里格斯诉帕尔默案判决书（中英文对照）

2006-11-14 17:02:27 作者：赵玉增 来源：本站原创 浏览次数：0 网友评论 0 条

赵玉增  译

[译者按] 近日，在工作和学习之余，试着翻译了里格斯诉帕尔默案判决书。翻译的过程，也是一次很好的学习过程，从中体悟到了美国法官的睿智和中美判决书的不同。美国法官撰写的判决书，不仅仅是一份针对案件的判决书，也是一篇充满学术睿智的学术论文。他们的判决书不是“合议庭”认为，而是“某某法官”认为，不同的法律意见也一并表达出来。阅读美国法官撰写的判决书，在理解法官如何判案的同时，也是在学习判案法官的法律见地，而且能够读到不同法官的不同法律见地，真正体悟到了判决书的说理性。这样的判决书值得我们阅读、体悟和学习。

现将判决书译文贴于“民间法与法律方法网”，其他网站或个人网页如需转载，请致信 zhaoyuzeng@126.com ，并写明“转载于‘民间法与法律方法网’”。受个人翻译水平所限，译文未必恰切，可能还存在着错误，如果您能将不当、误译之处，致信于 zhaoyuzeng@126.com ，译者将不胜感谢。译文中厄尔法官之判决意见部分，参照了张卓明君的翻译，在此深表感谢。

RIGGS V. PALMER Court of Appeals of New York, 1889

（里格斯诉帕尔默案，纽约上诉法院，1889年。）

        Rights of Legatees-Murder of Testator

（有关继承人杀害遗嘱人有无继承权的问题）

        The law of New York relating to the probate of wills and the distributions of estates will not be construed so as to secure the benefit of a will to a legatee who has killed the testator in order to prevent a revocation of the will. GRAY and DANFORTH, JJ., dissenting.

（纽约州关于公正遗嘱和分割遗产的法律，不能被解释成继承人为阻止遗嘱人撤销遗嘱，可以通过杀害遗嘱人的方式来获得遗嘱利益。——格雷和丹佛斯法官有不同的法律意见。）

        Appeal from supreme court, general term, third department.

（上诉来自纽约州最高法院，普通审期，第三法庭。）

        Leslie W Russell, for appellants. W. M.Hawkins for respondents.

（莱斯里 ·W·茹塞尔为上诉人辩护；W·M·豪肯斯为被上诉人辩护。）

        EARL,J. on the 13th day of August 1880, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant Elmer E. Palmer, subject to the support of Susan Palmer, his mother, with a gift over to the two daughters, subject to the support of Mrs. Palmer in case Elmer should survive him and die under age, unmarried, and without any issue. The testator, at the date of his will, owned a farm, and considerable personal property. He was a widower, and thereafter, in March, 1882, he was married to Mrs. Bresee, with whom, before his marriage, he entered into an antenuptial contract, in which it was agreed that in lieu of dower and all other claims upon his estate in case she survived him she should have her support upon his farm during her life, and such support was expressly charged upon the farm. At the date of the will, and subsequently to the death of the testator, Elmer lived with him as a member of his family, and at his death was 16 years old. He knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him by poisoning him. He now claims the property, and the sole question for our determination is, can he have it?

    （厄尔法官：1880年8月13日，富朗西斯·帕尔默立下一份遗嘱，遗嘱约定他的两个女儿——里格斯和普瑞斯顿，即该案的原告，只能继承其遗产中很少的一部分；剩余大部分遗产由其孙子——即该案的被告埃尔默·帕尔默继承，但若被告埃尔默· 帕尔默先于祖父富朗西斯·帕尔默死去且未结婚，又不存在其他问题，被告帕尔默的母亲——苏珊·帕尔默必须将遗产转予富朗西斯·帕尔默的两位女儿所有。富朗西斯·帕尔默在立遗嘱时，拥有一座农场和一笔可观的财产，他是一个鳏夫，在1882年3月与伯瑞斯夫人结婚，婚前签署了一份协议，约定一旦伯瑞斯夫人后于富朗西斯·帕尔默去世，则由伯瑞斯夫人照管农场、管理财产直至其去世。被告埃尔默自订立遗嘱时起，一直作为家庭中的一员与富朗西斯·帕尔默一家生活在一起直到其去世，时年埃尔默16岁。被告埃尔默知道遗嘱的内容，推测祖父有可能改变遗嘱，且有迹象表明祖父也正在试图改变遗嘱，为了阻止祖父改变遗嘱，尽快获得遗产，埃尔默毒死了祖父。现被告埃尔默主张获得遗产，需要我们确定的问题是——他能获得遗产吗？）

The defendants say that the testator is dead; that his will was made in due form, and has been admitted to probate; and that therefore it must have effect acording to the letter of the law. It is quite true that statutes regulating the making, proof, and effect of wills and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer. The purpose of those statutes was to enable testators to dispose of their estates to the objects of their county at death, and to carry into effect their final wishes legally ex pressed; and in considering and giving effect to them this purpose must be kept in view. It was the intention of the law-makers that the donees in a will should have the property given to them. But it never could have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it. If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it. It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers. The writers of laws do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is called "rational interpretation"; and Rutherford, in his Institutes, (page 420) says: "Where we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and some times we extend or enlarge his meaning so as to take in more, than his words express." Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view.... Many cases are mentioned where it was held that matters embraced in the general words of statutes nevertheless were not within the statutes, because it could not have been the intention of the law-makers that they should be included. They were taken out of the statutes by an equitable construction; and it is said in Bacon: "By an equitable construction a case not within the letter of a statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the law-makers could not set down every case in express terms. In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question: Did you intend to comprehend this case? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, hut in conformity thereto." 9 Bac. Abr. 248. In some cases the letter of a legislative act is restrained by an equitable construction; in others, it is enlarged; in others, the construction is contrary to the letter.... If the law makers could, as to this case, be consulted, would they say that they intended by their general language that the property of a testator or of an ancestor should pass to one who had taken his life for the express purpose of getting his property? In 1 Bl Comm. 91, the learned author, speaking of the construction of statutes, says: ' If there arise out of them collaterally any absurd consequences manifestly contradictory to common reason, they are with regard to those collateral consequences void. Where some collateral matter arises out of the general words, and happens to be unreasonable, there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to ex pound the statute by equity, and only quoad hoc disregard it;" and he gives as an illustration, if an act of parliament gives a man power to try all causes that arise within his manor of Dale, yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel. There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street. It is commanded in the decalogue that no work shall be done upon the Sabbath, and yet giving the command a rational interpretation founded upon its design the Infallible Judge held that it did not prohibit works of necessity, charity, or benevolence on that day.

（被告辩称，遗嘱人所立遗嘱形式合法且经过公证，现遗嘱人已经去世，根据法律规定遗嘱应当得到执行。依据文义解释，在没有外力影响和左右的情况下，事态按其自然进程发展，不被控制也没有改变的话，那么根据调整遗嘱订立、证明、效力以及财产转移等遗嘱法的规定，把遗产转给谋杀者，这是千真万确的。制定遗嘱法就是为了让遗嘱人，能够处置其去世时依各州规定可继承的遗产，也是为了让遗嘱人最后合法律表达出的意愿产生实际效果，在考虑和判定遗嘱效力时，这些立法目的必须被考量。立法者的目的就是让遗嘱受赠人获得其应该继承的遗产。但受赠人为使遗嘱生效而谋杀遗嘱人，从中获取遗嘱利益，这决不会是立法者的目的。立法者如果能想到这种情况，并认为有必要制定相应的法律规定，那么立法者会毫不犹豫地作出规定。一般说来，立法者的目的就是法律条文字面所表达出的目的；但法律条文所能表达出的目的却不限于法律条文本身，除非严格限定立法者的目的于法律条文之内，这是人们所熟知的一个解释原则。立法者并不总能精确地表达他们的目的，而是有时会超出，有时又受到限制，为此，就需要法官从可能或合理的推断中修正立法者的目的，这被称为“合理性解释”。卢瑟福在其法学著作中曾说（420页），“当我们运用合理性解释时，我们有时会为限制作者的意义表达而对文本作限缩解释，有时会为扩展或增加作者的意义表达而对文本作扩张解释。”所以对制定法的解释应致力于有根据地探寻立法者的目的……很多这样的案例被提及，即虽然事项被包括在法律字面的通常意义之内，但由于不可能是立法者的目的，从而被衡平解释拒之于制定法之外。正如培根所言，“通过衡平解释，一个不包括在制定法字面含义之内的情形有时可能被认定包括在制定法之内，比如为损害提供救济就在制定法之内。这种解释的根据在于，立法者不可能用明确的语言为每个案件立法。为了正确判定当下案件是否在制定法规定之内，你可以假定立法者在场，并向他提出如下问题：你打算怎样处理这一案件？然后站在正直的、理性人的角度给出你自己的答案，这是一个好的方法。如果你感到立法者会包括在内，你就可以确信该案包括在制定法之内，因为你所作的也就是立法者所作的，你没有违反制定法，而是遵循了制定法。根据衡平解释，制定法的字面含义在某些案件中会受到限制；在另外一些案件中可能会扩张，甚至是作出相反地解释……就该案而言，如果咨询立法者，根据语言的通常意义，他们能说遗嘱人或被继承人的财产应该转移给为获得遗产而杀害遗嘱人或被继承人的人的手中吗？布莱克斯通在讲到制定法解释时说，“如果制定法解释产生了与普遍理性相悖的荒谬结论，我们必须考虑这些结论的无效性。如果有些结论溢出语言的通常意义，且是不合理的，那么，法官可以合情理地得出该结论不是议会所预见的，因此，法官享有事后衡平解释制定法的自由，甚至就此而言，法官可以无视制定法”。布莱克斯通举例作了说明：如果议会法案授予法官可以审理发生在其管辖范围内的所有案件，但其中一个案件法官就是案件一方当事人的话，那么就不能对法案作扩张解释，因为任何人都不能作自己案件的法官。还有波罗格纳有一部法案，任何人在大街上流血都将受到严惩，但法案不适用于理发师在大街上割破血管。《圣经》十戒规定安息日不能工作，但万能的法官给出了合理的解释，坚持认为这一天，那些必需的、乐善好施的工作不在禁止之列。）

What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly peaceable, and just devolution of property that they should have operation in favor of one Who murdered his ancestor that he might speedily come into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws. Besides, all laws, as well as all contracts, may  be controlled in their operation and effect by general fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes. They were applied in the decision of the case of Insurance Co. v. Armstrong, 117 U. S. 599, 6 Sup. Ct. Rep. 877. There it was held that the person who procured a policy upon the life of another, payable at his death, and then murdered the assured to make the policy payable, could not recover thereon. Mr. Justice FIELD, writing the opinion, said: "Independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered the assured. It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired." These maxims, without any statute giving them force or operation, frequently control the effect and nullify the language of wills. A will procured by fraud and deception, like any other instrument, may he de creed void, and set aside; and so a particular portion of a will may be excluded from probate, or held in operative, if induced by the fraud or undue influence of the person in whose favor it is.... So a will may contain provisions which are immoral, irreligious, or against public policy, and they will be held void.

（立法者为和平、秩序和公正地转移财产而制定的普遍法律，如果产生赞同或支持人们为快速占有遗产而杀害被继承人的结果，并将其视为立法者的目的，没有比这更为不合理的了，这样的立法目的是不可思议的。因此，我们不能被法律中的一般性语言所困扰。另外，所有法律和合同在其执行和效果上都受普通法所确立的普遍基本原则的规制。诸如任何人都不得通过欺诈行为而获利，不得通过自己的错误行为而获利，不得依据自己的不义行为主张权利，更不得通过犯罪行为而获得财产等，这些原则由公共政策所支配，在所有文明国家普遍性的法律中都有其基础，即使是制定法也不能超越它们。在“保险公司诉阿姆斯特朗案”中这些原则得到体现。该案是说投保人为他人（被保险人）订立了一份死亡保险合同，约定在被保险人死亡时投保人为保险金受益人，投保人为获得保险金而谋杀了被保险人，则投保人不能获得保险金。菲尔德大法官在其撰写的法律意见中说，“无需探寻和证明亨特在订立保险合同时的动机，即使假定其动机是正当和恰当的，但当他为立即获取保险金而谋杀被保险人时，他就丧失了保险合同下的所有权利。如果投保人能够通过杀害被保险人的犯罪行为而获得保险金的话，那么他同样能够通过蓄意烧毁一幢建筑而获得保险金，这将是一个国家法学的耻辱。”这些原则无需制定法赋予其效力或执行力，却能常常规制遗嘱的有效与无效。通过欺诈、欺骗订立的遗嘱，同其他法律文书一样，可以被宣告无效或撤销。如果欺诈或不正当地对遗嘱人施加影响，那么遗嘱的某些内容可能被排除在认证之外或仅是部分地得到执行……所以，遗嘱可能包含不道德、违反宗教或公共政策的内容，这些内容是无效的。）

Here there was no certainty that this murderer would survive the testator, or that the testator would not change his will, and there was no certainty that he would get this property if nature was allowed to take its course. He therefore murdered the testator expressly to vest himself with an estate. Under such circumstances what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime? The will spoke and became operative at the death of the testator. He caused that death, and thus by his crime made it speak and have operation. Shall it speak and operate in his favor? If he had met the testator, and taken his property by force, he would have had no title to it. Shall he acquire title by murdering him? If he had gone to the testator's house, and by force compelled him, or by fraud or undue influence had induced him, to will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet take the property? To answer these questions in the affirmative it seems to me would be a reproach to the jurisprudence of our state, and an offense against public policy. Under the civil law, evolved from the general principles of natural law and justice by many generations of juris consults, philosophers, and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered.... In the Civil Code of Lower Canada the provisions on the subject in the Code Napoleon have been substantially copied. But, so far as I can find, in no country where the common law prevails has it been deemed important to enact a law to provide for such a case. Our revisers and law-makers were familiar with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case, and that a specific enactment for that purpose was not needed. For the same reasons the defendant Palmer cannot take any of this property as heir. Just before the murder he was not an heir, and it was not certain that he ever would be. He might have died before his grandfather, or might have been disinherited by him. He made himself an heir by the murder, and he seeks to take property as the fruit of his crime. What has before been said to him as legatee applies to him with equal force as an heir. He cannot vest himself with title by crime. My view of this case does not inflict upon Elmer any greater or other punishment for his crime than the law specifies. It takes from him no property, but simply holds that he shall not acquire property by his crime, and thus be rewarded for its commission.

（不能确定谋杀者活得比遗嘱人长，也不能确定遗嘱人不改变遗嘱，同样不能确定，即使事态按照其自然进程发展，谋杀者一定会获得遗产。而谋杀者谋杀立遗嘱人，显然是为了获得遗产，在这种情形下，会有法律，人或神灵允许谋杀者获得遗产，享受其犯罪成果吗？遗嘱在遗嘱人死亡时宣读并生效。谋杀者导致了遗嘱人死亡，谋杀者因其犯罪行为而使遗嘱被宣读并生效，遗嘱能够如其所愿地被宣读和生效吗？如果谋杀者与遗嘱人相遇并用暴力夺取其财产，则谋杀着没有权利获得该财产，那么他能通过谋杀行为来获得该权利吗？如果他闯入遗嘱人住宅，并以暴力胁迫遗嘱人，或者通过欺诈、不正当影响诱导遗嘱人，法律也不会认可、支持他。法律怎么会支持谋杀者通过谋杀行为而使遗嘱生效并获得遗产呢？在我看来，对这些问题给出肯定的回答将是我国法学的耻辱，也违背公共政策。由许多法学家、哲学家和政治家所阐述的正义与自然法的一般原则发展而来的民法认为，一个人不能因其谋杀行为而从被继承人或遗嘱人那里获得遗产，加拿大下议院制定的民法典就照抄了拿破仑法典的这项规定。但据我所知，没有一个普通法居于支配地位的国家认为制定法对此作出规定是重要的。立法者和修改者对民法是熟悉的，他们也不认为把该事项写进制定法是重要的，这并不是偶然的疏忽，而是因为人们认为普通法的法律原则足以调整这类案件，没有必要对此作出规定。同理，被告帕尔默不能作为继承人获得遗产，在谋杀之前，他不是继承人，他能否成为继承人也是不确定的。他可能死于祖父之前，也可能被祖父剥夺继承权。他通过谋杀使自己成为继承人，并想通过占有犯罪成果而获得遗产。前面提到的对继承人有效的法律原则同样适用于受赠人，他不能通过犯罪行为而获得遗产。在我看来，这样判决没有给埃尔默的犯罪行为施加比法律规定更多的或额外的惩罚，判决没有剥夺他的任何财产，而只是判定他不能通过犯罪行为而获得财产，这是他因其犯罪行为应得的报应。）

Our attention is called to Owens v. Owens, 100 N. C. 240, 6 S. E. Rep. 794, as a case quite like this. There a wife had been convicted of being an accessory before the fact to the murder of her husband, and it was held that she was nevertheless entitled to dower. I am unwilling to assent to the doctrine of that case. The statutes provide dower for a wife who has the misfortune to survive her husband, and thus lose his support and protection. It is clear beyond their purpose to make provision for a wife who by her own crime makes herself a widow, and willfully and intentionally deprives herself of the support and protection of her husband. As she might have died before him, and thus never have been his widow, she cannot by her crime vest herself with an estate. The principle which lies at the bottom of the maxim volenti non fit injuria should be applied to such a case, and a widow should not, for the purpose of acquiring, as such, property rights, be permitted to allege a widowhood which she has wickedly and intentionally created.

（我们注意到欧文斯诉欧文斯一案与该案类似，妻子作为从犯因协助谋杀丈夫而犯罪，妻子不能因此获得寡妇资格。我很不情愿地赞同该案所揭示出的法律原则。制定法规定妻子不幸失去丈夫，会失去支持和保护，法律因此赋予妻子以寡妇资格。但若妻子通过犯罪行为故意使自己失去丈夫的保护和支持，从而使自己成为寡妇，这明显不符合法律规定的目的。正如妻子可能死在丈夫之前，永远不会成为寡妇一样，妻子不能通过犯罪行为而获得利益。根植于“自愿招致损害者不得主张所受损害”（Volenti non fit injuria）的原则应该适用于该案，妻子以获得财产权利为目的，出于邪恶用心并蓄意造就自己的寡妇资格，不得享有寡妇资格。）

The facts found entitled the plaintiffs to the relief they sought. The error of the referee was in his conclusion of law. Instead of granting a new trial, therefore, I think the proper judgment upon the facts found should be ordered here. The facts have been passed upon twice with the same result,--first upon the trial of Palmer for murder, and then by the referee in this action. We are therefore of opinion that the ends of justice do not require that they should again come in question. The judgment of the general term and that entered upon the report of the referee should therefore be reversed, and judgment should be entered as follows: That Elmer E. Palmer and the administrator be enjoined from using any of the personalty or real estate left by the testator for Elmer's benefit; that the devise and bequest in the will to Elmer be declared ineffective to pass the title to him; that by reason of the crime of murder committed upon the grandfather he is deprived of any interest in the estate left by him; that the plaintiffs are the true owners of the real and personal estate left by the testator, subject to the charge in favor of Elmer's mother and the widow of the testator, under the antenuptial agreement, and that the plaintiffs have costs in all the courts against Elmer.

（已发现的案件事实应当赋予两名原告获得救济的权利。原审法官的错误在于其法律结论。我个人认为，如果能够重新审理此案，正义的法官应当对已发现的案件事实进行梳理。两次判决所认定的案件事实是相同的——即第一次审判帕尔默认定的案件事实和此次审判认定的案件事实。我们坚持认为正义不能要求他们（犯罪嫌疑人）接受两次审判。原审普通法院的判决以及法官的审判报告应当被撤销，作出如下判决：埃尔默·帕尔默和遗产管理人不能动用遗嘱人为埃尔默遗赠的任何财产；遗嘱中赠与埃尔默的动产和不动产不发生有效转移；谋杀者埃尔默因其犯罪行为被剥夺获得遗产的权利；两名原告是遗嘱人动产和不动产的真正继承人，但应由埃尔默的母亲和遗嘱人的遗孀依据婚前协议来照管，埃尔默承担两原告已支付的所有诉讼费。）

All concur, except GRAY, J., who reads dissenting opinion, and DANFORTH, J., concurs.

（除格雷法官提出不同的法律意见，丹佛斯法官支持该法律意见外，其余法官一致同意该判决。）

GRAY, J., (dissenting.) This appeal represents an extraordinary state of facts, and the case, in respect to them, I believe, is without precedent in this state. The respondent, a lad of 16 years of age, being aware of the provisions in his grandfather's will, which constituted him the residuary legatee of the testator's estate, caused his death by poison, in 1882. For this crime he was tried, and was convicted of murder in the second degree, and at the time of the commencement of this action he was serving out his sentence in the state reformatory. This action was brought by two of the children of the testator for the purpose of having those provisions of the will in the respondent's favor canceled and annulled. The appellants' argument for a reversal of the judgment, which dismissed their complaint, is that the respondent unlawfully prevented a revocation of the existing will, or a new will from being made, by his crime; and that he terminated the enjoyment by the testator of his property, and effected his own succession to it, by the same crime. They say that to permit the respondent to take the property willed to him would be to permit him to take advantage of his own wrong. To sustain their position the appellants' counsel has submitted an able and elaborate brief, and, if I believed that the decision of the question could be effected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience .But the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination of this question is confined. The question we are dealing with is whether a testamentary disposition can be altered, or a will revoked, after the testator's death, through an appeal to the courts, when the legislature has by its enactments prescribed exactly when and how wills may be made, altered, and revoked, and apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters. Modern juris prudence, in recognizing the right of the individual, under more or less restrictions, to dispose of his property after his death, subjects it to legislative control, both as to extent and as to mode of exercise. Complete freedom of testamentary disposition of one's property has not been and is not the universal rule, as we see from the provisions of the Napoleonic Code, from the systems of jurisprudence in countries which are modeled upon the Roman law, and from the statutes of many of our states. To the statutory restraints which are imposed upon the disposition of one's property by will are added strict and systematic statutory rules for the execution, alteration, and revocation of the will, which must be, at least substantially, if not exactly, followed to insure validity and performance. The reason for the establishment of such rules, we may naturally assume, consists in the purpose to create those safeguards about these grave and important acts which experience has demonstrated to be the wisest and surest. That freedom which is permitted to be exercised in the testamentary disposition of one's estate by the laws of the state is subject to its being exercised in conformity with the regulations of the statutes. The capacity and the power of the individual to dispose of his property after death, and the mode by which that power can be exercised, are matters of which the legislature has assumed the entire control, and has undertaken to regulate with comprehensive particularity.

（格雷法官：该上诉案揭示出的案件事实是典型的，我相信该上诉案也没有先例可循。被上诉人是一位16岁少年，得知祖父在遗嘱中将大部分剩余遗产指定由被上诉人继承，这导致被上诉人在1882年毒死了遗嘱人。被上诉人因此受到审判，被判构成二级谋杀罪，该上诉案提起时，被上诉人还在州少年犯管教所服刑。该上诉案由遗嘱人的两位女儿提起，要求宣告遗嘱中指定被上诉人继承遗产的条款无效并撤销。上诉人要求撤销原审判决，原审判决驳回了上诉人的诉讼请求，因为在上诉人看来，被上诉人因其犯罪行为不仅非法阻止了现存遗嘱的撤销或新遗嘱的订立，而且也丧失了通过遗嘱继承获得遗产的权利。上诉人认为，如果允许被上诉人获得遗产，就等于承认被上诉人可以通过错误行为而获利。为支持其主张，上诉人律师向法院递交了一宗详实而有力的证明材料，我相信如果考虑衡平的自然法对案件作出判决，我也会毫不犹豫地赞同符合道德良心的观点，但问题是判决不能基于良心而作出。我们必须严格遵循立法者所确立的法律规则，必须在法律规定之内处理这一问题。需要我们处理的问题是：在立法机关已经对何时以及如何订立、修改或撤销遗嘱做出明确规定的情况下，可否在遗嘱人去世后通过诉讼来改变或撤销遗嘱。我个人认为，在严格遵循法律规定的情况下，法院没有根据衡平法理裁判类似案件的自由。现代法学理论认为，在或多或少受到限制的情况下，个人有处置自己死后遗产的自由或权利，当然要遵守立法对遗产范围和遗嘱订立程序的规定。正如我们从拿破仑法典，从依据罗马法原则建立起来的各国法学理论体系，从很多州制定法中所看到的，个人没有处置自己遗产的绝对自由。制定法对通过遗嘱处置遗产有严格而又系统的规定，包括遗嘱的执行、修改和撤销等，即使这些规定不精确，也必须得到严格遵循。之所以确立这些法律规则，目的就是为那些严肃而又重大的行为提供安全保障，这被证明是可靠明智之举。遗嘱人在遵守国家制定法规定的情况下，有处置遗产的自由。个人处置死后遗产的权利和方式，应当符合国家制定法的规定，并受到各种特定条件的限制。）

The appellants' argument is not helped by reference to those rules of the civil law, or to those laws of other governments, by which the heir, or legatee, is excluded from benefit under the testament if he has been convicted of killing, or attempting to kill, the testator. In the absence of such legislation here, the courts are not empowered to institute such a system of remedial justice. The deprivation of the heir of his testamentary succession by the Roman law, when guilty of such a crime, plainly was intended to be in the nature of a punishment imposed upon him. The succession in such a case of guilt, escheated to the exchequer.... I concede that rules of law which annul testamentary provisions made for the benefit of those who have become unworthy of them may be based on principles of equity and of natural justice. It is quite reasonable to suppose that a testator would revoke or alter his will, where his mind has been so angered and changed as to make him unwilling to have his will executed as it stood. But these principles only suggest sufficient reasons for the enactment of laws to meet such cases.

（上诉人主张继承人或受赠人谋杀或试图谋杀遗嘱人不能得到遗嘱中的财产利益，这得不到我国民事法律的支持，也得不到其他国家法律的支持。在立法缺席的情况下，法院没有权利制定修正正义的规则体系。根据罗马法的规定，如果继承人违法犯罪，自然应当受到处罚，并应当返还遗产给国家……我承认基于公平和自然正义，法律应当宣布遗嘱中有关违法犯罪人获得遗产的条款无效。假定遗嘱人非常气愤，不愿再执行原来的遗嘱，而撤销或修改遗嘱，也是合理的。）

The statutes of this state have prescribed various ways in which a will may be altered or revoked; but the very provision defining the modes of alterations and revocation implies a prohibition of alteration or revocation in any other way. The words of the section of the statute are: "No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise," etc. Where, therefore, none of the cases mentioned are met by the facts, and the revocation is not in the way described in the section, the will of the testator is unalterable. I think that a valid will must continue as a will always, unless revoked in the manner provided by the statutes. Mere intention to revoke a will does not have the effect of revocation. The intention to revoke is necessary to constitute the effective revocation of a will, but it must be demonstrated by one of the acts contemplated by the statute. As WOODWORTH, J., said in Dan v. Brown, 4 Cow. 490; "Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of relation." The same learned judge said in that case: The rule is that if the testator lets the will stand until he dies, it is his will; if he does not suffer it to do so, it is not his will.". . . The finding of fact of the referee that presumably the testator would have altered his will had he known of his grandson's murderous intent cannot affect the question. We may concede it to the fullest extent; but still the cardinal objection is undisposed of--that the making and the revocation of a will are purely matters of statutory regulation, by which the court is bound in the determination of questions relating to these acts.

（州的制定法规定了修改或撤销遗嘱的各种情形，对修改或撤销遗嘱方式的规定，同时就意味着禁止在其他任何情况下修改或撤销遗嘱。州的制定法是这样规定的：“除了遗嘱已经写明的，任何遗嘱以及遗嘱中的任何部分，都不得被撤销或修改”等。该案认定的案件事实不能满足要求，撤销遗嘱也不符合法律规定，遗嘱人所立遗嘱不能被该修改。我认为有效遗嘱必须得到继续执行，除非按制定法的规定撤销该遗嘱。仅仅有撤销遗嘱的意图并不能产生撤销遗嘱的结果，撤销遗嘱由意图变为现实，案件事实必须得到求证，必须依据制定法仔细考量。正如沃兹沃思法官在丹恩诉布朗案判决中所言，“撤销行为必须得到某些外在的、可见的相关佐证的证明。”该案同样博学的法官也说：“规则是如果遗嘱人生前不改变遗嘱，那就是他的遗嘱；如果他不愿按遗嘱处理，他会改变遗嘱……”法官假定如果遗嘱人知道孙子有谋害他的企图，会改变遗嘱的案件事实，不会对问题产生任何影响。我们可以最大限度的承认这一点，但客观事实是遗嘱人没有这样做——重新订立或撤销遗嘱，这才是与制定法规定直接相关的，法院必须根据这些案件事实来裁判案件。）

Two cases,--in this state and in Kentucky,--at an early day, seem to me to be much in point. Gains v. Gains, 2 A.K. Marsh 190, was decided by the Kentucky court of appeals in 1820. It was there urged that the testator intended to have destroyed his will, and that he was forcibly prevented from doing so by the defendant in error or devisee; and it was insisted that the will, though not expressly, was thereby virtually, revoked. The court held, as the act concerning wills prescribed that manner in which a will might be revoked, that, as none of the acts evidencing revocation were done, the intention could not be substituted for the act. In that case the will was snatched away, and forcibly retained.  In 854, Surrogate BRADFORD, whose opinions are entitled to the highest consideration, decided the case of Leaycraft v. Simmons, 3 Bradf. Sur. 35. In that case the testator, a man of 89 years of age, desired to make a codicil to his will, in order to enlarge the provisions for his daughter. His son, having custody of the instrument, and the one to be prejudiced by the change, refused to produce the will at the testator's request, for the purpose of alteration. The learned surrogate refers to the provisions of the civil law for such and other cases of unworthy conduct in the heir or legatee, and says: "Our statute has under taken to prescribe the mode in which wills can be revoked eliciting the statutory provision. This is the law by which I am governed in passing upon questions touching the revocation of wills. The whole of this subject is now regulated by statute; and a mere intention to revoke, however well authenticated, or how ever defeated, is not sufficient." And he held that the will must be admitted to probate. I may refer also to a case in the Pennsylvania courts. In that state the statute prescribed the mode for repealing or altering a will, and in Clingan v. Micheltree, 31 Pa. St. 25, the supreme court of the state held, where a will was kept from destruction by the fraud and misrepresentation of the devisee, that to declare it canceled as against the fraudulent party would be to enlarge the statute.

（纽约州和肯塔基州早些时候的两个案件，可以支持我的观点。一个案件是1820年肯塔基州上诉法院判决的盖恩斯诉盖恩斯案，该案说遗嘱人试图撕毁所立遗嘱，但被告或受赠人恶意阻止其撕毁遗嘱，遗嘱最终得到支持，没有被撤销。法院认为遗嘱本身表明遗嘱没有被撤销，也没有相关的证据证明遗嘱已被撤销，意图不能否定事实。另一个是保存并强行扣留遗嘱的案件——立基福特诉希蒙斯案，法官布雷德福的观点（案卷854页）被充分考虑，并决定了该案的判决。遗嘱人是一位89岁的老人，打算在遗嘱中增加分给女儿财产的内容，但遗嘱在其儿子手中，儿子对这一修改抱有成见，不答应遗嘱人的修改要求。博学的布雷德福法官，根据民法对这种或类似的继承人或受赠人行为无效的相关规定说：“我们的制定法对如何撤销遗嘱有相关规定，要撤销遗嘱就应该遵守制定法的规定。该案应该接受制定法的规制，仅有撤销意图，不论多么真实，如何没能实现，都是不充分的。”他坚持认为必须承认公证遗嘱的效力。我还可以引用宾夕法尼亚州法院的一个案例，该州制定法规定了撤销或修改遗嘱的方式，在克林根诉米切尔特里案中，该州最高法院坚持认为，如果遗嘱没有因受赠人的欺诈和不实陈述而改变，仅仅为了反对欺诈一方当事人而撤销遗嘱，这是在扩张制定法。）

I cannot find any support for the argument that the respondent's succession to the property should be avoided because of his criminal act, when the laws are silent. Public policy does not demand it; for the demands of public policy are satisfied by the proper execution of the laws and the punishment of the crime. There has been no convention between the testator and his legatee; nor is there any such contractual element, in such a disposition of property by a testator, as to impose or imply conditions in the legatee. The appellants' argument practically amounts to this: that, as the legatee has been guilty of a crime, by the commission of which he is placed in a position to sooner receive the benefits of the testamentary provision, his rights to the property should he forfeited, and he should be divested of his estate. To allow their argument to prevail would involve the diversion by the court of the testator's estate into the hands of persons whom, possibly enough, for all we know, the testator might not have chosen or desired as its recipients. Practically the court is asked to make another will for the testator. 'The laws do not warrant this judicial action, and mere presumption would not be strong enough to sustain it. But, more than this, to concede the appellants' views would involve the imposition of an additional punishment or penalty upon the respondent. What power or warrant have the courts to add to the respondent's penalties by depriving him of property? The law has punished him for his crime, and we may not say that it was an insufficient punishment. In the trial and punishment of the respondent the law has vindicated itself for the outrage which he committed, and further judicial utterance upon the subject of punishment or deprivation of rights is barred. We may not, in the language of the court in People v. Thornton, 25 Hun. 456, "enhance the pains, penalties, and forfeitures provided by law for the punishment of crime." The judgment should be affirmed, with costs.

    （法律是沉默的，我找不到支持被上诉人因犯罪行为而丧失遗产继承权的任何法律根据。公共政策也不能这样要求，公共政策的要求需要通过恰当执行法律和惩罚犯罪来实现。没有任何惯例可循，遗嘱人和受赠人之间也没有契约，遗嘱人处置遗产时，也没有提出或暗含着对受赠人的条件要求。上诉人的主张实际上是基于如下考虑：作为犯罪人的受赠人，因其是通过犯罪行为而使自己获得遗嘱利益的，则其获得遗产的权利应当被剥夺，不应当获得遗产。如果这样的主张占据主导地位，则处理遗嘱继承案件的法院将会出现分歧。正如我们所知道的，遗嘱人或许不选择或愿意接受这样的结果，上诉人的主张实际上是要求法院另立一份遗嘱。法律不为司法判决提供保证，仅仅是为判决提供支持，不能被充分怀疑。更为重要的是，如果承认上诉人的观点，就会对被上诉人施加额外的惩罚。难道法院能通过剥夺被上诉人的继承权对其施加额外的惩罚吗？法律已对其犯罪行为规定了惩罚，我们不能说惩罚还不够充分。法律已对被上诉人的犯罪行为进行审判并作出惩罚，再对其施加惩罚或剥夺权利都是无根据的。我们或许没有忘记裴颇尔诉桑顿案中法院的判决：“对犯罪施加痛苦、惩罚和没收财产，都必须依据法律的规定。”这付出代价的判决必须得到坚持。）