Law students and attorneys alike may think that the topic of trusts and estates is dry and tedious. The administration of estates, coupled with the filing of estate and income tax returns, does not generally lend itself to topic glorification. However, in the right context, there may be no other area of the law that is more attention-grabbing than trusts and estates. Once in a while a case comes along to prove my theory.
In March of 2013, a case of first impression was presented to a New York Surrogate’s Court. In Matter of Demesyeux, 42 Misc. 3d 730 (N.Y. Sur. Ct. 2013), the Nassau County Surrogate’s Court was asked to determine whether Ms. Leatrice Brewer, a mother who was found not guilty by reason of insanity of killing her three children, should be disqualified from inheriting wrongful death proceeds emanating directly from their death.
The murder of Innocent Jr. and Michael Demesyeux at the hands of their mother is undisputed. After slitting the throat of their 8 year old sister Jewell, Ms. Brewer methodically drowned each of her five- year old sons in the bathtub. Then, noticing that their sister was still alive, she drowned her and returned her body to bed. By her own admission, Brewer confirmed that she intended to kill her children to protect them from voodoo. After killing her children, Ms. Brewer tried to commit suicide by drinking cleaning products and jumping out of a two story window. When she failed to kill herself, she called 911.
The boys’ father, Innocent Demesyeux, Sr. qualified as the administrator of his sons’ estates and filed a wrongful death action against Child Protective Services (CPS). Discovered records revealed that for many years CPS ignored calls for help from neighbors. Apparently, Nassau County’s social services agency visited Ms. Brewer’s apartment two days before the killings. They found no one home, but neglected to schedule an immediate followup visit. The lawsuit resulted in a wrongful death settlement of $250,000 for the death of his sons and $100,000 for the death of the elder daughter, whose estate is separate. On March 7, 2012, the Nassau County Supreme Court issued an order that the wrongful death proceeds were to be held in escrow until the Surrogate’s Court issued a decree to distribute them.
In certain New York counties, once there is a settlement or verdict in a wrongful death action the matter is transferred to Surrogate’s Court for the purpose of “compromising” the proceeds, or determining the proper distribution to each beneficiary. Unlike personal injury proceeds which belong to the estate, under New York’s wrongful death statute, EPTL 5-4.4, wrongful death proceeds are distributed directly to distributees in “proportion to the pecuniary injuries suffered by the decedent’s distributees.” However, under EPTL 4-1.4 (a) a parent may be disqualified as a distributee under the wrongful death paradigm, if the parent abandons the child. Abandonment can be defined as neglect and/or a breach of one’s duty to guide and care for a child. For example, In Matter of Wigfall, 20 Misc. 3d 648, (N.Y. Sur. Ct. 2008), a mother was found to have abandoned her child when she failed to put the child in a car seat and then fell asleep behind the wheel. The child died in the ensuing car accident.
In wrongful death “compromise” matters, the Surrogate is charged with analyzing the children’s distributees and creates a legal fiction, which assumes that the parent, or other next of kin, had an expectation of support from the minor child well into the future. In this case the analysis includes Ms. Brewer, the boys’ father, siblings, grandparents and potential unknown heirs. The Court also would have to determine whether Ms. Brewer suffered a loss and was entitled to fair and just compensation or whether she surrendered that right when she murdered her children.
Disqualification of a distributee (or closest next of kin) when one stands to benefit from one’s own wrongdoing (in the context of a guilty plea) is not a new issue in New York. In fact, the Court’s decision referenced several cases in which disqualification occurred. For example, in Matter of Sabol, 180 Misc. 2d 855, (N.Y. Sur. Ct. 1999), a child’s death resulted from physical abuse caused by his parents. The father pled guilty to manslaughter and the mother pled guilty to assault. The estate brought a wrongful death action against the City of New York on the basis that officials were aware of the abuse but did nothing to avert it. The Supreme Court automatically disqualified the father because he pled guilty to manslaughter. The mother was disqualified on the principle articulated in Riggs v. Palmer, 115 N.Y. 506, (N.Y. 1889) that one who takes a life should not be permitted to benefit from his own wrongdoing, but also on the basis of EPTL 4-1.4 (a) finding that she was disqualified on the basis of her abuse and abandonment of the child– a novel reading of the statute.
Unlike Sabol, what makes this case unique is that Brewer was found not guilty by reason of her mental illness. Thus, she is innocent in the eyes of the criminal court. The novel question is whether a finding of insanity in the criminal context excuses Ms. Brewer from disqualification in the wrongful death compromise civil proceeding even though the wrongful death proceeds resulted from her own reprehensible actions.
Remarkably, there is no shortage of New York rulings that a person who is found not guilty due to mental illness can, in fact, share in wrongful death proceeds. These cases were used by Brewer’s attorneys to make a convincing argument as to why she should share in the proceeds. However, none of the cited cases dealt with death proceeds but, rather, inheriting directly from an estate or via intestacy. In Matter of Wirth, 59 Misc. 2d, (N.Y. Sur. Ct. Erie Co. 1969), a man killed his wife but was found to be not guilty by reason of insanity. The court ruled that he could inherit from her intestate estate. In Matter of Fitzsimmons, 64 Misc 2d. 622 (N.Y. Sur. Ct. Erie Co. 1970), a man was found not guilty of killing his parents by reason of insanity, yet was entitled to take from their estates as a distributee. In Matter of Lupka, 56 Misc. 2d 677 (N.Y. Sur. Ct. Broome Co. 1968), a husband, who killed his wife but found not guilty due to his mental condition, was allowed to inherit under her will. Despite wondering what was happening in the late 1960s in upstate New York, a reader of these decisions comes away with a sense of the courts’ difficulty in grappling with two competing issues. The Court in the Demesyeux case describes it as “the equitable dilemma between two moral public policies”: a not guilty verdict in criminal court which dictates that no punishment should be had for the mentally ill killer, versus whether one should have the ability to inherit from one’s own wrongdoing. In this context, what is a Surrogate’s Court to do?
Surrogate Judge Edward W. McCarty’s decision rested on two legal principles. First, the court found that while not criminally responsible because mentally ill Brewer had the necessary mens rea, or criminal intent, to abandon her children. This disqualified her as a distributee. She admitted that she intended to kill her children (to protect them from a voodoo curse). Second, the Court drew a moral line in the sand, founded on the principle articulated in Riggs v. Palmer. The Court stated that it is one thing for a court to decide that a person should not be incarcerated for the crime and quite another for a criminal to be allowed to profit from that crime. The Court distinguished the instant case from the cases cited by Brewer’s attorneys, pointing out that there were no other assets in her children’s estates. The only fund was the one created by the underlying wrongful death action. This would not have existed but for Brewer’s wrongful conduct.
As a result, the court adopted the eponymous “Brewer Rule” that a “person found not responsible for a crime due to mental disease or defect who has the ability to recognize that her conduct was morally wrong when undertaken shall not financially benefit from that action.”
While this decision determines whether Brewer has a right to the wrongful death proceeds, other unanswered questions remain. With Brewer disqualified, who now stands to inherit the proceeds? The children had different fathers. Innocent Demesyeux was the father of the two youngest children and apparently abandoned them after they were born. One Ricky Ward was the eldest child’s father and he, too, left Brewer shortly after the birth of their daughter. While not a foregone conclusion, it is unclear whether the children’s respective fathers will share in the wrongful death proceeds. Mr. Ward recently was convicted of a felony and his letters of administration were revoked.
If the fathers are disqualified, then their other children, if any, could qualify to inherit under the intestacy statute. A guardian ad litem has been appointed for this purpose and to investigate the existence of any other heirs. If there were no other children, then it would seem reasonable for the deceased children’s grandmother be allowed to share in the death proceeds. To further muddy the waters (if it can get any muddier!), Brewer, who is currently at the Mid-Hudson Forensic Psychiatric Center in New Hampton, was reported to have given birth to another child. Under the law, that infant qualifies as a sibling and would be eligible to receive the proceeds. We will have to wait and see how the Court resolves the question of who will ultimately inherit these proceeds. Trusts and estates “dry and tedious”? Not so! Behind the nitty gritty of estate administration and tax returns, there are real-life stories about real people.