assuming the murder was "intentional and unjustified," the

beneficiary was precluded from taking under a life-insurance

policy.   State Farm, 66 Ill. 2d at 595, 363 N.E.2d at 786.    It

answered that question in the affirmative.   The 1983 amendment of

the Slayer Statute adopted the standard as expressed in State

Farm and used the same "intentional and unjustified" language as

our supreme court in that case.


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          To prevent a beneficiary from taking under the Slayer

Statute, a party must prove the decedent was intentionally and

unjustifiably killed by the beneficiary.      In re Estate of

Malbrough, 329 Ill. App. 3d 77, 81, 768 N.E.2d 120, 123 (2002).

As the trial court points out, the only Illinois state court case

to consider whether a murderous beneficiary who escaped convic-

tion by reason of insanity may take from the victim's estate is

Button v. Elmhurst National Bank, 169 Ill. App. 3d 28, 37-38, 522

N.E.2d 1368, 1374 (1988).

          In Button, the State obtained grand-jury indictments

charging the victims' son with their murder.      Button, 169 Ill.

App. 3d at 32, 522 N.E.2d at 1371.      He was found unfit to stand

trial and was instead committed.     Button, 169 Ill. App. 3d at 33,

522 N.E.2d at 1371.   At the time of the murder in 1969, the

Probate Act provided "'[a] person who is convicted of the murder

of another shall not inherit from the murdered person.'"         Button,

169 Ill. App. 3d at 37, 522 N.E.2d at 1374, quoting Ill. Rev.

Stat. 1969, ch. 3, par. 15a.   The Second District held the

statute allowed inheritance absent a murder conviction.         Button,

169 Ill. App. 3d at 38, 522 N.E.2d at 1374.

          Since Button was decided, the legislature has removed

"convicted" from the Slayer Statute and a beneficiary is barred

from taking for "intentionally and unjustifiably" causing a

death.   As the trial court in this case noted, Jane's murder was


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not justifiable, and no one has argued otherwise.    Jack testified

he intended to kill but only did so at the direction of a voice

inside his head.   A psychiatrist (in the criminal case) deter-

mined Jack was suffering from a severe manic episode with psy-

chotic features when he killed his mother.    As a result of those

symptoms, he was incapable of appreciating the criminality of his

conduct.

           In a thoughtful, well-reasoned order, the trial court

found Jack intended to kill Jane but lacked criminal intent due

to mental illness.   Having arrived at that conclusion, the court

framed the remaining issue as whether lack of criminal intent

barred application of the Slayer Statute.    In finding it did not,

the court reasoned the earlier version of the Slayer Statute

required a conviction to bar inheritance.    By removing that

requirement, the legislature intended for the probate court to

consider only whether the murderous act was intentional and

unjustified, regardless of the institution or outcome of any

criminal proceedings.   As no exception for mental illness was

provided in the statute, the court concluded Jack's conduct

excluded him from inheriting from Jane's estate.

           We agree with the trial court's findings.   Jack testi-

fied he knew the person he beat and stabbed was his mother, even

though he was being "told" she was the enemy.    Further, he

testified he knew he was grabbing the knife and trying to kill


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her when he stabbed her.

            The legislature's amendment to the statute supports the

conclusion that a beneficiary's intentional and unjustifiable

causing of death, regardless of the criminality of the act, is

sufficient to bar inheritance.     The legislative history on the

bill proposing the amendment likewise supports this conclusion.

At the April 7, 1983, House debate on House Bill 108, Representa-

tive Cullerton asked for clarification on what the proposed bill

would do.    Representative Van Duyne replied as follows:

            "It really tries to address itself to a crack

            in the law where there are three parts that

            aren't covered.   The people who are convicted

            are now prohibited from inheriting the es-

            tate, but those found by a criminal court to

            be not guilty by reason of insanity, by this

            [b]ill, remains mute on, those acquitted in a

            criminal liability, although they are in fact

            culpable, are charged, those who have managed

            to escape the criminal trial despite the

            culpability."   83d Ill. Gen. Assem., House

            Proceedings, April 7, 1983, at 60   (state-

            ments of Representative Van Duyne).

While Representative Van Duyne's wording is somewhat confusing,

he appears to make the point that the law at the time prohibited


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a convicted killer from inheriting, and the amendment to the law

would extend the bar from taking to acquitted, insane killers who

killed intentionally and unjustifiably.

           At the June 20, 1983, third reading of the bill in the

Senate, Senator Berman stated "House Bill 108 prohibits a person

who intentionally and unjustifiably causes another[']s death from

inheriting or otherwise receiving property or other interest by

reason of such person[']s death.    This is a gap that has been in

our civil law for a long time."    83d Ill. Gen. Assem., Senate

Proceedings, June 20, 1983, at 113 (statements of Senator Berman-

).

            We conclude the trial court's application of the

Slayer Statute in this instance was correct.    Where, as here, an

individual was insane for criminal purposes but nevertheless

cognizant he was killing a person, the Slayer Statute will

prevent him from benefitting from his actions.

                      B. Wrongful-Death Suit

           Jack argues this court should overturn established

Illinois law allowing recovery by a victim's estate in a

wrongful-death action for a death caused by an insane killer.     In

McIntyre v. Sholty, 121 Ill. 660, 664, 13 N.E. 239, 240 (1887),

our supreme court held an insane defendant who is not criminally

liable may still be liable in a civil suit for torts he commit-

ted.   As a matter of policy, the court reasoned those injured by


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a lunatic's actions would suffer more injustice if denied compen-

sation than the estate of the insane individual would suffer by

compensating his victims.    McIntyre, 121 Ill. at 664, 13 N.E. at

240.   Additionally, the court observed civil liability for a

mentally incompetent individual's torts promotes better custody

and guardianship practices for the mentally ill. McIntyre, 121

Ill. at 664-65, 13 N.E. at 240.    Further, a rule to the contrary

poses the risk of defendants simulating insanity to avoid liabil-

ity for their torts.    McIntyre, 121 Ill. at 665, 13 N.E. at 240.

           This court relied on McIntyre in Robert v. Hayes, 284

Ill. App. 275, 278, 1 N.E.2d 711, 712 (1936), to decide a trial

court did not err in refusing to instruct the jury on the ques-

tion of insanity as a defense to causing the decedent's death.

In Vosnos v. Perry, 43 Ill. App. 3d 834, 837, 357 N.E.2d 614, 616

(1976), the First District reversed the trial court's finding the

defendant's lack of capacity to form criminal intent in carrying

out a murder was a "complete defense" in a wrongful-death suit

against the insane murderer.   Jack argues this holding should be

interpreted as providing insanity could be "some type of defense"

because it was not a "complete defense."   We do not agree with

Jack's interpretation of Vosnos.

           Vosnos stands for the proposition that insanity is not

an affirmative defense to a wrongful-death suit, not that it may

be a partial defense.   Moreover, Vosnos recognized McIntyre as


                               - 14 -
controlling.   In discussing the policy reasons behind its deci-

sion, the court noted where two innocent parties suffer losses,

the party who occasioned the loss should bear responsibility for

it.   Vosnos, 43 Ill. App. 3d at 837, 357 N.E.2d at 615.     Vosnos

also adopted the principle that someone who engages in violent

acts should make financial restitution to his victim.      Vosnos, 43

Ill. App. 3d at 837, 357 N.E.2d at 615.      Vosnos agreed with

McIntyre's observation that a policy prohibiting civil liability

for insane murderers may encourage pleas of insanity in civil

suits.   Vosnos, 43 Ill. App. 3d at 837, 357 N.E.2d at 616.       Those

same policy reasons still ring true today.

           Defendant presents no law or policy arguments motivat-

ing us to deviate from established Illinois law in this area.

Thus, we hold the trial court did not err in granting judgment in

Alycia's favor in the wrongful-death action.

                         C. $200,000 Award

           Respondent argues the trial court's award of $200,000

to Alycia in wrongful-death damages is outside the limit of fair

and reasonable compensation.   The trier of fact is responsible

for fixing a wrongful-death award, and we will not disturb the

amount unless it was the result of passion or prejudice.

Goldstein v. Hertz Corp., 16 Ill. App. 3d 89, 98, 305 N.E.2d 617,

625 (1973).

           Jack does not provide supporting law for his assertion


                               - 15 -
that the $200,000 was not fair and reasonable.       Rather, he argues

this court should consider the injury he caused himself by

killing his mother.     While we acknowledge Jack, as well as his

sister, has suffered tremendously, we must limit our consider-

ation of this issue to Alycia's injury.       Considering Alycia's

close relationship with her mother and the manner in which she

died, $200,000 is not outside the scope of fair and reasonable

compensation.    See Eaglin v. Cook County Hospital, 227 Ill. App.

3d 724, 734-35, 592 N.E.2d 205, 212 (1992) ($1.5 million verdict

not excessive where mother of adult decedent was close with her

daughter and shared the compensation with 13 other individuals).

                D. Attachment of Respondent's Accounts

            As we have determined Jack falls under the purview of

the Slayer Statute and is liable in the wrongful-death action,

the issue he raises relating to attachment is moot.

                            III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            MYERSCOUGH, P.J., and KNECHT, J., concur.




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