the living and the dead.pdf

8/22/2019 The Living and the Dead.pdf

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C H A P T E R O N E

INTRODUCTION

SECTION I. THE LIVING AND THE DEAD:WHOSE MONEYIS IT?

Has a dead man any use for money? Is it possible for a dead man

to have any money? What world does a dead man belong to?

Tother world. What world does money belong to? This world. Howcan money be a corpses? Can a corpse own it, want it, spend it,claim it, miss it?

Gaffer Hexam, inCharles Dickens, Our Mutual Friend (1865)

Money may be of no value to a corpse, but living people who haveaccumulated money often have strong opinions about what should happento their money after they die. Trusts and Estates lawyers play animportant role in advising and assisting clients who want to arrange fordisposition of their assets after death.

Before we consider the lawyers role in the wealth transmission pro-cess, lets consider Gaffer Hexams questions more seriously. Why shouldwe allow people who have passed to tother world to control wealth inthis world? And how much control should we permit people in totherworld to exercise? Consider the following case:

Shapira v. Union National BankOhio Common Pleas Court, Probate Division, 1974.

39 Ohio Misc. 28, 315 N.E.2d 825.

t HENDERSON,J.:

This is an action for a declaratory judgment and the construction ofthe will of David Shapira, M.D., who died April 13, 1973, a resident of thiscounty. By agreement of the parties, the case has been submitted upon thepleadings and the exhibit.

The portions of the will in controversy are as follows:Item VIII. All the rest, residue and remainder of my estate, real and

personal, of every kind and description and wheresoever situated,which I may own or have the right to dispose of at the time of my

decease, I give, devise and bequeath to my three (3) beloved children,

to wit: Ruth Shapira Aharoni, of Tel Aviv, Israel, or wherever she mayreside at the time of my death; to my son Daniel Jacob Shapira, and to


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2 CHAPTER ONE INTRODUCTION

my son Mark Benjamin Simon Shapira in equal shares, with the

following qualifications: * * *

(b) My son Daniel Jacob Shapira should receive his share of the

bequest only, if he is married at the time of my death to a Jewish girl

whose both parents were Jewish. In the event that at the time of my

death he is not married to a Jewish girl whose both parents were

Jewish, then his share of this bequest should be kept by my executor

for a period of not longer than seven (7) years and if my said son

Daniel Jacob gets married within the seven year period to a Jewish girl

whose both parents were Jewish, my executor is hereby instructed to

turn over his share of my bequest to him. In the event, however, that

my said son Daniel Jacob is unmarried within the seven (7) years after

my death to a Jewish girl whose both parents were Jewish, or if he is

married to a non Jewish girl, then his share of my estate, as provided

in item 8 above should go to The State of Israel, absolutely.

The provision for the testators other son Mark, is conditioned substan-tially similarly. Daniel Jacob Shapira, the plaintiff, alleges that the condi-tion upon his inheritance is unconstitutional, contrary to public policy andunenforceable because of its unreasonableness, and that he should be givenhis bequest free of the restriction. Daniel is 21 years of age, unmarried anda student at Youngstown State University.

* * *

CONSTITUTIONALITY

Plaintiffs argument that the condition in question violates constitu-tional safeguards is based upon the premise that the right to marry is

protected by the Fourteenth Amendment to the Constitution of the UnitedStates. Meyer v. Nebraska (1923), 262 U.S. 390; Skinner v. Oklahoma(1942), 316 U.S. 535; Loving v. Virginia (1967), 388 U.S. 1. In Meyer v.

Nebraska, holding unconstitutional a state statute prohibiting the teachingof languages other than English, the court stated that the FourteenthAmendment denotes the right to marry among other basic rights. InSkinner v. Oklahoma, holding unconstitutional a state statute providing forthe sterilization of certain habitual criminals, the court stated that mar-riage and procreation are fundamental to the very existence and survival of

the race. In Loving v. Virginia, the court held unconstitutional as violativeof the Equal Protection and Due Process Clauses of the FourteenthAmendment an antimiscegenation statute under which a black person anda white person were convicted for marrying. In its opinion the United

States Supreme Court made the following statements at page 12:

There can be no doubt that restricting the freedom to marry solely

because of racial classifications violates the central meaning of the

Equal Protection Clause.

* * * The freedom to marry has long been recognized as one of the

vital personal rights essential to the orderly pursuit of happiness by

free men.


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3SECTION I. THE LIVING AND THE DEAD

Marriage is one of the basic civil rights of man, fundamental to ourvery existence and survival. * * * The Fourteenth Amendment re-

quires that the freedom of choice to marry not be restricted byinvidious racial discriminations. Under our Constitution, the freedomto marry, or not marry, a person of another race resides with theindividual and cannot be infringed by the State.

From the foregoing, it appears clear, as plaintiff contends, that theright to marry is constitutionally protected from restrictive state legislativeaction. Plaintiff submits, then, that under the doctrine of Shelley v.Kraemer (1948), 334 U.S. 1, the constitutional protection of the FourteenthAmendment is extended from direct state legislative action to the enforce-ment by state judicial proceedings of private provisions restricting the rightto marry. Plaintiff contends that a judgment of this court upholding thecondition restricting marriage would, under Shelley v. Kraemer, constitutestate action prohibited by the Fourteenth Amendment as much as a state

statute.

In Shelley v. Kraemer the United States Supreme Court held that theaction of the states to which the Fourteenth Amendment has referenceincludes action of state courts and state judicial officials. Prior to thisdecision the court had invalidated city ordinances which denied blacks theright to live in white neighborhoods. In Shelley v. Kraemer owners ofneighboring properties sought to enjoin blacks from occupying propertieswhich they had bought, but which were subjected to privately executedrestrictions against use or occupation by any persons except those of theCaucasian race. Chief Justice Vinson noted, in the course of his opinion atpage 13: These are cases in which the purposes of the agreements weresecured only by judicial enforcement by state courts of the restrictive terms

of the agreements.In the case at bar, this court is not being asked to enforce any

restriction upon Daniel Jacob Shapiras constitutional right to marry.Rather, this court is being asked to enforce the testators restriction uponhis sons inheritance. If the facts and circumstances of this case were suchthat the aid of this court were sought to enjoin Daniels marrying a non-Jewish girl, then the doctrine of Shelley v. Kraemer would be applicable,but not, it is believed, upon the facts as they are.

Counsel for plaintiff asserts, however, that his position with respect tothe applicability of Shelley v. Kraemer to this case is fortified by two laterdecisions of the United States Supreme Court: Evans v. Newton (1966), 382U.S. 296 and Pennsylvania v. Board of Directors of City Trusts of the Cityof Philadelphia (1957), 353 U.S. 230.

Evans v. Newton involved land willed in trust to the mayor and citycouncil of Macon, Georgia, as a park for white people only, and to becontrolled by a white board of managers. To avoid the citys having toenforce racial segregation in the park, the city officials resigned as trusteesand private individuals were installed. The court held that such successortrustees, even though private individuals, became agencies or instrumental-ities of the state and subject to the Fourteenth Amendment by reason of


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their exercising powers or carrying on functions governmental in nature.The following comment of Justice Douglas seems revealing: If a testator

wanted to leave a school or center for the use of one race only and in noway implicated the State in the supervision, control, or management of thatfacility, we assume arguendo that no constitutional difficulty would beencountered. 382 U.S. 300.

The case of Pennsylvania v. Board, as the full title, above, suggests, is acase in which money was left by will to the city of Philadelphia in trust fora college to admit poor white male orphans. The court held that the boardwhich operated the college was an agency of the state of Pennsylvania, andthat, therefore, its refusal to admit the plaintiffs because they were negroeswas discrimination by the state forbidden by the Fourteenth Amendment.

So, in neither Evans v. Newton nor Pennsylvania v. Board was thedoctrine of the earlier Shelley v. Kraemer applied or extended. Both of

them involved restrictive actions by state governing agencies, in one casewith respect to a park, in the other case with respect to a college. Althoughboth the park and the college were founded upon testamentary gifts, thestate action struck down by the court was not the judicial completion of thegifts, but rather the subsequent enforcement of the racial restrictions bythe public management.

Basically, the right to receive property by will is a creature of the law,and is not a natural right or one guaranteed or protected by either the Ohioor the United States constitution. Patton v. Patton (1883), 39 Ohio St. 590;Hagerty v. State (1897), 55 Ohio St. 613; State, ex rel. Taylor v. Guilbert(1904), 70 Ohio St. 229; Magoun v. Illinois Trust and Savings Bank (1898),170 U.S. 283; 55 Ohio Jurisprudence 2d 535, Wills, Section 64; 57 AmericanJurisprudence 138, Wills, Section 153. It is a fundamental rule of law inOhio that a testator may legally entirely disinherit his children

TTTTThis

would seem to demonstrate that, from a constitutional standpoint, atestator may restrict a childs inheritance. The court concludes, therefore,that the upholding and enforcement of the provisions of Dr. Shapiras willconditioning the bequests to his sons upon their marrying Jewish girls doesnot offend the Constitution of Ohio or of the United StatesTTTT

PUBLIC POLICY

The condition that Daniels share should be turned over to him if heshould marry a Jewish girl whose both parents were Jewish constitutes apartial restraint upon marriage. If the condition were that the beneficiarynot marry anyone, the restraint would be general or total, and, at least in

the case of a first marriage, would be held to be contrary to public policyand void. A partial restraint of marriage which imposes only reasonablerestrictions is valid, and not contrary to public policy: 5 BoweParker: Pageon Wills 460, Section 44.25; 56 Ohio Jurisprudence 2d 243, Wills, Section729; 52 American Jurisprudence 2d 1023, Marriage, Section 181. The greatweight of authority in the United States is that gifts conditioned upon thebeneficiarys marrying within a particular religious class or faith arereasonable. 5 BoweParker; Page on Wills 461, Section 44.25TTTT


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Plaintiff contends, however, that in Ohio a condition such as the one inthis case is void as against the public policy of this state. In Ohio, as

elsewhere, a testator may not attach a condition to a gift which is inviolation of public policy. 56 Ohio Jurisprudence 2d 238, Wills, Section 722;Neidler v. Donaldson (P.C. Seneca 1967), 9 Ohio Misc. 208, 224 N.E. 2d404, 38 O. O. 2d 360. There can be no question about the soundness ofplaintiffs position that the public policy of Ohio favors freedom of religionand that it is guaranteed by Section 7, Article I of the Ohio Constitution,providing that all men have a natural and indefeasible right to worshipAlmighty God according to the dictates of their own conscience. Plaintiffsposition that the free choice of religious practice cannot be circumscribed orcontrolled by contract is substantiated by Hackett v. Hackett (C.A. Lucas1958), 78 Ohio Law Abs. 485, 150 N.E. 431. This case held that a covenantin a separation agreement, incorporated in a divorce decree, that themother would rear a daughter in the Roman Catholic faith was unenforcea-ble. However, the controversial condition in the case at bar is a partialrestraint upon marriage and not a covenant to restrain the freedom ofreligious practice; and, of course, this court is not being asked to hold theplaintiff in contempt for failing to marry a Jewish girl of Jewish parentage.

Counsel contends that if Dr. David Shapira, during his life, had triedto impose upon his son those restrictions set out in his Will he would haveviolated the public policy of Ohio as shown in Hackett v. Hackett. Thepublic policy is equally violated by the restrictions Dr. Shapira has placedon his son by his Will. This would be true, by analogy, if Dr. Shapira, inhis lifetime, had tried to force his son to marry a Jewish girl as thecondition of a completed gift. But it is not true that if Dr. Shapira hadagreed to make his son an inter-vivos gift if he married a Jewish girl within

seven years, that his son could have forced him to make the gift free of thecondition.

TTT In England the courts have held that partial restrictions uponmarriage to persons not of the Jewish faith, or of Jewish parentage, werenot contrary to public policy or invalidTTTT

The American case cited by plaintiff is that of Maddox v. Maddox(1854), 52 Va. (11 Grattans) 804. The testator in this case willed aremainder to his niece if she remain a member of the Society of Friends.When the niece arrived at a marriageable age there were but five or sixunmarried men of the society in the neighborhood in which she lived. Shemarried a non-member and thus lost her own membership. The court heldthe condition to be an unreasonable restraint upon marriage and void, and

that there being no gift over upon breach of the condition, the conditionwas in terrorem, and did not avoid the bequest. It can be seen that whilethe court considered the testamentary condition to be a restraint uponmarriage, it was primarily one in restraint of religious faith. The court saidthat with the small number of eligible bachelors in the area the conditionwould have operated as a virtual prohibition of the nieces marrying, andthat she could not be expected to go abroad in search of a helpmate or tobe subjected to the chance of being sought after by a stranger. The court


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distinguished the facts of its case from those in England upholding condi-tions upon marriage by observing that England was already overstocked

with inhabitants while this country had an unbounded extent of territo-ry, a large portion of which is yet unsettled, and in which increase ofpopulation is one of the main elements of national prosperity. TTT

In arguing for the applicability of the Maddox v. Maddox test ofreasonableness to the case at bar, counsel for the plaintiff asserts that thenumber of eligible Jewish females in this county would be an extremelysmall minority of the total population especially as compared with thecomparatively much greater number in New York, whence have come manyof the cases comprising the weight of authority upholding the validity ofsuch clauses. There are no census figures in evidence. While this courtcould probably take judicial notice of the fact that the Jewish community isa minor, though important segment of our total local population, neverthe-

less the court is by no means justified in judicial knowledge that there is aninsufficient number of eligible young ladies of Jewish parentage in this areafrom which Daniel would have a reasonable latitude of choice. And ofcourse, Daniel is not at all confined in his choice to residents of this county,which is a very different circumstance in this day of travel by plane andfreeway and communication by telephone, from the horse and buggy daysof the 1854 Maddox v. Maddox decision. Consequently, the decision doesnot appear to be an appropriate yardstick of reasonableness under modernliving conditions.

Plaintiffs counsel contends that the Shapira will falls within theprinciple of Fineman v. Central National Bank (1961), 87 Ohio Law Abs.236, 175 N.E. 2d 837, 18 O. O. 2d 33, holding that the public policy of Ohiodoes not countenance a bequest or devise conditioned on the beneficiarys

obtaining a separation or divorce from his wife. Counsel argues that theShapira condition would encourage the beneficiary to marry a qualified girljust to receive the bequest, and then to divorce her afterward. Thispossibility seems too remote to be a pertinent application of the policyagainst bequests conditioned upon divorce. Most other authorities agreewith Fineman v. Bank that as a general proposition, a testamentary gifteffective only on condition that the recipient divorce or separate from his orher spouse is against public policy and invalid. 14 A.L.R. 3d 1222. But noauthorities have been found extending the principle to support plaintiffsposition. Indeed, in measuring the reasonableness of the condition inquestion, both the father and the court should be able to assume that thesons motive would be proper. And surely the son should not gain theadvantage of the avoidance of the condition by the possibility of his ownimpropriety.

Finally, counsel urges that the Shapira condition tends to pressureDaniel, by the reward of money, to marry within seven years withoutopportunity for mature reflection, and jeopardizes his college education. Itseems to the court, on the contrary, that the seven year time limit would bea most reasonable grace period, and one which would give the son ampleopportunity for exhaustive reflection and fulfillment of the condition with-


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out constraint or oppression. Daniel is no more being blackmailed into a

marriage by immediate financial gain, as suggested by counsel, than

would be the beneficiary of a living gift or conveyance upon considerationof a future marriagean arrangement which has long been sanctioned by

the courts of this state. Thompson v. Thompson (1868), 17 Ohio St. 649.

In the opinion of this court, the provision made by the testator for the

benefit of the State of Israel upon breach or failure of the condition is most

significant for two reasons. First, it distinguishes this case from the bare

forfeitures in TTT Maddox v. MaddoxTTTT Second, and of greater impor-

tance, it demonstrates the depth of the testators conviction. His purpose

was not merely a negative one designed to punish his son for not carrying

out his wishes. His unmistakable testamentary plan was that his posses-

sions be used to encourage the preservation of the Jewish faith and blood,

hopefully through his sons, but, if not, then through the State of Israel.

Whether this judgment was wise is not for this court to determine. But it isthe duty of this court to honor the testators intention within the limita-

tions of law and of public policy. The prerogative granted to a testator by

the laws of this state to dispose of his estate according to his conscience is

entitled to as much judicial protection and enforcement as the prerogative

of a beneficiary to receive an inheritance.

It is the conclusion of this court that public policy should not, and does

not preclude the fulfillment of Dr. Shapiras purpose, and that in accor-

dance with the weight of authority in this country, the conditions contained

in his will are reasonable restrictions upon marriage, and valid.

NOTE ON TERMINOLOGY

In the Shapira case, the court sometimes refers to David Shapira as the

testator. A testator is a person who has written a will. A person who dies

with a duly executed will dies testate. A person who dies without a will dies

intestate. An intestate decedents property passes to that persons heirs,

who are designated by the jurisdictions statute on intestate succession.

By contrast, when testators will disposes of property, the persons

designated to take that property are not called heirs, but devisees (or

sometimes legatees). A clause directing disposition of property is called a

devise, a legacy, or a bequest. Historically, the word devise was used to

describe a disposition of real property, legacy was used to describe a

disposition of money, and bequest was used to describe a disposition of

personal property other than money. Today, the terms are often used

interchangeably.

QUESTIONS

1. Consider two accounts of David Shapiras motives when he included

the disputed provision in his will:


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(a) David was trying to control the significant life decisions ofhis son Daniel (and his son Mark) by inducing his son to marry a

Jewish woman.

(b) David was simply expressing his preferences: if Danielwere to commit himself to a Jewish family, David would preferthat Daniel share in Davids estate; if, on the other hand, Danieldid not commit himself to a Jewish family, David would prefer thatthe State of Israel should share in Davids estate.

Do we know which account of Davids motives is the more accurate one?Would the court careand should the court carewhat motivated Davidwhen he wrote his will? See Jeffrey G. Sherman, Posthumous Meddling: AnInstrumentalist Theory of Testamentary Restraints on Conjugal and Reli-gious Choices, 1999 U. Ill. L. Rev. 1273, 1309:

[S]ubjective motive is difficult to divine and easy to manufacturethrough fanciful posthumous imputation. It is difficult enough toinfer what a testator intended to do with her property; to inferwhy she wanted to do it requires the court to engage in potentiallylimitless speculation.

2. Why should Daniel Shapira have any standing to complain? Couldnthis father have cut him out of the will altogether, leaving his entire estateto the State of Israel? If so, why should Daniel be in a position to complainabout his fathers willwhich at least held out the possibility of inheri-tance in certain circumstances?

3. What limits, if any, would a court place on enforcement of DavidShapiras stated intentions? Consider the following will provisions:

(a) To my son Daniel, so long as he does not convert toanother faith within ten (10) years of my death.

(b) To my son Daniel, so long as he divorces his Catholicwife, Mary, within ten (10) years of my death.

Would the court have enforced either of those provisions? If not, why not?Suppose David, while alive, had promised Daniel a substantial sum ofmoney if Daniel divorced his wife. Would any public policy have prevent-ed David from keeping his promise? Why shouldnt David be entitled to usein his will the same carrots and sticks as he might have used while he wasalive?

Inheritance Rights More Generally

The court in Shapira emphasized that the right to receive property bywill is a creature of the law, and is not a natural right or one guaranteed orprotected by either the Ohio or the United States constitution. Indeed, inEngland, owners of landthen the principal form of propertyhad noright to dispose of that property by will until 1540, when Parliamentenacted the Statute of Wills, 32 Hen. VIII, c. 1(1540). Instead, real propertypassed by descent to the deceased property owners heirgenerallythe decedents oldest son, if decedent had one. If decedent had no sons, his


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property would pass to his daughters. Decedent had no choice in the matter

(unless he made complex arrangements to avoid the rules of descent). With

the enactment of the Statute of Wills, decedent for the first time had directtestamentary control over the disposition of real property.

Thus, for AngloAmerican courts and legislatures, both the right to

receive property (discussed in Shapira), and the right to dispose of proper-

ty, are rooted in positive law, subject to legislative adjustment. And, as we

shall see, many states have restricted the right of a decedent to disinherit

at least one class of family memberdecedents surviving spouse.

Suppose, however, a state tried to abolish inheritance altogetherto

require that all property passes to the state (or, to use the appropriate

terminology, to require that all property escheats to the state). Would

such a statute be constitutional? Although no state has seen fit to abolish

inheritance, the United States Supreme Court weighed in on the issue in

Hodel v. Irving, 481 U.S. 704 (1987).

Congress had enacted the Indian Land Consolidation Act, which

provided that undivided fractional interests in tracts of land within a

reservation would escheat if the interest represented two percent or less ofthe total acreage in the tract and if the interest earned its owner less than

$100 in the year before it was due too escheat. Heirs who, but for the

statute, would have succeeded to interests in reservation lands, challenged

the statute as an unconstitutional taking. The Supreme Court, in an

opinion by Justice OConnor, agreed, writing:

TTT [T]he regulation here amounts to virtually the abrogation of the

right to pass on a certain type or propertythe small undivided

interestto ones heirs. In one form or another, the right to pass onpropertyto ones family in particularhas been part of the Anglo

American legal system since feudal timesTTTT Even the United States

concedes that total abrogation of the right to pass property is unprece-

dented and likely unconstitutionalTTTT Since the escheatable interests

are not, as the United States argues, necessarily de minimisTTTT a

total abrogation of these rights cannot be upheldTTTT

In holding that complete abolition of both the descent and devise

of a particular class of property may be a taking, we reaffirm the

continuing vitality of the long line of cases recognizing the States, and

where appropriate, the United States broad authority to adjust the

rules governing the descent and devise of property without implicating

the guarantees of the Just Compensation ClauseTTTT The difference in

this case is the fact that both descent and devise are completelyabolishedTTTT

481 U.S. at 716.

But why should we be so committed to inheritance rights? In a countrythat embraces equality of opportunity as a goal, inheritance gives a headstart to the children of the wealthy and the powerful. Consider thefollowing:


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Mark L. Ascher, Curtailing Inherited Wealth, 89 Mich. L. Rev. 69,

6976 (1990).

One of the most dominant themes in American ideology is equality of

opportunity. In our society, ability and willingness to work hard aresupposed to make all things possible. But we know there are flaws in ourideology. Differences in native ability unquestionably exist. Similarly, somepeople seem to have distinctly more than their fair share of good luck. Bothtypes of differences are, however, beyond our control. So we try to convinceourselves that education evens out most differences. Still, we know thereare immense differences in the values various parents imbue in theirchildren. And we also know there are vast differences in the educationsparents can afford for their children. Here too, however, we feel there islittle to be doneTTTT

When forced to acknowledge these differences in ability, luck, and

educational opportunity, we admit that we do not play on a completely levelfield. But because each of these differences seems beyond our control, wetend to believe the field is as level as we can make it. It is not. For noparticularly good reason, we allow some players, typically those mostculturally and educationally advantaged, to inherit huge amounts ofwealth, unearned in any sense at all. So long as we continue to tolerateinheritance by healthy, adult children, what we as a nation actuallyproclaim is, All men are created equal, except the children of thewealthy.

* * *

About $150 billion pass at death each year. Yet in 1988 the federalwealth transfer taxes raised less than $8 billion [in 2001, the figure is about

$29 billioneds.] Obviously, these taxes could raise much more. If, to takethe extreme example, we allowed the government to confiscate all propertyat death, we could almost eliminate the deficit with one stroke of aPresidential pen. This nation, however, rarely has used taxes on thetransfer of wealth to raise significant revenue. Our historical hesitancy inthis regard strongly suggests that we as a nation are unwilling to abolishinheritance in order to raise revenue. Nonetheless, thinking about usingthe federal wealth transfer taxes to abolish inheritance may not be entirelyfutileTTTT

My proposal views inheritance as something we should tolerate onlywhen necessarynot something we should always protect. My major prem-ise is that all property owned at death, after payment of debts andadministration expenses, should be sold and the proceeds paid to theUnited States government. [Professor Ascher then outlines exceptions tohis general rulegenerally for protection of spouses, minor children, anddisabled descendants.]

My proposal strikes directly at inheritance by healthy, adult children.And for good reason. We cannot control differences in native ability. Evenworse, so long as we believe in the family, we can achieve only the mostrudimentary successes in evening out many types of opportunities. And we


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certainly cannot control many types of luck. But we canand ought tocurb one form of luck. Children lucky enough to have been raised, accultu-

rated, and educated by wealthy parents need not be allowed the additionalgood fortune of inheriting their parents property. In this respect, we cando much better than we ever have before at equalizing opportunityTTTT

This proposal sounds radical, perhaps even communistic. Inheritancedoes seem to occupy a special place in the hearts of many Americans, eventhose who cannot realistically expect to inherit anything of significance.For example, in 1982, sixty-four percent of the voters in a Californiainitiative voted to repeal that states inheritance tax. Michael Graetz, who,like me, finds this element of the American psyche puzzling, explains it as aproduct of the optimism of the American people. In California, at least,sixty-four percent of the people must believe that they will be in thewealthiest five to ten percent when they die. This fascination withinheritance perhaps explains the minimal public debate about using thefederal transfer taxes to raise substantial amounts of revenue. But curtail-ing inheritance is hardly radical. For years Americans have written serious-ly and thoughtfully on the subject. My proposal builds on that tradition andreaches the conclusion that substantial limitations on inheritance wouldcontribute meaningfully to the equality of opportunity we offer our chil-dren. It also concludes that such limitations are fully consistent with ournotions of private property. Neither conclusion is new. What is new is a$200 billion deficit. Now, as at few other times in this nations history, ourgovernment needs new sources of revenue. Accordingly, I suggest changesin the federal wealth transfer taxes that would curtail inheritance and raiserevenue. If we cannot, or will not, control the deficit, this generationsprimary bequest to its children will be the obligation to pay their parentsdebts.

Professor Aschers article focuses on the inequality generated by inher-itance. He notes, and others have emphasized, that the people most likelyto inherit significant wealth are also the people whose parents have giventhemthrough education and transmission of cultural valuesthe mostsignificant head start during their lifetimes. Professor John Langbein haswritten:

[I]n striking contrast to the patterns of last century and before, inmodern times the business of educating children has become the mainoccasion for intergenerational wealth transfer. Of old, parents were

mainly concerned to transmit the patrimonyprototypically the farmor the firm, but more generally, that provision in life that rescuedchildren from the harsh fate of being a mere laborer. In todayseconomic order, it is education more than property, the new humancapital rather than the old physical capital, that similarly advantages achildTTTT

John Langbein, The TwentiethCentury Revolution in Family WealthTransmission, 86 Mich. L. Rev. 722, 732 (1988).


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Inequality, however, may not be the only social harm generated byinheritance. Manyincluding some people of great wealthhave expressed

the fear that excessive inheritance breeds sloth in the children of thewealthy. See Andrew Carnegie, The Gospel of Wealth, 50 (1933). One canalways find anecdotal evidence to support the hypothesis. For a number ofexamples, all drawn from the heirs to the Johnson & Johnson fortune, seeDavid Margolick, Undue Influence: The Epic Battle for the Johnson &Johnson Fortune (1993), an entertaining account of the challenge toSeward Johnsons will. Wealth gives its bearer the freedom to be cush-ioned from market forces. Deborah C. Malamud, ClassBased AffirmativeAction: Lessons and Caveats, 74 Tex. L. Rev. 1847, 1872 (1996). Thatfreedom may lead some to take risks that generate great social benefit; itmay lead others to a dissolute life.

Why tolerate a social institution that generates both inequality and

sloth? One answer is that accumulation of wealth is often a joint effort;members of a wealthy decedents familyparticularly decedents spousemay have contributed substantially to decedents ability to accumulatewealth. Note that even Professor Ascher would permit unlimited inheri-tance by a surviving spouse. And dependent children may have a right tosupport during their minoritya right not to be disadvantaged by theirparents premature death.

The more general answer, however, focuses not on the recipients ofinheritance, but on the decedentthe person who earned the money inthe first place. Professors Hirsch and Wang catalogue some of the justifica-tions for inheritance:

Adam J. Hirsch & William K.S. WangA Qualitative Theory of the

Dead Hand, 68 Ind. L. J. 1, 614 (1992).The traditional rationales for testamentary freedom are as varied as

they are controversial. Perhaps oldest is the notion that testators have anatural right to bequeath. Having created wealth by the sweat of her brow,the testator is naturally free to do with it as she pleasesincluding passingit along to others. Locke and Grotius, among other philosophers, took thisview, which after centuries in eclipse has lately drawn flickers of judicialsupportTTTT

Seemingly as old as the natural rights rationale for freedom of testa-tion are other rationales premised on the sort of utilitarian calculus thatBentham and his disciples methodized. One argument, tracing back to thethirteenth century jurist Henry de Bracton, if not earlier, holds that

freedom of testation creates an incentive to industry and saving. Bractonsassumptionshared by modern social scientistswas that persons derivesatisfaction out of bequeathing property to others. To the extent thatlawmakers deny persons the opportunity to bequeath freely, the subjectivevalue of property will drop, for one of its potential uses will have disap-peared. As a result, thwarted testators will choose to accumulate lessproperty, and the total stock of wealth existing at any given time willshrink. Testamentary freedom accordingly fulfills the normative goal of


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wealth maximization, which is advanced by its proponents as the bestavailable barometer of utility maximization.

* * *

Another argument for freedom of testation, also premised upon thegoal of wealth enhancement, is that such freedom supports, as it were, amarket for the provision of social services. Social life, like commercial life,is not a one-way street. Though classified by the law as gratuitoustransfers, bequests within the family may in fact repay the beneficiary forvalue received (though of a sort not recognized as consideration underthe common law)TTTT Cast into the icy language of economics, testamenta-ry freedom serves the public interest by promoting the creation of greaterstocks ofnoncommodity wealth. The testators power to bequeath encour-ages her beneficiaries to provide her with care and comfortservices thatadd to the total economic pie.

* * *

A secondary justification for the right of testation is that it would inpractice be difficult to curtail. Were lawmakers to rescind the power of thewill, testators would find other, less efficient ways to direct the distributionof their wealth. To attempt therefore to take the disposal out of theirhands, at the period of their decease, would be an abortive and perniciousproject, William Godwin opined two centuries ago. If we prevented themfrom bestowing it in the open and explicit mode of bequest, we could notprevent them from transferring it before the close of their lives, and weshould open a door to vexatious and perpetual litigation. TTT

* * *

A final justification for freedom of testation, formulated with disarm-ing unaffectedness by Professor Simes, is simply that the power to be-queath comports with political preferences: the desire to dispose of proper-ty by will is very general, and very strong. A compelling argument in favorof it is that it accords with human wishes.

NOTES AND QUESTIONS

1. Blackstone, among others, disputed the Lockean notion that the rightto dispose of ones estate emanates from natural law:

The right of inheritance, or descent to the children and relations of the

deceased, seems to have been allowed much earlier than the right ofdevising by testament. We are apt to conceive at first view that it has

nature on its side; yet we often mistake for nature what we findestablished by long and inveterate customTTTT

Wills, therefore, and testaments, rights of inheritance and succes-

sion, are all of them creatures of the civil or municipal laws, and

accordingly are in all respects regulated by themTTTT

2 William Blackstone, Commentaries 1112 (21st ed. 1844). For a moreextensive survey of the attitudes of worldly philosophers toward inheri-


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tance, see James R. Repetti, Democracy, Taxes and Wealth, 76 N.Y.U. L.Rev. 825, 82831 (2001).

2. Professors Hirsch and Wang discuss the argument that allowing peopleto dispose of their property after death encourages industry; that in theabsence of inheritance, people will work less, because there will be lessreason for them to accumulate property.

Suppose the federal government imposed a 100% estate tax next week(perhaps with a modest exemption). How many people do you believe wouldbecome less productive as a result? Do people accumulate money to assurean inheritance for their children, or to assure that they will have resourcesto pay for their own care in old agecare that has become increasinglyexpensive in recent decades?

Professor Jeffrey Sherman has written:

It is said that if inheritance and testation were abolished, every-one would plan to be dead broke on the day of [his] death. Undoubt-edly that would be true of some people, but how would they contrive to

die broke? A retired individual who, on the basis of what proved to bean underestimate of her remaining life expectancy, decided how muchof her wealth to expend each year would find her wealth running outbefore she didTTTT

In other words, property owners, however benevolently disposedthey may be toward their progeny, have grave concerns about theirown continued comfort and independence and about the maintenance


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of their socio-economic stations. The absence of testation rights might

affect investment choices but would not be the determining factor.

Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of

Testamentary Restraints on Conjugal and Religious Choices, 1999 U. Ill. L.

Rev. 1273, 129597. See also Karen C. Burke and Grayson M. P. McCouch,

A Consumption Tax on Gifts and Bequests, 17 Va. Tax Rev. 657, 68990

(1998) [noting that behavioral foundations of personal consumption, sav-

ings, and gratuitous transfers remain largely unexplored].

Professor Shermans analysis finds support in the work of economists

who developed the Life Cycle Hypothesis, which theorizes that devises

are accidentalthe result of risk aversity in the face of uncertainty about

ones own future needs and date of death. See, e.g., Franco Modigliani, The

Role of Intergenerational Transfers and Life Cycle Saving in the Accumula-

tion of Wealth, 2 J. Econ. Persp. 15 (1988). In recent years, some econo-mists and lawyers have questioned the Life Cycle Hypothesis. See Laurence

J. Kotlikoff, Intergenerational Transfers and Savings, 2 J. Econ. Persp. 41

(1988); Edward J. McCaffery, The Uneasy Case for Wealth Transfer Taxa-

tion, 104 Yale L.J. 283 (1994).

If the Life Cycle Hypothesis is correct, is there any economic justifica-

tion for inheritance? Who would spend money more wiselythe govern-

ment or children of rich people? Would a prohibition on inheritance cause

people to engage in conspicuous consumption before their deaths?

3. Professor Edward J. McCaffery, skeptical of the Life Cycle Hypothesis,

fears that the wealthy might engage in increased consumption if inheri-

tance rights were curtailed. He suggests that increased consumption by the

wealthy might be a greater threat to ideals of equality than increasedaccumulation. Discussing Ross Perots incentives if faced with inheritance

laws that provided for complete confiscation at death, McCaffery notes:

[A] complete confiscation, however, would surely impact incentives at

the donor level. Mr. Perot would now be comparing $3 billion spent on

himself with nothing given to his heirs; in this situation, he might

decide to run an even more expensive campaign for President.

Edward J. McCaffery, The Uneasy Case for Wealth Transfer Taxation, 104

Yale L.J. 283, 321 (1994). (Under the current estate tax regime, for every

dollar Perot spent on his campaign, he had to deprive his heirs or will

beneficiaries of about 50 cents.)

Professor Joel Dobris has also questioned the wisdom of the estate tax,except as a symbol of the egalitarian nature of our society. Joel C. Dobris,

Federal Transfer Taxes: The Possibility of Repeal and the Post Repeal

World, 48 Cleve St. L. Rev. 709, 711 (2000).

4. The Politics of Inheritance. As the excerpt from Professors Hirsch

and Wang indicates, inheritance rights are politically popular. Would you

expect those rights to be more or less popular with Congressmen and state


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legislators than with the public at large? Compared with John Q. Public, is

the average Congressman more or less likely to have a personal stake in

maintaining the right to inherit?

In every state, the Statute of Wills permits a decedent to write a will

disposing of his property at death. As we have noted, we typically call a

decedent who writes a will atestator. The Shapira case indicates that courts

typically give effect to testators stated preferences, even when those

preferences might be offensive to others. But are there circumstances in

which courts will not give effect to testators intentions, as stated in the

will? If so, what reasons justify ignoring decedents stated preferences?

Consider the famous case of Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188(1889). Francis Palmer wrote a will giving legacies to his two daughters,

and the remainder of his estate to his grandson, Elmer E. Palmer. Sixteen-

year-old Elmer learned of the will provisions, and poisoned his grandfather,

causing his death. Elmer, noting that the will was made in due form and

had been admitted to probate, sought to take under the terms of his

grandfathers will. His aunts resisted.

The Court of Appeals held that, in spite of statutory provisions

directing that property should be distributed in accordance with the provi-

sions of duly executed wills, Elmer was not entitled to inherit:

The purpose of those statutes was to enable testators to dispose of

their estates to the objects of their bounty at death, and to carry intoeffect their final wishes legally expressed; and in considering and

giving effect to them this purpose must be kept in view. It was the

intention of the law-makers that the donees in a will should have the

property given to them. But it never could have been their intention

that a donee who murdered the testator to make the will operative

should have any benefit under it.

115 N.Y. at 509, 22 N.E. at 189. The court went on to articulate a more

general principle:

No one shall be permitted to profit by his own fraud, or to take

advantage of his own wrong, or to found any claim upon his own

iniquity, or to acquire property by his own crime.

Id. at 511, 22 N.E. at 189.

What principle underlies the common law rule articulated in Riggs v.

Palmer? Is it that inheritance laws should punish murderers? Or that

inheritance laws should serve to deter future murders? Or that a will which

leaves property to testators killer is unlikely to reflect testators wishes at

the moment of death?


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Consider the following case:

Ford v. FordCourt of Appeals of Maryland, 1986.307 Md. 105, 512 A.2d 389.

t ORTH,J.

I

Pearl Rose Ford murdered her mother, Muriel L. Holland, by stabbingher some 40 times. She wrapped the body in plastic garbage bags anddeposited it in the backyard of her home. She now seeks to obtain theproperty left her under her mothers will. George Benjamin Ford, Jr., herson, asserts that Pearl forfeited her entitlement to the property by thematricide and claims the property as the alternative beneficiary named in

the will. The Orphans Court for Anne Arundel County, in which the willwas admitted to probate, ruled that George be declared the heir of theestate. The Circuit Court for Anne Arundel County, on appeal by Pearl toit, decided that Pearl was entitled to the property. We ordered that a writof certiorari be issued to the Court of Special Appeals, to which Georgeappealed, before decision by that court.

II

The Maryland Legislature has not enacted a slayers statute estab-lishing what principles govern when a person kills another and would betangibly enriched by the death. This Court, however, has addressed thematter in three of its decisions: Price v. Hitaffer, 164 Md. 505, 165 A. 470(1933); Chase v. Jenifer, 219 Md. 564, 150 A.2d 251 (1959); and Schifanelli

v. Wallace, 271 Md. 177, 315 A.2d 513 (1974). Through these cases theCourt has created in the common law of this State, the equivalent of aslayers statute, which we shall refer to herein as the slayers rule.

Price concerned an appeal from an Orphans Court order passed in theadministration of the estate of an intestate. The order excluded fromparticipation in the distribution of the estate the heirs or personal repre-sentatives of the husband of the deceased, who, it was admitted and proved,shot and killed his wife and almost immediately thereafter committedsuicide. The question before this Court was:

Can a murderer, or his heirs and representatives through him, beenriched by taking any portion of the estate of the one murdered?

164 Md. at 506, 165 A. 470. The Court dealt with the question as one offirst impression in Maryland and noted the conflicting decisions of other

courts of last resort in this country. The decisions at that time representedtwo views.

One line of decisions apply the common-law principle of equity that noone shall be permitted to profit by his own fraud, to take advantage ofhis own wrong, to found any claim upon his own iniquity, or to acquireproperty by his own crime, and hold that provisions of a will and thestatutes of descent and distribution should be interpreted in the lightof those universally recognized principles of justice and morality; that


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such interpretation is justified and compelled by the public policyembraced in those principles or maxims, which must control the

interpretation of law, statutes, and contracts. The other and oppositeview, as expressed in those decisions which reach a different conclu-

sion, is that, while they recognize the public policy of the common lawas declared in the principles and equitable maxims above set forth,

such public policy founded upon the common law has been abrogated

and denied, and a new and different public policy declared by the

Legislature in the enactment of statutes to direct descents and distri-bution, or governing the execution and effect of testamentary disposi-

tion. Some of the courts in the last mentioned group also rely upon

constitutional or statutory declarations to the effect that conviction of

crime shall not work a corruption of blood or forfeiture of estate.

Id. at 506507, 165 A. 470. The Court fully discussed the two views andforcefully rejected any view which would result in sanctioning the enrich-

ment of the perpetrator of the most heinous murder from the estate of hisvictim. Id. at 516517, 165 A. 470.

Suffice it to say that we decline to follow the reasoning supporting any

interpretation fraught with consequences so pernicious and so abhor-

rent to the sense of justice, equity, and morality entertained by whatwe are pleased to believe is the overwhelming majority of thoughtful

and moral people, but prefer to give expression and adherence to the

principles and reasoning so forcibly presented by those courts who

have in the past adopted the views TTT expressed [in the common law].

Id. at 517, 165 A. 470. We observed in Chase v. Jenifer, 219 Md. at 567, 150A.2d 251, that the decision in Price, which was rested upon the maximthat one cannot profit by his own wrong, and on a broad ground of public

policy of the common law, was perhaps not then supported by a majorityof the courts dealing with the question. Nevertheless, we declared, weregard the decision of the Maryland Court [in Price] as settled law. Chase,219 Md. at 567, 150 A.2d 251. Thus, it is the basic rule of this State that amurderer, or his heirs or representatives through him, ordinarily may notprofit by taking any portion of the estate of the one murdered.

The Court in Price indicated that the equitable maxims of thecommon law which it followed in answering the question before it, wouldapply not only in the case of intestacy but equally to benefits by way ofwills and life insurance policies. 164 Md. at 516, 165 A. 470TTTT

* * *

As established by Price, Chase and Schifanelli, the present status of

the law of Maryland is:

1) A person who kills another

a) may not share in the distribution of the decedents estate as an heirby way of statutes of descent and distribution, or as a devisee or legateeunder the decedents will, nor may he collect the proceeds as a beneficiaryunder a policy of insurance on the decedents life when the homicide isfelonious and intentional;


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b) may share in the distribution of the decedents estate as an heir byway of statutes of descent and distribution, or as a devisee or legatee under

the decedents will and may collect the proceeds as a beneficiary under apolicy of insurance on the decedents life when the homicide is unintention-al even though it is the result of such gross negligence as would render thekiller criminally guilty of involuntary manslaughter.

2) These principles apply not only to the killer but to those claimingthrough or under him.

3) The disposition of a criminal cause is not conclusive of the character ofthe homicide or of the criminal agency of the putative killer in a civilproceeding concerning entitlement to assets of the decedent.

a) It is not dispositive that no criminal prosecution was broughtagainst the alleged killer, or that charges against him were dismissed onconstitutional, statutory or procedural grounds or otherwise, or that, upona criminal trial he was found not guilty for whatever reason, or wasconvicted of murder in the first or second degree or of manslaughter.

b) In the determination of who is entitled to the assets of the decedent,whether the alleged killer was the criminal agent and whether the homicidewas intentional and felonious or unintentional is a function within theambit of the civil proceeding. In short, the lack of or result of a criminalproceeding is not res judicata in a subsequent civil action.

III

It is not disputed that Pearl killed her mother and that under thecriminal law she was guilty of first degree murder in that the homicide waswilful, deliberate and premeditated. Md.Code (1957, 1982 Repl.Vol.) Art.

27, 407. Were this the posture of the case, it is clear that under theslayers rule adopted by the PriceChaseSchifanelli trilogy, Pearl wouldbe precluded from sharing in the estate of her victim; her conduct would beboth felonious and intentional. But in addition to the fact that Pearl wasthe criminal agent of a first degree murder, it is also undisputed that at thetime the crime was committed, she was not criminally responsible byreason of insanity. In short, she stands as guilty of murder in the firstdegree but insane. See generally Pouncey v. State, 297 Md. 264, 465 A.2d475 (1983) (Criminal defendant can be found both guilty of the crime andinsane at the time of its commission). The question is, therefore, whatimpact does the fact that Pearl was insane at the time she committed thecrime have on the slayers rule established by PriceChaseSchifanelli?

* * *

IV

Pearl Rose Ford went to trial before a jury in the Circuit Court forAnne Arundel County on pleas of not guilty and not guilty by reason ofinsanity. While the jury was deliberating its verdicts (four days wereconsumed before the case went to the jury) she moved to enter a plea ofnot guilty by reason of insanity. The court accepted the plea and took the


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case from the jury. A docket entry reads that Pearl waived right to jury inopen Court and reflects the verdicts rendered by the judge in these words:

Finding: That there was sufficient evidence to establish the defen-dants guilt if sane. That the defendant is not guilty by reason ofinsanity.

The court committed her to the Department of Health and Mental Hygienefor examination and evaluation and subsequently ordered that she betreated on an in-patient basis at Crownsville Hospital Center until furtherorder. Although the verdicts as rendered could have been better expressedin light of the existing law, we are satisfied that to all intent and purpose,they were in accord with the required procedure as the equivalent ofGuilty of murder in the first degree and Not criminally responsible byreason of insanity under the test for criminal responsibility. In otherwords, the verdicts were, in effect, albeit not literally, guilty and in-

sane.* * *

VI

As we have seen, for the slayers rule to be invoked the killing musthave been both felonious and intentional. We have found that it is afunction of the trier of fact in a civil proceeding regarding the entitlementof the assets of a decedent alleged to have been killed by a claimant tomake an independent determination of the corpus delicti of the crime. Thetrier of fact must decide on a preponderance of the evidence whether themanner of the decedents death was homicide, whether the homicide wasmurder or manslaughter and whether the claimant was the criminal agent.Unlike a criminal prosecution, the civil proceeding does not call for adetermination of the degree of murder. Both first and second degreemurder are per se felonious and intentional. The civil inquiry, however,must go a step further than is necessary in a criminal prosecution if thefinding is that the homicide is manslaughter. See Connor v. State, 225 Md.543, 558559, 171 A.2d 699, cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7L.Ed.2d 100 (1961). Then the trier of fact in the civil proceeding mustascertain whether the manslaughter was voluntary or involuntary. Man-slaughter generally, be it voluntary or involuntary, is a felony. Code, Art.27, 387. But see Code, Art. 27, 388. Voluntary manslaughter is inten-tional; involuntary manslaughter is, by definition, unintentional. Rolfes v.State, 10 Md.App. 204, 207, 268 A.2d 795 (1970). Schifanelli, 271 Md. 177,315 A.2d 513, teaches that if the killing is unintentional it is without the

ambit of the slayers rule even though it is felonious. If the civil inquirywere to stop here, a determination that the killing was homicide, that thehomicide was murder or voluntary manslaughter and that the claimant wasthe criminal agent would raise the bar of the slayers rule.

All the above determinations are to be made on the assumption thatthe claimant was responsible for his criminal conduct, that he was saneat the time of the commission of the killing. The inquiry continues,however, upon the suggestion that the killer was insane within the


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meaning of our criminal responsibility law at the time he committed the

offense. The trier of fact must determine whether, at the time the claimant

killed the decedent, he lacked substantial capacity to appreciate the crimi-nality of that conduct, or to conform that conduct to the requirements of

law, because of a mental disorder or mental retardation. If the claimant

were in that category, he would not be criminally responsible for the

killing. It is at this point, upon a finding that the claimant was not

criminally responsible for his criminal conduct, that the question we noted

supra, arises, namely what impact does the fact that the claimant was

insane at the time of the commission of the crime have on the slayers

rule. The answer is that the slayers rule is simply not applicable when the

killer was not criminally responsible at the time he committed the homi-cide.

* * *

Our view is not in conflict with the maxims which support the slayers

rule which we have judicially adopted. The rule is based upon principles of

equity, justice and morality and on a broad ground of the public policy of

the common law. Chase v. Jenifer, 219 Md. at 567, 150 A.2d 251; Price v.

Hitaffer, 164 Md. at 511, 516518, 165 A. 470. Equally a matter of equity,justice and morality and a reflection of public policy is the present enlight-

ened definition of criminal insanity under which punishment for the

commission of a crime is prohibited. The terms of that definition simply

make the maxims prompting the ruleno one shall be permitted to profit

by his own fraud, to take advantage of his own iniquity, or to acquire

property by his own crimeinappropriate when a person is criminally

insane. A person who suffers a mental disorder or is mentally retarded and

falls under the cognitive and volitive components of the criminal responsi-bility statute does not, by the very terms of those components, act with anunfettered will. His conduct is controlled and his will is dominated by his

mental impairment. Fundamentally, a killing is felonious when thehomicide is a felony. In the frame of reference of the slayers rule, however,the legislative policy regarding criminal responsibility leads to a qualifica-tion of this meaning. We believe that for a homicide to be felonious inthe context of the slayers rule, it must be a felony for which the killer iscriminally responsible under Marylands criminal insanity test. Therefore,

if a killer is insane at the time he killed, the killing is not felonious in thecontemplation of the slayers rule. If the killing is not felonious, eventhough it may be intentional, the rule does not apply. Our view does not doviolence to the broad public policies inherent in both the rule and the

criminal insanity statutes. On the contrary, it furthers the principles ofequity, justice and morality recognized by both the rule and the statutes.

The result that we reach is in complete accord with the decisions of our

sister states which have addressed the problem. Forty-three other stateshave adopted by legislative enactment a slayers rule comparable in effectto our rule, and several have embraced such a rule through its case lawTTTTWe find that the courts in only 16 of those states, however, have construed

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