In re Crippen, Decd, [1911] P. 108
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[PROBATE, DIVORCE AND ADMIRALTY DIVISION]
IN THE ESTATE OF CUNIGUNDA (OTHERWISE CORA) CRIPPEN, DECEASED.
1911 Jan. 30; Feb. 6, 13.
SIR SAMUEL EVANS, PRESIDENT.
Probate - Practice - Administration - "Special Circumstances" - Court
of Probate Act, 1857 (20 & 21 Vict. c. 77), s. 73 - Husband and Wife -
Murder of Wife by Husband - Evidence - Effect of Conviction as
Evidence - Res inter alios acta - Legal Personal Representative of
Husband passed over - Grant to Next of Kin of Wife.
A certified copy of the conviction of a husband for the murder of his
wife is admissible in evidence against him in a civil proceeding inter
alios acta, and is admissible not merely as proof of the conviction,
but also as prima facie evidence of the commission of the crime.
The conviction of a husband of the murder of his wife -
Held to be a "special circumstance" within the meaning of s. 73 of the
Court of Probate Act, 1857; and the Court passed over the legal
personal representative of the husband and granted administration to
the estate of the intestate wife, upon the application of one of her
next of kin.
Dictum of Bramwell L.J. in Leyman v. Latimer, (1878) 3 Ex. D 352,
doubted.
Yates and Others v. Kyffin-Taylor and Wark, [1899] W. N. 141,
disapproved.
MOTION for a grant of administration in respect of the estate of an
intestate wife, passing over the legal personal representative of her
husband, who survived her.
Cunigunda (otherwise Cora) Crippen died on or about February 1, 1910,
leaving Hawley Harvey Crippen, her lawful husband, her surviving.
On October 22, 1910, the husband was found guilty of the wilful murder
of his wife and sentenced to death.
On November 8, 1910, he made his will, and appointed Ethel Clara Le
Neve sole executrix and universal legatee. A caveat was entered in the
husband's estate, but, on the same being warned, no appearance was
entered to the warning.
The wife's next of kin were Theresa Hunn, a sister of the whole blood,
and three sisters and two brothers of the half blood.
Harold Otto Seyd, as attorney of Theresa Hunn, moved for a grant of
letters of administration in respect of the estate of the wife.
[*109]
The notice of motion, which was dated January 20, 1911, was served on
the solicitors for the executrix of the husband.
W. O. Willis, for the applicant. The present case is unlike any case
previously decided. It is submitted that the grant should be made to
some one other than the representative of the husband, e.g., the
wife's sister. The husband's representative, if and when constituted,
is not entitled to participate in the wife's estate in the present
case, as it is contrary to public policy that his estate should
benefit by his crime. As a general rule the grant is made according to
interest, but the case of Cleaver and Others v. Mutual Reserve Fund
Life Association (1) establishes that the beneficial interest in the
wife's estate cannot in the present circumstances go to the husband's
estate or his representative, as such a grant would be contrary to
public policy.
Durley Grazebrook, for the executrix of the husband's will. In the
first place the affidavit of the applicant does not specify where the
property the subject of the application is. Some of the property in
the hands of the police at Scotland Yard never did belong to the wife,
but the applicant appears, from his affidavit, to be claiming the
whole of such property as well as money in the bank. Unless and until
the applicant (representing one of the wife's next of kin) has
conclusively proved, by admissible evidence, the fact of the wilful
murder of the wife by the husband, he cannot oust the legal personal
representative of the husband, i.e., the executrix of his will, in
obtaining probate, nor prejudice or prejudge the rights of the
husband's legal personal representative, whatever those rights might
be. The affidavit of the applicant is altogether insufficient, and is
for the greater part hearsay and quite inadmissible; but even the duly
certified copy of the husband's conviction cannot be received in these
or any civil proceedings for the purpose of proving that the testator
murdered his wife. (2) In the case of Cleaver and Others v. Mutual
Reserve Fund Life Association (3) the question as to
(1) [1892] 1 Q. B. 147.
(2) Yates and Others v. Kyffin-Taylor and Wark, [1899] W. N. 141.
(3) [1892] 1 Q. B. 147; and see Lord Esher M.R. at p. 151. [*110]
whether the conviction of Mrs. Maybrick was admissible, or, if
admissible, conclusive evidence of the murder of Mr. Maybrick, was
never really argued: it was a case of contract, the consideration for
which had been received by the persons who were endeavouring to avoid
liability at the suit of the legal personal representatives of the
other contracting party.
The old law, speaking generally, was that felons were intestable (1);
but, later, even before the statute to abolish forfeitures for treason
and felony (2), the executor of the will of a convicted person was
entitled to probate thereof, though the effect of the verdict was to
cause a forfeiture of the property of the deceased to the Crown. (3)
However, since 1870, there are no forfeitures on conviction; and it
would seem that the only disqualifications arising from convictions
for felony are in respect of the holding of certain offices; and the
restrictions on alienation of property are aimed at the alienation by
the convict in his lifetime. But even if there were admissible and
conclusive evidence before this Court that the man murdered his wife,
he has suffered his punishment; he has paid the extreme penalty; and a
person convicted of felony, after enduring the punishment, is in law
no longer a felon. (4)
A will speaks only from the death, and in law the husband, at the
moment when he expiated his crime on the scaffold, was no longer a
felon: his will from that moment became operative. The executrix is
entitled to probate. As his legal personal representative, she is
entitled, on taking probate, to apply for a grant of administration to
the estate of the husband's deceased wife, unless there is before the
Court, at the time of such application, admissible evidence clearly
proving that she has no such title; in other words, that he had none.
W. O. Willis in reply.
1911. Feb. 13. SIR SAMUEL EVANS, PRESIDENT. By this motion an
application is made for a grant of letters of
(1) Godolphin's Orphan's Legacy, 3rd ed., pt. i., ch. xii., pp. 35 et
seq.
(2) (1870) 33 & 34 Vict. c. 23.
(3) In the Goods of Bailey, (1861) 2 Sw. & Tr. 156.
(4) Leyman v. Latimer and Others,3 Ex. D. 352. [*111]
administration of the estate of Cunigunda (otherwise Cora) Crippen,
deceased, to the attorney of her sister, Mrs. Hunn.
The deceased met with her death on February 1, 1910. She died
intestate, leaving her husband, Hawley Harvey Crippen (now deceased),
surviving her.
He made a will, dated November 8, 1910, appointing Ethel Le Neve his
executrix and universal legatee.
This executrix opposes the application which is now being made, and
claims that the grant of letters of administration should be made to
her as the personal representative of the said Hawley Harvey Crippen,
deceased.
The circumstances can be shortly stated under a few dates.
On October 22, 1910, the said Hawley Harvey Crippen, upon an
indictment charging him with the wilful murder of his wife, the
deceased intestate, was found guilty and was sentenced to death.
He appealed to the Court of Criminal Appeal.
On November 5, 1910, his appeal was dismissed and the verdict and
sentence were affirmed.
Three days, later, on November 8, 1910, he made his will, appointing
Ethel Le Neve executrix and universal legatee.
On November 23, 1910, the sentence of death was carried out, and he
was duly executed for the murder of his said wife.
By s. 73 of the Court of Probate Act, 1857 (1), this Court has a
discretion (which of course must be judicially exercised), by reason
of special circumstances, to appoint such person as the Court shall
think fit to be administrator of the personal estate of a deceased
intestate, in lieu of the person who would otherwise be by law
entitled to the grant of administration.
In the present case a man who has been convicted of the wilful murder
of his wife has, after his conviction, made a will appointing a person
his executrix and universal legatee, who claims, as such executrix, to
administer the murdered wife's estate, and as legatee to be entitled
to the murdered wife's property.
These are, surely, "special circumstances."
I therefore pass over and decline to appoint the executrix; and
(1) 20 & 21 Vict. c. 77. [*112]
I appoint the applicant as attorney of the deceased woman's sister to
be administrator of the deceased woman's estate on the sister's
behalf.
If I am right in this exercise of the discretion of the Court, there
remains nothing which it is necessary for me to decide upon this
motion.
But in case it should be determined that I ought to decide the points
raised in argument before exercising my discretion, I will shortly
state my views upon them.
It was argued before me, on behalf of the executrix, Ethel Le Neve,
that I was bound to give her the grant of administration, because the
conviction of her testator not only did not prove that he was guilty
of the murder, but could not be admissible at all as evidence of the
commission of the crime.
It is clear that the law is, that no person can obtain, or enforce,
any rights resulting to him from his own crime; neither can his
representative, claiming under him, obtain or enforce any such rights.
(1) The human mind revolts at the very idea that any other doctrine
could be possible in our system of jurisprudence.
The proposition argued was, that a judgment of conviction in a
criminal prosecution like the one in question cannot be received, in a
civil action or matter, as any evidence to establish the truth of the
facts on which it was rendered, and that it is not admissible at all
for that purpose.
The case of Yates and Others v. Kyffin-Taylor and Wark (2)was cited.
That was a decision of the Vice-Chancellor of the County Palatine of
Lancaster. I cannot find that this case was carried to the Court of
Appeal. Unless it was affirmed on appeal, it is not binding on this
Court.
A passage from the judgment of Bramwell L.J. in Leyman v. Latimer and
Others (3) was relied on. It runs thus: "It is plain from the numerous
authorities cited in 2 Taylor on Evidence, pt. iii., ch. iv., par.
1693, p. 1416 (7th ed.), that a conviction for felony is res inter
alios acta, and of itself is no evidence in any civil proceeding that
the person convicted has
(1) Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q. B.
147.
(2) [1899] W. N. 141.
(3) 3 Ex. D. 352, at p. 354.
[*113] committed felony." The decision in the case did not rest upon
this ground; and the case is not referred to at all in any of the
subsequent editions of Taylor on Evidence; nor in the notes to the
leading authority of the Duchess of Kingston's Case. (1)
With great deference to the high authority of Lord Bramwell, I venture
to doubt whether the authorities cited in Taylor on Evidence (ubi
supra) support his proposition. Those authorities are the following:-
Smith v. Rummens (2); Hathaway v. Barrow (3); Blakemore v.
Glamorganshire Canal Co. (4); Justice v. Gosling (5); Jones v. White
(6); Hillyard v. Grantham (7); Gibson v. McCarty (8); Helsham v.
Blackwood (9); Wilkinson v. Gordon (10); Jameson v. Leitch. (11) Many
of these cases were decided (and others followed the decisions) on
narrow and special grounds when the laws of evidence were very
different from what they now are, e.g., on the ground that to admit
the conviction as evidence, where it had been obtained wholly or
partly on the information or evidence of a party who was afterwards
interested in the civil case, would be to allow the party in the civil
case to swear in his own cause, in breach of the rule then in force,
which Sir John Nicholl (in one of the cases cited) described as "that
salutary maxim which prohibits parties to suits from giving evidence
for themselves."
Reliance was also placed on a passage in the opinion of the judges
(per Blackburn J.) delivered to the House of Lords in Castrique v.
Imrie (12) which is as follows: "A judgment in an English Court is not
conclusive as to anything but the point decided, and therefore a
judgment of conviction on an indictment for forging a bill of
exchange, though conclusive as to the prisoner being a convicted
felon, is not only not conclusive, but is not even admissible evidence
of the forgery in an action on the bill, though
(1) 2 Smith's Leading Cases, 11th ed., pp. 731, 732.
(2) (1807) 1 Camp. 9.
(3) (1807) 1 Camp. 151.
(4) (1835) 2 C. M. & R. 139.
(5) (1852) 21 L. J. (C.P.) 94.
(6) (1717) B. N. P. 233; 1 Str. 68.
(7) (1750) cited (Lord Hardwicke) in Brownsword v. Edwards, 2 Ves.
Sen. 246.
(8) (1736) Cas. temp. Hardwicke, 311; cited in 11 C. B. at p. 124.
(9) (1851) 20 L. J. (C.P.) 187; 11 C. B. 111.
(10) (1824) 2 Addams Ecc. 152 (Sir J. Nicholl).
(11) (1842) Milw. Ecc. R. (Ir.) 683, at p. 688.
(12) (1870) L. R. 4 H. L. 414, at p. 434. [*114]
the conviction must have proceeded on the ground that the bill was
forged." The decision in that case was upon a wholly different
question. The passage referred to is an illustration of a case where a
conviction being res inter alios acta might be properly excluded -
e.g., it may well be that in an action by A. against B., on a bill of
exchange, a conviction of C. for forgery of the bill would not be
admissible in evidence.
In my opinion the question raised before me, or the question which
might arise in this very matter in another Court, in an action
relating to the property of the deceased intestate is a different
one.
Here the representative of a convicted felon claims to be entitled to
administration of an estate because she claims to be entitled to the
estate itself - the only claim to the estate being one which results
from the felon's crime.
In another Court, she might bring an action to recover the estate from
the administrator whom I now appoint.
It is exactly the same as the case of the felon himself making the
claim, or bringing the action. Would not the fact of his conviction be
evidence against him? Would it be right to treat it as res inter alios
acta, and to say it was not admissible at all in a civil action
brought by him?
The complete maxim is "Res inter alios acta alteri nocere non debet."
There is no question of "alteri nocere" here.
I think, rather, that the matter should be decided upon the following
principle, which was laid down by the judges in the Duchess of
Kingston's Case (1): "What has been said at the bar is certainly true,
as a general principle, that a transaction between two parties, in
judicial proceedings, ought not to be binding upon a third; for it
would be unjust to bind any person who could not be admitted to make a
defence, or to examine witnesses, or to appeal from a judgment he
might think erroneous; and therefore the depositions of witnesses in
another cause in proof of a fact, the verdict of a jury finding the
fact, and the judgment of the Court upon facts found, although
evidence against the parties, and all claiming under them, are not, in
general, to be used to the prejudice of strangers."
(1) 2 Smith's Leading Cases, 11th ed., pp. 731, 732. [*115]
In the present day a person before he can be convicted is "admitted to
make a defence, to examine witnesses, and to appeal from a judgment he
may think erroneous" - and it may be added, to give evidence in his
own behalf.
In these circumstances I think the maxim "Omnia præsumuntur rite esse
acta" ought to apply. In some cases, e.g., in the case of a finding of
a jury acting pursuant to a commission in lunacy, the presumption of
law is that the verdict of the jury was well founded. (1) I am aware
that in such a case the state of mind, and not the commission of a
particular act, is in question; but I see no reason why the analogy
should not be followed in a criminal case.
If it be that the rules of evidence ever were as contended for the
executrix in this regard, I think, in the circumstances attending
trials for crimes in these days, that they ought to be reconsidered
and revised.
In my opinion, where a convicted felon, or the personal representative
of a convicted murderer who has been executed, brings any civil
proceeding to establish claims, or to enforce rights, which result to
the felon, or to the convicted testator from his own crime, the
conviction is admissible in evidence, not merely as proof of the
conviction, but also as presumptive proof of the commission of the
crime.
Solicitors for applicant: Robert Seyd & Co.
Solicitors for executrix of the husband: Hopwood & Sons.
(1) Prinsep and the East India Company v. Dyce Sombre and Others,
(1856) 10 Moo. P. C. 232, at p. 244.
H. D. G.
NOTE BY THE PRESIDENT.
"After this judgment was reported in the Times Law Reports, Mr. Graham
Hastings, K.C., kindly wrote to me calling my attention to a case
which arose in connection with Palmer, the Rugeley murderer, in which
a similar point was decided by Lord Romilly M.R. in 1858. There the
verdict was one of a coroner's jury. The case is The Prince of Wales,
&c., Association Company v. Palmer, and is reported in 25 Beavan, 605.
- S. T. E."