Earl, J.
On the 13th day of August 1880, Francis B. Palmer made his last will and testament, in which- he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant, Elmer E. Palmer, subject to the support of Susan Palmer, his mother, with a gift over to the two daughters, subject to the support of Mrs. Palmer, in case Elmer should survive him and die tinder age, unmarried and without any issue. The testator at. the date of his will owned a farm and considerable personal property. lie was a widower, and thereafter, in March 1882, he was married to Mrs. Bresee, with whom before his marriage he entered into an ante-nuptial contract in which it was agreed that, in lieu of dower and all other claims upon his estate in case she survived him, she should have her support upon his farm during her life, and such support was expressly charged upon the farm. At the date of the will, and, subsequently, to the death of the testator, Elmer lived with him as a member of his family, and at his death was sixteen years old. He knew of the provisions made in his favor in the will, and, that lie might prevent his
grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him by poisoning him. He now claims the property, and the sole question for our determination is, can he have it
%
The defendants say that the testator is dead; that his will was made in due form and has been admitted to probate, and that, therefore, it must have effect according to the letter of the law.
It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances he controlled or modified, give this property to the murderer.
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 into effect 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. „ If such a ease liad been present, to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot he doubted that they would have provided for it. It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letterl of the statute is not within the statute, unless it he within tliej intention of the makers. The writers of laws do not always express their intention perfectly, hut either exceed it or fall rational conjectures only, and this is callee t.ion; andliutherforth, in his Institutes (p. 407), says: “ When we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes short of it, so that judges are to collect
we extend or enlarge his meaning so as to take in more than his words express.”
Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for
qui haeret i/n
litera,
haeret in corbice.
In Bacon’s Abridgment (Statutes I, 5); Puffendorf (book 5, chapter 12), Rutherforth (pp. 422, 427), and in Smith’s Commentaries (814), many cases are mentioned where it was held that matters embraced in the general words of statutes, nevertheless, were not within the statutes, because it could not have been the intention of the law-makers that they should be included. They were taken out of the statutes by an equitable construction, and it is said in Bacon:
“
By an equitable construction, a case not within the letter of the statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the laW-makers could not set down every case in. express terms. In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question, did you intend to comprehend this case ? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” In some cases the letter cf a legislative act is restrained by an equitable construction; in others it is enlarged; in others th«|' construction is contrary to the letter. The equitable constructs on ” which restrains the .letter of a statute is defined by Aristotle,, as frequently quoted, in this manner:
Aequitas est correctio login generaliter latm qua parti deficit.
If the law-makers could, as to this case, be consulted, would they say that they intended by their general language that’the property of a testator or of an ancestor should pass to one who had taken his life for the express purpose of getting his property? In 1 Black
stone’s Commentaries (91) the learned author, speaking of the
¡
construction of statutes, says: “ If there arise out of them any absurd consequences manifestly contradictory to common \ reason, they are, with regard to those collateral consequences, ' void. * * * When some collateral matter arises out of the general words, and happen to be unreasonable, then the judges are in decency to conclude that the consequence was not foreseen by the parliament, and, therefore, they are at liberty to expound the statute by equity and only
quoad hoc
disregard it; ” and he gives as an illustration, if an act of parliament gives a man power to try all causes that arise within his manor of Dale, yet, if a cause should arise in which he himself is party, the act is construed not to extend to that because it is unreasonable that any man should determine his own quarrel.
There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street. It is commanded in the Decalogue that no work shall be done upon the Sabbath, and yet, giving the command a. rational interpretation founded upon its design, the Infallible Judge held that it did not prohibit works of necessity, charity or benevolence on that day.
What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable and just devolution of property, that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate
%
Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.
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Earl, J.
On the 13th day of August 1880, Francis B. Palmer made his last will and testament, in which- he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant, Elmer E. Palmer, subject to the support of Susan Palmer, his mother, with a gift over to the two daughters, subject to the support of Mrs. Palmer, in case Elmer should survive him and die tinder age, unmarried and without any issue. The testator at. the date of his will owned a farm and considerable personal property. lie was a widower, and thereafter, in March 1882, he was married to Mrs. Bresee, with whom before his marriage he entered into an ante-nuptial contract in which it was agreed that, in lieu of dower and all other claims upon his estate in case she survived him, she should have her support upon his farm during her life, and such support was expressly charged upon the farm. At the date of the will, and, subsequently, to the death of the testator, Elmer lived with him as a member of his family, and at his death was sixteen years old. He knew of the provisions made in his favor in the will, and, that lie might prevent his
grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him by poisoning him. He now claims the property, and the sole question for our determination is, can he have it
%
The defendants say that the testator is dead; that his will was made in due form and has been admitted to probate, and that, therefore, it must have effect according to the letter of the law.
It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances he controlled or modified, give this property to the murderer.
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 into effect 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. „ If such a ease liad been present, to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot he doubted that they would have provided for it. It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letterl of the statute is not within the statute, unless it he within tliej intention of the makers. The writers of laws do not always express their intention perfectly, hut either exceed it or fall rational conjectures only, and this is callee t.ion; andliutherforth, in his Institutes (p. 407), says: “ When we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes short of it, so that judges are to collect
we extend or enlarge his meaning so as to take in more than his words express.”
Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for
qui haeret i/n
litera,
haeret in corbice.
In Bacon’s Abridgment (Statutes I, 5); Puffendorf (book 5, chapter 12), Rutherforth (pp. 422, 427), and in Smith’s Commentaries (814), many cases are mentioned where it was held that matters embraced in the general words of statutes, nevertheless, were not within the statutes, because it could not have been the intention of the law-makers that they should be included. They were taken out of the statutes by an equitable construction, and it is said in Bacon:
“
By an equitable construction, a case not within the letter of the statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the laW-makers could not set down every case in. express terms. In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question, did you intend to comprehend this case ? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” In some cases the letter cf a legislative act is restrained by an equitable construction; in others it is enlarged; in others th«|' construction is contrary to the letter. The equitable constructs on ” which restrains the .letter of a statute is defined by Aristotle,, as frequently quoted, in this manner:
Aequitas est correctio login generaliter latm qua parti deficit.
If the law-makers could, as to this case, be consulted, would they say that they intended by their general language that’the property of a testator or of an ancestor should pass to one who had taken his life for the express purpose of getting his property? In 1 Black
stone’s Commentaries (91) the learned author, speaking of the
¡
construction of statutes, says: “ If there arise out of them any absurd consequences manifestly contradictory to common \ reason, they are, with regard to those collateral consequences, ' void. * * * When some collateral matter arises out of the general words, and happen to be unreasonable, then the judges are in decency to conclude that the consequence was not foreseen by the parliament, and, therefore, they are at liberty to expound the statute by equity and only
quoad hoc
disregard it; ” and he gives as an illustration, if an act of parliament gives a man power to try all causes that arise within his manor of Dale, yet, if a cause should arise in which he himself is party, the act is construed not to extend to that because it is unreasonable that any man should determine his own quarrel.
There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street. It is commanded in the Decalogue that no work shall be done upon the Sabbath, and yet, giving the command a. rational interpretation founded upon its design, the Infallible Judge held that it did not prohibit works of necessity, charity or benevolence on that day.
What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable and just devolution of property, that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate
%
Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.
Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. Ho 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. These maxims are dictated by public policy, have their foundation in universal law administered
| in all civilized countries, and have nowhere been superseded
j
by statutes. They were applied in the decision of the case of the !
New York Mutual Life Insurance Company
v.
Armstron
g (117 U. S. 591). There it was held that the person who pro-
j
cured a policy upon the life of another, payable at his death, ' and then murdered the assured to make the policy payable, could not recover thereon. Mr. Justice Field, writing the opinion, said: “ Independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered the' assured. It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building ¡that he had willfully fired.”
These maxims, without any statute giving them force or operation, frequently control the effect and nullify the language of wills. A will procured by fraud and deception, like any other instrument, may be decreed void and set aside, and so a particular portion of a will may be excluded from probate or held inoperative if induced by the fraud or undue influence of the person in whose favor it is.
(Allen
v.
M’Pherson,
1 H. L. Cas. 191;
Harrison’s
Appeal, 48 Conn. 202.) So a will may contain provisions which are immoral, irreligious or against public policy, and they will be held void.
Here there was no certainty that this murderer would survive the testator, or that the testator would not change his will, and there was no certainty that he would get this property if nature was allowed to take its course. He, therefore, murdered the testator expressly to vest himself with an estate. Under such circumstances, what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime
%
The will spoke and became operative at the death of the testator. He caused that death, and thus by his crime made it speak and have operation. Shall it speak and operate in his favor ? If he had met the testator and taken his property by
force, he would have had no title to it. Shall he acquire title hy murdering him? If he had gone to the testator’s house and by force compelled him, or by fraud or undue influence had induced him to will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet take the property ? To answer these questions in the affirmative, it seems to me, would be a reproach to the jurisprudence of our state, and an offense against public policy.
Under the civil law evolved from the general principles of natural law and justice by many generations of jurisconsults, philosophers and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered. (Domat, part 2, book 1, tit. 1, §
3;
Code Napoleon, § 727; Maclceldy’s Roman Law, 530, 550.) In the Civil Code of Lower Canada the provisions on the subject in the Code Napoleon have been substantially copied. But, so far as I can find, in no country where the common law prevails has it been deemed important to enact a law to provide for such a case. Our revisers and law-makers were familiar with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a
casus omissus.
It was evidently supposed that the maxims of the common law were sufficient to regulate such a case and that a specific enactment for that purpose was not needed.
For the same reasons the defendant Palmer cannot take any of tliis property as heir. Just beforeJhfi murder he wasmot an heir, and it was not certain that he ever would be. He ñííghPhave died before his grandfather, or might have been disinherited by him. He made himself an heir by the murder, and he seeks to take propértyaiñflñPfm has before been said as to him as legatee applies to him with equal force as an heir. He cannot vest himself with title by crime.
My view of this' case does not inflict upon Elmer anv
greater or other punishment for his crime than the law speci- . fies. It takes from him no property, but simply holds that he shall not acquire property by his crime, and thus be rewarded for its commission.
Our attention is called to
Owens
v.
Owens
(100 N. C. 240), as a case quite like this. There a wife had been convicted of being an accessory before the fact to the murder of her husband, and it was held that she was, nevertheless, ■ entitled -to dower. I am unwilling to assent to the doctrine of that case. The statutes provide dower for a wife who has the misfortune to survive her husband and thus lose his support and protection. It is clear beyond their purpose to make provision for a wife who by her own crime makes herself a "widow and willfully and intentionally deprives herself of the support and protection of her husband. As she might have died before him, aud thus never have been his widow, she cannot by her crime vest herself with an estate. The principle which lies at the bottom of the maxim,
volenti non fit injuria,
should be applied to such a case, and a widow should not,
for
the purpose of acquiring, as such, property rights, be permitted to allege a widowhood which she has wickedly and intentionally created.
The facts found entitled the plaintiffs to the relief they seek. -The error of the referee Avas in his conclusion of laAV. Instead of granting a
ndw
trial, therefore, T think the proper judgment upon the • facts found should be ordered here. The facts have been passed upon twice with the same result, first upon the trial of Palmer for murder, and then by the referee in this action. We are, therefore, of opinion that the ends of justice do not require that they should again come in question.
The judgment of the General Term and that entered upon the report of the referee should, therefore, be reversed and judgment should be entered as folloAvs: That Elmer E. Palmer -"and the administrator be enjoined from using any of the personalty or real estate left by the testator for Elmer’s benefit; that the devise and bequest in the Avill to Elmer be declared
ineffective to pass the title to him; that by'reason of the crime of murder committed upon the grandfather he is deprived of any interest in the estate left by him; that the plaintiffs are the true owners of the real and personal estate left by the testator, subject to the charge in favor of Elmer’s mother and the widow of the testator, under the ante-nuptial agreement, and that the plaintiffs have costs in all the courts against Elmeiv