IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1998 Term
ANDREW LAKATOS AND VIRGINIA LAKATOS,
ESTATE OF FRANK J. BILLOTTI, DECEASED, AND ROSE ANN BILLOTTI,
Appeal from the Circuit Court of Monongalia County
Honorable Robert B. Stone, Judge
Civil Action No. 97-C-112
Submitted: September 23, 1998
Filed: November 20, 1998
David J. Straface,
J. Rollo, Esq.
John R. Angotti, Esq. Morgantown, West Virginia
Angotti & Straface Attorney for the Appellees
Morgantown, West Virginia
Attorneys for the Appellants
JUSTICE MAYNARD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. The words
"or otherwise" contained in W.Va. Code § 42-4-2 (1931) mean, in addition to
descent and distribution, will, and policy or certificate of insurance, any and every
other way one could take property, including joint tenancy with the right of survivorship.
To the extent State ex rel. Miller v. Sencindiver, 166 W.Va. 355, 275 S.E.2d 10
(1980) is inconsistent with this holding, it is overruled.
2. When one joint tenant murders his or her cotenant, W.Va. Code § 42- 4-2 (1931) controls who acquires or takes the property. W.Va. Code § 42-4-2 provides, in part, that "the money or the property to which the person so convicted would otherwise have been entitled shall go to the person or persons who would have taken the same if the person so convicted had been dead at the date of the death of the one killed . . ., unless by some rule of law or equity the money or the property would pass to some other person or persons." This plain statutory language clearly provides that upon the death of the victim, the total estate held in a joint tenancy passes in its entirety to the person or persons who would have taken the same if the slayer had predeceased the victim.
The appellants, Andrew and Virginia
Lakatos, parents of Carolyn Sue Billotti, deceased, appeal the December 1, 1997 order of
the Circuit Court of Monongalia County, West Virginia. The circuit court held that Carolyn
Billotti's estate is not entitled to any interest in the property Carolyn Billotti owned
in joint tenancy with her husband, Frank J. Billotti. We disagree.
Frank J. Billotti and Carolyn Sue
Billotti owned three parcels of real estate. One parcel was owned as tenants in common
without the right of survivorship and two parcels were owned as joint tenants with the
right of survivorship. On October 9, 1982, Frank Billotti murdered his wife and two
daughters. Carolyn Billotti died intestate; her only heirs at law were her husband, Frank
Billotti, and her parents, Andrew and Virginia Lakatos, the appellants in this case. Frank
Billotti was convicted of the murders and was sentenced to life in prison without the
possibility of parole. Billotti died in prison on November 28, 1996.
On November 15, 1982, shortly after he
committed the murders, Frank Billotti conveyed without consideration the two properties he
held in joint tenancy with his wife to his mother, Rose Ann Billotti, the appellee in this
case. On January 11, 1990, Rose Ann Billotti conveyed the two properties to a straw party,
Ellen F. Harner. Contemporaneously, Ellen F. Harner conveyed the property to Frank J.
Billotti and Rose Ann Billotti by deed of even date therewith.
The appellants filed a complaint in
circuit court, seeking partition of the three parcels of real estate which were owned by
Carolyn Billotti and Frank Billotti. The court granted the request in part and denied the
request in part. The request for partition of the property held as tenants in common was
granted and the court ordered the property be sold at public auction.See footnote 1 1 Pursuant to State ex rel. Miller v.
Sencindiver, 166 W.Va. 355, 275 S.E.2d 10 (1980), the court denied the request for
partition of the two parcels held in joint tenancy. The appellants appeal the circuit
court's order as it relates to the denial of partition of the properties held in joint
On appeal, the appellants contend the
circuit court erred in denying their request for partition of the two properties which
were held in joint tenancy with survivorship. They argue they are entitled to partition of
the properties because West Virginia law prohibits Frank Billotti from profiting from the
murder of his wife.
Joint tenancy is described as
"[a]n estate held by two persons . . . [in] which the cotenants enjoy equally during
their lives and which goes wholly to the survivor as an estate of inheritance upon the
death of either of them." In re King's Estate, 261 Wis. 266, 269, 52 N.W.2d
885, 887 (1952). This Court previously held:
Code, 42-4-2, part of our statute on descent and distribution, prohibits one who feloniously kills another from taking or acquiring property from the victim; but Code, 42-4-2 and 36-1-20 are separate statutes in separate chapters on unrelated topics and should not be read in pari materia. Therefore, we will not apply the statutory prohibition in Code, 42-4-2 to estates created by Code, 36-1-20.
Syllabus Point 2, Miller, supra. W.Va. Code § 36-1-20 (1981) reads as follows:
preceding section [§ 36-1-19] shall not apply to any estate which joint tenants have as
executors or trustees, nor to an estate conveyed or devised to persons in their own right,
when it manifestly appears from the tenor of the instrument that it was intended that the
part of the one dying should then belong to the others. Neither shall it affect the mode
of proceeding on any joint judgment or decree in favor of, or on any contract with, two or
more, one of whom dies.
the instrument of conveyance or ownership in any estate, whether real estate or tangible
or intangible personal property, links multiple owners together with the disjunctive
"or," such ownership shall be held as joints tenants with the right of
survivorship, unless expressly stated otherwise.
It is this holding that we revisit
We begin by reviewing this Court's
previous opinions regarding the public policy considerations of this important issue in
West Virginia. This Court has on prior occasions plainly and unequivocally stated its
aversion to permitting a murderer to profit from his or her wrongful act. In Johnston
v. Metropolitan Life Ins.Co., 85 W.Va. 70, 100 S.E. 865 (1919), the wife who was named
as the beneficiary under a life insurance policy was denied the right to recover the
proceeds of the policy upon the death of her husband whom she had murdered. The Johnston
It would be monstrous for the courts to lend their aid to anyone for the purpose of enriching himself by the commission of murder, and to entertain suit on behalf of the beneficiary to recover upon this policy of insurance would be doing that very thing. It is against the policy of our law to reward one for the commission of crime, and whenever the effect of the enforcement of a right which one would otherwise have would be to give him an advantage by reason of his felonious act, the courts will decline to entertain it. Id.at 71-72, 100 S.E. at 866.
In Metropolitan Life Ins. Co. v.
Hill, 115 W.Va. 515, 177 S.E. 188 (1934), this Court further held that the principle
articulated in Johnston was not limited to murder but applied to any unlawful
intentional cause of death, whether felonious or not. An insurance company brought suit in
Hill to determine who should receive the proceeds of a policy on the life of
William A. Hill. His wife, the beneficiary named in the policy and his sole distributee,
killed him and was convicted of involuntary manslaughter. The Hill Court stated,
"The Johnston opinion displays no intention to limit the test to murder in a
technical sense. The basis of the opinion is the fundamental principle of justice that one
shall not profit by his own wrong." Id. at 518, 177 S.E. at 189.
West Virginia's "slayer
statute," W.Va. Code § 42-4-2, was enacted after the Johnston decision. The Hill
Court explained that the statute was a codification of the policy espoused in Johnston
and was enacted to arrange for the disposition of property withheld from the killer
because Johnston left the proceeds of the policy with the insurance company. W.Va.
Code § 42-4-2 (1931) reads as follows:
No person who has been convicted of feloniously killing another, or of conspiracy in the killing of another, shall take or acquire any money or property, real or personal, or interest therein, from the one killed or conspired against, either by descent and distribution, or by will, or by any policy or certificate of insurance, or otherwise; but the money or the property to which the person so convicted would otherwise have been entitled shall go to the person or persons who would have taken the same if the person so convicted had been dead at the date of the death of the one killed or conspired against, unless by some rule of law or equity the money or the property would pass to some other person or persons.
We now must determine if this code
section applies to property held in joint tenancy with the right of survivorship. W.Va.
Code § 42-4-2 was discussed in State ex rel. Miller v. Sencindiver, 166 W.Va. 355,
275 S.E. 10 (1980). In Miller, Dorothy and George Taylor owned property as joint
tenants with survivorship. Dorothy killed George, was indicted for murder, but pleaded
guilty to involuntary manslaughter. Their son sued to divest Dorothy's title to the
property. After listing the states which had adopted legislation to sever jointly held
estates when a cotenant intentionally kills the co-owner, the Miller Court
determined, "We have no such statute, unless the 'or otherwise' in Code, 42- 4-2 has
that effect. And we believe it does not." Miller at 358, 275 S.E.2d at 12. The
Court reasoned that "[t]he Taylors' rights were established by their deed and did not
involve descent or inheritance." Id. at 359, 275 S.E.2d at 13 (citations
omitted). In other words, W.Va. Code § 42-4-2, which is included in the chapter titled
"Descent and Distribution," did not apply to a survivorship created in a deed
pursuant to W.Va. Code § 36-1-20, which is included in the chapter titled "Estates
The Miller Court acknowledged
that many courts have analyzed this problem from the perspective that equity prevents one
from profiting from his wrong and went on to discuss the four methods courts have used to
deal with the property issue:
Some find that title held in joint tenancy with survivorship is vested by the original conveyance and subsequent acts, even if equitably wrong, cannot divest a tenant of rights to acquire a survivorship estate. Others limit the wrongdoer's estate, creating a constructive trust by which the property is held for those who would have acquired it were it not for the killing. Some sever the estate into a tenancy in common[.] Three courts have deprived the killer of all portions of the tenancy. (Citations omitted).
Miller at 360-61, 275 S.E.2d at 13-14. See also John W. Fisher, II, Joint
Tenancy in West Virginia: A Progressive Court Looks at Traditional Property Rights, 91
W.Va. L. Rev. 267, 295 (1989). This Court finally "decline[d] to decide that a joint
tenancy with survivorship created by prior conveyance is vested property that may be
divested by the killing of one's cotenant." Miller at 361, 275 S.E.2d at 14
(footnote omitted). The ultimate result was that Dorothy was entitled to sole ownership of
the property in spite of the fact she shot and killed her husband.
We no longer believe this decision
accurately reflects the clear and actual intent of the Legislature. When our slayer
statute, W.Va. Code § 42-4-2, was adopted, the phrase "or otherwise" was
included in the statute, and the phrase is found following a list of methods by which one
may take property. The list includes descent and distribution, will, or by any policy or
certificate of insurance. The words "or otherwise" contained in W.Va. Code §
42-4-2 (1931) mean, in addition to descent and distribution, will, and policy or
certificate of insurance, any and every other way one could take property, including joint
tenancy with the right of survivorship. To the extent that State ex rel. Miller v.
Sencindiver, supra, is inconsistent with this holding, it is overruled.
The Supreme Court of Montana's reasoning in In re Cox' Estate, 141 Mont. 583, 380 P.2d 584 (1963), is persuasive. In that case, a husband and wife, Jess and Bess Cox, held jointly owned property. Jess murdered his wife, then committed suicide.
Jess's heirs thereupon sought to inherit the entire property. The Montana court found
that Jess became an "involuntary trustee" of Bess's share for the benefit of her
heirs.See footnote 2 2 The court
If we accept the petitioner's view, then we must believe that the Legislature contemplated a situation where a joint owner would feloniously kill the other joint owner, thereby taking all, and approved such a result. We cannot believe that such an abhorrent result was contemplated by the Legislature.
* * *
We, too, find it unthinkable that our Legislature contemplated giving the fruits of his crime to one who commits a homicide, and find inherent in the statute dealing with joint property the reservation that the felonious killer shall not benefit by his wrong. Id. at 589-90, 380 P.2d at 587-88.
Likewise, the West Virginia Legislature
did not contemplate giving the fruits of his or her crime to one who commits a homicide.
When one joint tenant murders his or her cotenant, W.Va. Code § 42-4-2 (1931) controls
who acquires or takes the property. W.Va. Code § 42-4-2 specifically states, in part,
that "the money or the property to which the person so convicted would otherwise have
been entitled shall go to the person or persons who would have taken the same if the
person so convicted had been dead at the date of the death of the one killed. . ., unless
by some rule of law or equity the money or the property would pass to some other person or
persons." This plain statutory language clearly provides that upon the death of the
victim, the total estate held in a joint tenancy passes in its entirety to the person or
persons who would have taken the same if the slayer had predeceased the victim. If Frank
Billotti had died before his wife, Carolyn would have taken the entire property which
would have passed to her heirs at the time of her death. We reach that same result today.
The entire property at issue here passes to Carolyn's heirs.
Even in the complex and sophisticated
world of modern law, we still treasure and revere our ancient equitable maxims. These
principles of law became equitable maxims because the simple, immutable truths which they
contain are so basically and universally fair that they are without dispute obvious to
all. Aside from our slayer statute, the old equitable maxim nemo ex suo delicto
meliorem suam conditionem facere potest, which we commonly state as no man should
profit from his own wrong, but which literally means no one can make his condition better
by his own misdeed, supports the conclusion we reach today.
Having concluded that W.Va. Code § 42-4-2 (1931) applies to this case, we find the statute controls who takes the property. As Carolyn Billotti's heirs, Andrew and Virginia Lakatos own the entire property. Rose Billotti takes nothing.
The decision of the Circuit Court of
Monongalia County is reversed.
Footnote: 11 This portion of the circuit court's order was not appealed by either party and is, therefore, not considered in this opinion.
Footnote: 22 Title to Jess's share was not brought into issue by the pleadings.