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Report No. 110

IV. Law in Certain other Countries

49.12. Civil law (France and Germany).-

In certain countries of the world, the legislature has enacted a rule preventing a person who kills the intestate from succeeding to his property.1

1. See para. 49.11, et. seq, infra.

49.13. Russian law.-

In the civil law system, for example, the murderer is not allowed to reclaim the legacy.1

The French law has been thus stated with reference to the French Civil Code:2

"The heir must not be unworthy. The Code has three causes of unworthiness (indignite), all somewhat academic which may exclude an heir from the succession.3 These are: "(1) if he has been condemned for having killed or attempted to kill the deceased; (2) if he has brought a complaint of a capital charge against the deceased; (3) if he is aware that the deceased has been murdered and does not inform the legal authors of the murder." The children of an unworthy heir cannot take as representing him, but are not excluded if they are the next heirs in their own right.4 The unworthiness takes effect by operation of law, any judgment of the court being merely declaratory".

1. As to the civil law system, see references in Vedanyada v. Vedamal, 1904 ILR 27 Mad 591 (600).

2. Amos and Walton Introduction to French Law, (1967) p. 294.

3. Code Civil (1804) Att. 727.

4. Code Civil (1804) Att. 728 gives details.

49.13. Russian law.-

In the Russian Law of inheritance, a citizen disqualifies, himself from succession1 under will or intestacy, if he has promoted his inheritance by unlawful acts directed against the deceased, against any of his successors, or against the carrying out of the wishes of the deceased as expressed in his will, provided such acts are established in judicial proceedings. Of course, it is not necessary that the motive, of the person sought to be disqualified must be to gain the inheritance by his unlawful action.

1. Alice Tay The Russian Law of Inheritance, (1968) 17 ICLQ 472, 482 and Footnote 21.

49.14. U.S.A.-

In several States in the U.S.A., the principle had been recognised by statute as early as 1936. It is apparent1-3 that "the social interest served by refusing to permit the criminal to profit by his crime is greater than that served by the preservation and enforcement of legal rights of ownership.4"

The Restatement on Restitution provides that a person shall not be allowed to acquire property by murdering another.6

1. Wade Acquisition of Property by Wilfully killing another: Statutory solution, (1936) 49 Harvard Law Review 715, footnote.

2. See, further, Development in the law of Trusts, (1935) 48 Harvard Law Review 1162, 1180.

3. Scott on Trusts, (3rd Edn.), section 492.

4. Cardozo Nature of the Judicial Process.

5. Restatement of Restitution, sections 187-189.

49.15. Theory of Constructive Trust.-

Commentators in the U.S.A. have suggested a constructive trust as the logical device for denying enjoyment of benefits to one who accelerates his interest by murdering the persons whose continued existence prevents acquisition. However, most courts which reject literal interpretation of an unequivocal statute of descent, have found it simpler to draw an exception sanctioned by public policy.1-2

1. Development-Trusts, (1935) 48 HLR 1162, 1179.

2. See Amos Can a Murderer Acquire Title by His Crime and Keep It?" in Lect. on Leg. Hist. (1913), 3 Pomeroy Equity Jurisprudence, s. 1054, note b.



The Indian Succession Act, 1925 Back




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