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The Green Bag

tions of the same general question; such as, murder by a devisee or legatee and its effect upon the construction and enforcement of the will; or murder by the holder of an insurance policy, and its consequent effect upon the contract. The variant cases are valuable as affect ing the general principle; and no attempt is made to characterize each case as it is cited. Unless some device of equity is re sorted to, the question is mainly one of statutory construction. Riggs v. Palmer, and the supporting case of Perry v. Strawbridge, have recourse to what op posing courts derisively call "rational interpretation." Since the legislature could not have meant what they say had they contemplated the given case, the court supplies their real meaning in the interest of "a sound public policy." Shellenberger v. Ransom, on the other hand, rejects such a method of con struction, and insists that what the legislature meant in the statute of de scent is to be determined, "not by hypothetical resort to conjecture as to their meaning, but by a construction of the language used." Mr. Justice Gray, who dissented in Riggs v. Palmer, thinks that "the demands of public policy are satisfied by the proper execution of the laws and the punishment of the crime." And, generally, those courts that allow the murderer to take say that when the legislature has spoken "it becomes the courts to be silent." To amend a bad law or to enact a good one is "beyond the province of the courts." There is merit in both of these views. The doctrine of Riggs v. Palmer seems better to subserve the ends of "sub stantial justice." It is, in fact, almost a necessity in point of morals, and cer tainly does not do any great violence to the meaning of the statute. "We are not satisfied," says the Missouri court,

"with the reasoning of those cases [refer ring to Shellenberger v. Ransom and others], and have been unable to reach, the conclusion that a mere prospective legal heir, or devisee, can make certain that which was uncertain, by his own felonious act. ..." This criticism is especially pertinent where a testator is slain, since the will is ambulatory until death. To prevent the result alluded to is not a "judicial usurpation," since the court only determines what the legislature could not possibly have deter mined beforehand; namely, whether the law applies to the given case. This the court may have to decide with respect to any statute. "Shall we stick in the bark?" exclaims the Missouri court, "and adhere to the strict letter of the law, or shall we say that whilst the case may fall within the letter of the law, yet it does not fall within the pre sumed legislative intent?" "... the pathway of judicial literature," it con tinues, "... is literally strewn with cases which, like beacon lights, have guided the hand of justice in preventing unjust, unrighteous, absurd, unreason able, and abhorrent results from the use of general words and expressions in statutes. . . ." The court was evidently aroused. Many judges hew to the line, and thus leave behind them consistent decisions, monuments of their legal acumen, and reputations as great jurists; but do we not need more judges who are some times willing to sacrifice the form if only they may preserve the substance; and who are content to win the encomium that was paid to Chief Justice Shaw,— that of being a great magistrate? Shellenberger v. Ransom, on the other hand, insures certainty in the interpreta tion of statutes, and in the fixing of legal rights, or at least a certain and untroublesome rule for that purpose.