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District Court of Appeal, First District, Division 1, California.


Civ. 14493.

Decided: March 15, 1951

Chas. I. Rosin, Los Angeles, for appellant. Paul Friedman, San Francisco, for plaintiff in intervention and respondent.

When a husband who, ‘if living,’ is made the beneficiary of a life insurance policy on the life of his wife, is convicted of murdering his wife, as between the estate of the murdered woman and the alternative beneficiary named in the policy, who is entitled to the proceeds of that policy? That is the question presented on this appeal.

Herbert Beck, as the administrator of the estate of Lila Loly Downey, brought this action against the west Coast Life Insurance Company to recover the proceeds of a life police admittedly issued by the West Coast on the life of Lila. By the terms of that policy the husband of the insured, David Albert Downey, was made beneficiary ‘if living, otherwise to Jettie Knoll—Friend.’ The complaint alleges that Lila was murdered by her husband; that the husband has been convicted of the murder and has been sentenced to life imprisonment; that by reason of the murder David Downey is not entitled to the proceeds of the policy, and that the alternative beneficiary Jettie Knoll is not entitled because David is still living; that under such circumstances that estate of Lila is entitled to the proceeds.

Jettie Knoll was granted leave to intervene in the controversy. She alleges that David, having been convicted of the murder of his wife and sentenced to life imprisonment, is legally dead, and that, under such circumstances, she, as the alternative beneficiary, is entitled to the proceeds of the policy as against the insurance company and the administrator of Lila.

The insurance company has defended against both claims, alleging that the cause of death was not within the terms of the policy, and that the policy is null and void by reason of the fraud of David in securing the policy. The issues presented by the pleadings of the insurance company have not yet been passed upon and are not now before us.

After Beck, as administrator, had filed an answer to the complaint in intervention, alleging that Jettie Knoll cannot take as long as David is alive, Jettie Knoll moved for judgment on the pleadings as against the claims of Beck. The trial court granted the motion, holding that, as against Beck, Jettie Knoll is entitled to the proceeds of the policy, and that the action should proceed with Jettie Knoll as sole plaintiff against West Coast Life Insurance Company as defendant. Beck appeals, and that is the appeal now before us.

The basic contention of Beck is that since Jettie Knoll is entitled to take under the terms of the policy only if David Downey is not living, and since the pleadings disclose that David is living, the proceeds must be paid to the estate of the assured just as if no alternative beneficiary had been named in the policy. Appellant refers to the well settled rule that the language of a contract, if clear and explicit, must govern, and to the rule that the courts are without power to make a new contract for the parties if the contract is explicit, and urges that here the contract is clear and unambiguous, and that under its terms the alternative beneficiary cannot take if the named beneficiary is living.

It is well settled in practically all jurisdictions, including California, that, even in the absence of a statute so providing, a beneficiary of an insurance policy who murders the assured cannot take under the policy. Meyer v. Johnson, 115 Cal.App. 646, 2 P.2d 456; West Coast Life Ins. Co. v. Crawford, 58 Cal.App.2d 771, 138 P.2d 384. This rule is predicated upon sound public policy. It therefore follows that David Albert Downey has no interest in the proceeds of the policy.

By virtue of the life sentence for the murder of his wife, David Downey is civilly dead. Penal Code section 2601 (based upon former Penal Code section 674) provides in part: ‘A person sentenced to imprisonment in the State prison for life is thereafter deemed civilly dead. * * *’ Penal Code section 2603 (based upon former Penal Code section 675) provides: ‘The provisions of the last three preceding sections must not be construed to render the persons therein mentioned incompetent as witnesses by affidavit or deposition in a civil case or proceeding or by affidavit or deposition or personally in a criminal case or proceeding, or incapable of making a will, or incapable of making and acknowledging, a sale or conveyance of property.’

Under these sections when a person has been convicted and sentenced to a life term the courts, except as specifically limited in the section, have treated civil death as having the same legal effect as physical death. Thus in Re Estate of Donnelly, 125 Cal. 417, 58 P. 61, the facts were that Thomas Donnelly died intestate, leaving a widow and four children, or their successors. One of the sons, James Donnelly, was under a life sentence. The court distributed the estate to the widow and successors in interest of the other three children. James, while under the life sentence, assigned his interest in the estate to Stilwell. The latter claimed an interest in the estate of Thomas by virtue of the assignment. The Superme Court, in affirming a holding that the assignment at page 419, 58 P. at page 61: ‘If James had died a natural death at the time he was sentenced to imprisonment in the state prison for the term of his natural life, the correctness of the decree would be unquestioned, and for the purpose of any right of inheritance his civil death must have the same effect.’

In Matter of the Estate of Nerac, 35 Cal. 392, the court stated at page 396: ‘If the convict be sentenced for life, he becomes civiliter mortuus, or dead in law, in respect to his estate, as if he was dead in fact.’

It is also perfectly clear, in this state, that a murderer may not inherit from or through his victim. This is governed by statute. Section 258 of the Probate Code provides: ‘No person convicted of the murder of the decedent shall be entitled to succeed to any portion of the estate; but the portion thereof to which he would otherwise be entitled to succeed goes to the other persons entitled thereto under the provisions of this chapter.’ See West Coast Life Ins. Co. v. Crawford, 58 Cal.App.2d 771, 138 P.2d 384. In some respects the interest of a beneficiary under an insurance policy is similar to that of a legatee under a will. Grimm v. Grimm, 26 Cal.2d 173, 157 P.2d 841. However, this is not always true. See Turner v. Metropolitan Life Ins. Co., 56 Cal.App.2d 862, 133 P.2d 859. We are not inclined to base our decision upon the analogy of the Probate Code section, but predicate our opinion simply upon the terms of the insurance contract and the Penal Code sections heretofore quoted.

Here the proceeds of the policy were to go to Jettie Knoll if the prior named beneficiary was not ‘living.’ The prior named beneficiary is disqualified from taking and is civilly dead. While civil death is not identical with physical death in all respects, so far as the problem here presented is concerned there is no legal difference between the two. None of the cases cited by appellant suggests, far less compels, a contrary holding. While we have been cited to no case where the precise point here involved has been passed upon, what authorities that do exist strongly support the contention that when the murderer cannot take, even though still alive, the alternative beneficiary of the policy takes in preference to the estate of the victim. Vance on Insurance states the general rule as follows at page 599: ‘While the felonious act of the beneficiary will defeat his rights under the policy, it will not ordinarily extinguish the obligation of the insurer, unless it is so stipulated in the policy. If the contract involved is issued by a mutual benefit society, there is usually to be found in the charter or by-laws of the society, or in the statutes applicable, some provision for alternative beneficiaries in case the original designation fails. In such cases the courts easily determine that the disqualification of the felonious benficiary qualifies the substitute, who is entitled to receive the insurance money.’

The case of Metropolitan Life Ins. Co., v. McDavid, D.C., 39 F.Supp. 228, 229, is somewhat similar to the present case. In that case a husband and wife were the holders of a group life policy payable ‘to the wife or husband, if living, of such employee; if not living’ to certain alternative beneficiaries. The wife murdered her husband. The mother of the deceased was the closest alternative beneficiary. The contest over the proceeds was between the murderess wife, the administrator of the deceased, and the alternative beneficiary, the mother. The court held that the ‘rights of the parties shall be determined exactly as they would have been if Beatrice McDavid [the murderess beneficiary] had died prior to the death of her husband’. 39 F.Supp. at page 233. The proceeds of the policy were therefore given to the mother of the deceased, the alternative beneficiary. Unfortunately, the court did not specifically discuss the meaning of the words ‘if living’ in the beneficiary clause, but it is quite clear that the court believed that civil death, so far as this clause was concerned, was the equivalent of legal death. See, also, Equitable Life Assur. Soc. v. Weightman, 61 Okl. 106, 160 P. 629, L.R.A.1917B, 1210; Sharpless v. Grand Lodge A. O. U. W., 135 Minn. 35, 159 N.W. 1086, L.R.A.1917B, 670; 49 Harvard Law Rev. 715.

The parties also discuss section 189 of the Restatement of Restitution. Comment (a) on subsection (1) to that section reads: ‘If the beneficiary of a life insurance policy murders the insured, he is not entitled to receive and to keep the proceeds of the policy. In such a case, ordinarily the executor or administrator of the insured is entitled to receive the proceeds of the policy from the insurer and to apply them in the same way in which they would have been applicable if the beneficiary had predeceased the insured or was otherwise incapable of taking or disqualified from taking the proceeds. Ordinarily the proceeds would be applicable to the payment of the debts of the insured, and after payment of his debts would be payable to his residuary legatee, if any, and if none, to his next of kin.’

Of course this section does not directly discuss the rights between an alternative beneficiary and the estate of the victim. In the McDavid case, supra, the court interpreted the word ‘ordinarily’ in the comment to mean in the event no alternative beneficiary was named. We think that this was a proper construction.

This construction of the policy does not, as contended by appellant, result in this court making a new policy for the parties. Once it is determined that for the purpose of ascertaining who is entitled to the proceeds of a life insurance policy civil death is the equivalent of physical death, the words ‘if living’ must be interpreted to mean if civilly living or physically living. Such a construction, obviously, gives effect to what would have been the obvious intent of the assured had the problem been specifically presented to her.

Appellant also contends that the trial court should not have interpreted the policy as a matter of law on a motion for judgment on the pleadings, but should have awaited trial so that evidence might be admitted to explain the language used in the policy. While parol evidence may be admitted to explain an ambiguity, that exception to the rule does not permit parol evidence to vary the terms of a written instrument. No contention is made that any evidence on the issue of intent is available to appellant. Here the terms of the policy are clear and unambiguous. That being so, the court properly interpreted these terms as a question of law.

The judgment appealed from is affirmed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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