                                                                                    R-408
                                        OFFICE          OF
                       THE ATTORNEY GENERAL

PRICEDANIEL
/aTTcmNEYGENER.M.                     May    29, 1947



     Honorable S. J. Isaacks,          Chairman~
     Judiciary Comittee
     House of Representatives
     Austin, Texas
                                       Opinion No. V- 228
                                       Re:    Constitutionality
                                              of House Bill No.
                                              739.
     Dear Sir:
                     Your statement    and request      for an opinion    is   in
     part as       r0110ws:

                  "The Judiciary   Connnittee of the House or
            Representatives   has instructed    me, as Chainnan
            of the Committee, to request from you a ruling
            as to the constitutionality      of House Bill No.
            739, and particularly     in its relation  to Arti-
            cle I, Section 21 of the Texas Constitution."
               This bill prevents the acquisition   of any ,prop-
     erty by one who wilfully  and u,nlawfully takes or procures
     to be taken thle life of another, as the result of such
     death.  It changes the laws of descent and distribution
     and the vesting of estates to acoomplish this purpose.

   1follows    :
                     Article   3314 of Vernon's      Civil   Statutes   reads as

                  "When a person dies, leaving a lawful
            will,  all of his estate devised or bequeath-
            ed by such will shall vest itnnediately in the
            devisees or legatees;   and all the estate of
            such person, not devised or bequeathed, shall
            vest innnediately in his heirs at law; subject
Honorable   S. J. Isaaoks   - Page 2


     however, to the payment of the debts of the
     testator   or intestate,     except such as may be
     ex,empted by law; and, whenever a person dies
     intestate,    all of his estate shall vest im-
     mediately in his heirs at law, but with the
     exceptions aforesaid       shall still    be liable
     and subject in their hands to the payment of
     the debts of the intestate;        but upon the is-
     suance of letters      testamentary or of adminis-
     tration upon any such estate,         the executor or
     administrator     shall have the right to the pos-
     session of the estate as it existed at the
     death of the testator       or intestate,    with the
     exceptions aforesaid;       and he shall recover
     possession    of and hold such estate in trust
     to be disposed of in accordance with law.”
            House Bill No. 739 will change the above quoted
statute,   insofar as the vesting of an estate where a slay-
er, having an interest   in the estate of the deceased, is
concerned.
          Article   I,   Section   21 of the Texas Constitution,
reads as follows:
           “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. v
           To better understand our problem, let us first
look to the definition   of corruption of blood and forfeit-
ure or estate.    Volume 9 of Words and Phrases, at page
778, provides the rollowing   definition:
            v’Corruption    of blood’ was an incident
     on an attainder     for treason or felony.      The
     doctrine    of corruption    of blood was of ieu-
     da1 origin,    introduced after the Norman Con-
     quest.    The blood of the attainted      person was
     deemed to be corrupt,      so that neither could
     he transmit his estate to his heirs, nor
     could they take by desoent from the ances-
     tor.    The crime of the attainted     felon was
     deemed a breach of the implied condition         in
     the donation or the,feud       *dum bene seges-
     serit,’   and, the descent to his heirs being
     interrupted    by the corruption of blood, his
Honorable   S. J. Isaacks   - Page 3


     lands escheated to the lord.    But this es-
     cheat was subordinate to the prior and supe-
     rior law of forfeiture.    Avery v. Everett,
     18 N. E. 148, 150, 110 N. Y. 317, 1 L. R. A.
     26I+, 6 Am. St. Rep. 368."
            We already have a statute       in this State wherein
the beneficiary    of a life     insurance policy forreits     hie
rights to the proceeds by wilfully         bringing about the death
of the insured.      (Art. 5017,    V. C. S.).    The constitution-
ality  of this statute has not been raised in our Courts,
however.
            Other States have passed statutes wherein any
person convicted of killing     another shall not inherit any
property from the deceased by their wrongrul act, and the
constitutionality     of these statutes have been attaoksd on
substantially     the same grounds as provided in Article   I,
Section 21 of our Constitution.       Those states have oonsti-       '
tutionsl provisions     similar to our own regarding corrup-
tion of blood and forfeiture      of estates.    The Supreme
Court of Kansas in the case of Hamblin vs. Edna Marohant,
175 Pac. 678, passing on such a statute said:
            "The constitutionality   of the statute is
     questioned.     It is argued that it violates      L) g
     10 and 12 of the Bill of Rights, and 9 6 of
     Article   6, of the State Constitution,     and that
     it also violates the 14th Amendment of the Con-
     stitution    of the United states.    It is argued
     that the statute is penal and works a iorfeit-
     ure.    So far as the present action is conaern-
     ed, the statute changed the law of the devolu-
     tion of property,     on the death of the owner.
     The legislature     has entire control of that mat-
     ter.    The Law of Descents and Distribution       pres-
     cribes the way in which property shall go on the
     death of the owner, and the statute in question
     is merely an exception to the 8eneral rules pres-
     cribed by the Statute of Desoents and Distribu-
     tions.    The statute in question is a part of the
     Law of Descents and Distibutions,      and it.pro-
     vides that the property of a deceased owner
     shall not go to the person who took the owner's
     life.    Whether the person to whom the property
     would ordinarily     go took the owner's life is a
     question that must be judicially      determined by
     a court of competent jurisdiction.        The legisla-
     ture has seen fit to say that that fast must be
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Honorable    6. J. Isaacks    - Page 4


       ascertained   in a criminal prosecution    in which
       the person who would take the property is charg-
       ed with killing    the owned, When that fact is
       ascertained,    the property is not then taken from
       the person who would inherit,    but it is then de-
       termined that the person never did inherit,       and
       never did acquire any interest     in the property.
       The statute is not penal; it does not add any-
       thing to the punishment of the person convicted;
       neither does it provide for a forfeiture;       and
       nothing is taken from the person convicted.
       Edna Marchant never aoquired nor received any-
       thing that could be taken frctn her.     It follows
       that neither of the constitutional     provisions
       mentioned has been violated    by the statute.      The
       conclusion   reached is supported by Perry vs.
       Strawbridge,   209 MO. 621, 16 L. R. A. (N. S.)
       244, 123 Am. St. Rep. 510, 108 s. w. 641, 14
       AM. Cas. 92."
           In the case of Perry vs. Strawbridge,   108 5. W.
641,   209 MO. 621,it was held that the construction   of a
statute giving a widower one half the property of his child-
less wife, as not applying to one who murders his wife, is
not prevented by such a constitutional  provision.    The Court
said:
              "This construction      of the existing    stat-
       ute, or even an express statute,         as they have
       in Iowa, prohibiting        a murderer from inherit-
       ing from his victim,        does not violate    our con-
       stitutional      provision.    There is no farfeiture
       of an estate which he has, but it is simply
       preventing him from acquiring property in an
       unauthorized and unlawful way, i.e.,           by mur-
       der.     It takes nothing from him, but simply
       says:      'You cannot acquire property in this
       way.'     Nor does such a statute prevent his
       heirs from inheriting        through him property
       rightfully      his, at the time of his demise.
       The state cannot by law take a criminal's
       property,     but it can say to every individual
       citizen:       'You cannot aoquire property by des-
       ignated unlawful means.'          Such statutes vio-
       late no constitutional        provisions   either state
       or Federal."
             The annotations  in 6 A. L. R. 1408 on the constitu-
tionality    of such statutes reads in part as follows:
,      .




    Honorable   S. J. Isaocks   - Page 5


                  “This situation   has led to the adoption
           in various states 0r statutes       of the type in-
           volved in the reported case (Hamblin v. Mar-
           chant, ante 1403)) providing that anyone con-
           victed of killing     a person from whom he would
           have inherited     shall forfeit   such inheritable
           interest.     To these statutes two objections
           have been made on constitutional        grounds:
           First,    that they constitute    an impairment of
           a vested right, and, second, that they contra-
           vene constitutional     provisions   that no con-
           viction    shall work a forfeiture    of estate.
           Since there cannot be a forfeiture        of estate
           unless some vested right is interfered        with
           (see cases set forth,     infra),   both objections
           involve substantially     the same inquiry into
           the nature of the right which the statute
           operates to limit.
                  “Notwithstanding    the suggestion thrown
           out arguendo in several cases in support of
           the view that no exception can be made in the
           case of murderers, to the ordinary operation
           of the Statutes of Descent and Distribution,
           that a contrary conclusion would be at var-
           iance with the constitutional      provision   that
           no conviction    shall work a forfeiture     of es-
           tate, the courts which have had occasion di-
           rectly=                sis z;“”
                       consider the              have held-
           otherwiz.”      (Empha
               The only Texas cases we have found touching on
    this subject are Davis vs. Laning, 19 S. W. 846, Murchison
    vs. Murchison, 203 S. W. 423, and American National Insur-
    ance Company vs. Coates, 246 S. W. 356. The Davis vs. Lan-
    ing case by the Supreme Court of Texas held that a convict
    may either inherit himself or transmit inheritsnce.     The
    Murchison case held that although a wife who feloniously
    killed her husband could not collect   the proceeds Of an in-
    surance policy under the terms of such policy,    she was en-
    titled  to the money as surviving wife of the deceased when
    the Insurance Company paid the money to the husband’s es-
    tate.   The American National Insurance Company vs. Coates
    case held the heirs of the slayer were entitled    to the pro-
    ceeds of an insurance policy on the life of the deceased.
              All of the Texas cases cited were decided on the
    theory of the laws of descent and distribution    and we have
    found no case in point as to a construction    of Article I,
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Honorable   S. J. Isnacks   - Page 6


Section 21 of the Constitution from the view of a slayer
inheriting property from his wrongful act of killing    the
deceased.  We must, therefore, accept the construction
placed on such statutes by Courts of other jurisdictions.
           From the authorities   cited, we conclude that
the Legislature   can pass a constitutional  act to prevent
one who will'ully  and unlawfully takes or procures to be
taken the life of another, from acquiring property by
reason of such death.
            Your question is therefore answered that House
Bill No. 739 does not violate Article   I, Section 21 of the
Constitution.
           We call your attention to the caption of the bill
and suggest you delete the words "killed   another" and add
after the word Wunlawfullgn the following:    "taken or pro-
cured to be taken the life of another."    This would be in
conformity with the body of the Act.
                             SUMMARY
            House Bill No. 739, which prevents the ac-
     quisition   of any property by one who wilfully
     and unlawfully takes or procures to be taken the
     life of another, as the result of such death, is
     not violative    of Article   I, Section 21 of the
     Texas Constitution,     as prior to such death there
     is no vested interest      but only an inheritable    in-
     terest and there is actually no forfeiture         of an
     estate.    (6 A. L. R. 1408).

                                    Yours very truly
                              ATTORRRY
                                     GRNRRAL
                                           OF TBXAS



RAH/JMc                        By   4tirt$P.
                                                   Assistant

                                               APPROWD:


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