Opinion
February 14, 1950.
In an action to recover the assets of a decedent, which it is alleged are about to be distributed contrary to law, order granting defendants' motion to dismiss the first cause of action set forth in the complaint, on the ground that it fails to state facts sufficient to constitute a cause of action, affirmed, insofar as appeal is taken, with $10 costs and disbursements. The first cause of action is insufficient because of the defective form of pleading appearing in paragraphs "Ninth" and "Eleventh." The court, however, has considered the substantive merits of the case as though the matters adverted to in those paragraphs had been set forth as facts. In such view it appears that the complaint charges that the mother and her five-year-old son met their death by asphyxiation as a result of the suicide and homicide committed by the mother; that it is impossible to determine that the two persons died otherwise than simultaneously; that the mother left a will giving her entire estate to the boy, and the will contained no other provision in the event of the boy's failure to survive her. The action is brought by the boy's representatives against the mother's representatives. The boy left no property of his own. The mother left an estate of real and personal property. Under section 89 of the Decedent Estate Law, it must be held that the mother's property shall be disposed of as if she had survived. It follows that the gift to the boy under the will lapsed, and that for the purposes of distribution the mother died intestate. The principle that a wrongdoer, his estate or his heirs will not be permitted to profit by his wrongful act or crime ( Riggs v. Palmer, 115 N.Y. 506; Bierbrauer v. Moran, 244 App. Div. 87; Smith v. Metropolitan Life Ins. Co., 125 Misc. 670) will not be extended to apply to these facts. The case of Logan v. Whitley ( 129 App. Div. 666) concerned a contract obligation and is otherwise distinguishable. It seems never to have been held that a wrongdoer forfeits his own property by reason of his wrongful act that deprives another of a mere expectancy. Adel, Sneed, Wenzel and MacCrate, JJ., concur; Carswell, Acting P.J., concurs in the result. [ 196 Misc. 551.]