fraud, or by the violation of a fiduciary relation, or in any other unconscientious manner, so that he may not equitably retain it, a constructive trust will be imposed upon it in favor of one who in good conscience is entitled to it. From what was said in Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540, it appears that this was really the ground upon which Riggs v. Palmer was decided. "The relief which may be obtained against her," says Chief Justice Andrews, “is equitable and injunctive. The court in a proper action will, by forbidding the enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It cannot and will not set aside the will. That is valid; but it will act upon facts arising subsequent to its execution, and deprive her of the use of the property."

The idea also appears in the Canadian case of McKinnon v. Lundy in the Ontario Court of Appeals, where Maclennes, J., said: "One can easily understand that, in the case of a murder committed with the very object of getting the property of the deceased by will or intestacy, the court could defeat that object, even by taking away from the criminal the legal title acquired by such means; and it may be that the court would go further, and take the legal title, even though the crime were committed without that object"-citing Luttrell v. Lord Waltham, cited in 14 Ves. 273, 290, and 2 W. & T. L. Cas. (6th Ed.) 611; Mestaer v. Gillespie, 11 Ves. 639; Story, Eq. Jur. §§ 256, 440. When McKinnon v. Lundy reached the Supreme Court of Canada, the original opinion was reinstated, thus reversing the Ontario Court of Appeals, and holding that the heir forfeited the devise by his crime. The Chief Justice said: "The principle upon which the devisee is held incapable of taking under the will of the person he kills is that no one can take advantage of his own wrong."

The doctrine has been applied under many varying conditions, but always for the purpose of preventing the wrongdoer from profiting by his wrong. The rule that, where the execution of a deed is induced by fraud or force, the legal title passes, but the grantee will be treated as a constructive trustee, is too familiar to require the citation of authorities. A devisee, who by fraud or force prevents the revocation of a will, will be considered a trustee for those who would be entitled to the estate if the will had been revoked. Gains v. Gains, 2 A. K. Marsh. (Ky.) 190, 12 Am. Dec. 375; Brown v. Doane, 86 Ga. 32, 12 S. E. 179, 11 L. R. A. 381, and cases cited in note. Fraud may be practiced in order to prevent, as well as secure, a conveyance, and at law the unexpressed intention of the grantor goes for nothing. But equity will see that the wrongdoer shall not profit by his wrong, and will require him to convey the legal title in such manner as to give effect to the defeated intention of the victim.

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The abolition of the formal distinctions between law and equity have not affected the power of a court of equity in such case. The Legislatures now, as formerly, enact statutes with full knowledge of the fact that the courts of equity still exercise their ordinary powers.

As said in Baart v. Martin, 99 Minn. 211, 108 N. W. 950, 116 Am. St. Rep. 394: "It must be presumed that the Legislature intended and expected that the courts of equity would remain open to parties who were able to bring themselves within the rules which require the granting of equitable relief. The fact that a statute does not expressly provide that fraud shall invalidate acts authorized to be done under it does not deprive the courts of the general power to protect the rights of parties." The fact that this statute does not expressly provide that a wife who murders her husband shall not inherit his estate does not by implication deprive the courts of equity of their ordinary powers to prevent the consummation of wrongs and fraud by acting directly upon and controlling the actions of individuals.

It is a remarkable fact that, while cases like the present were practically unknown in this country until within very recent years, they appear to have been quite common in older civilizations. The manner in which the questions were then disposed of is important only in so far as it confirms the statement of Lord Justice Fry that "no system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person."

By the civil law those who, being capable of succeeding as heirs, rendered themselves unworthy thereof, were excluded from the succession. The causes which might thus render the heir unworthy were not limited to such as were expressly stated in the laws. They were, in fact, quite indefinite. "If there should happen," says Domat, "any other case where good morals and equity should require that an heir should be declared unworthy, it would be just to deprive him of the inheritance." Civil Law, Domat, part 2, bk. 1, t. 1, § 3; Mackelday, Roman Law, p. 550. In bringing about this result the civil law proceeded upon what were substantially the same principles which we have found applicable under our system of equity jurisprudence. It did not regard the will as revoked or the heir disinherited by the crime. The naked legal title to the property passed to the criminal, but was thereafter taken from him. It was a case of restitution, not of revocation. Winscheid, Pandekten, 111, § 669, and note 1; lex 7, § 4, D. de bonis damnatorum (48, 20); D. 34, 9, de his quæ ut dignis auferuntur; Maynz, Cours, v. 111, § 482; 8 Harv. Law Rep. p. 170. Under the Code Napoleon (section 727) a person who is condemned for having caused or having attempted to cause the death of the testator, or, being informed of his murder, does not divulge it to the officers of the law, is excluded from the succession. A similar provision is found in Quebec Code, §§ 610, 893. Demolembe, Suc. vol. 1, No. 217 et seq.

The invocation on Mrs. Tanke's behalf of the constitutional provision that no conviction shall work corruption of blood or forfeiture of estate rests upon a misapprehension of the scope and purpose of that provision. It found its way into the federal Constitution in connec

tion with the punishment for treason. It was adopted in the constitutional convention with little discussion as a precautionary measure suggested by the history of the English law of treason. An early act of Congress (section 24, c. 36, Acts 1790) made the prohibition general by providing that "no conviction nor judgment for any capital crime shall work corruption of blood or forfeiture of estate." Similar provisions are found in the Constitutions of several states. Stimson, Federal & State Constitutions, p. 182, note 6. By the common law a person convicted of a felony was by operation of law placed in a state of attainder, which resulted in forfeiture of estate, corruption of blood, and civil death. This result followed, not from the commission of the crime, but as a result of the conviction thereof. The attainted person was not divested of his land until after office found. So, in the case of goods and chattels, forfeiture had relation only to the time of conviction, and after the commission of a felony and before conviction the guilty party could make a valid sale or assignment of his personal property. 1 Blk. Com. 132; 1 Chit. Crim. L. 733; Co. Litt. § 199; Nichols v. Nichols, Plowden, 477-486; Hawkins, P. C. bk. 3, c. 49, §§ 13, 30; Perkins v. Brady, 1 Hare, 219.

These provisions abolish the common-law rule by which corruption of blood and forfeiture of estate resulted from the conviction of a felony. Corruption of blood rendered the felon incapable of inheriting or of transmitting property by inheritance. Forfeiture of estate transferred his property to the state. The heirs were thus deprived of their inheritance and the treasury enriched, and it was to prevent the manifest wrong and injustice to innocent persons which resulted from this. doctrine that these constitutional provisions were adopted. As said in Wallach v. Van Riswick, 92 U. S. 202, 23 L. Ed. 473: "No one ever doubted that it was a provision intended for the benefit of the children and the heirs alone-a declaration that the children should not bear the iniquities of the fathers." It cannot apply to a case, such as the present, where the heir is the wrongdoer and is claiming the inheritance as the result of her own wrong. If an attempt was being made to corrupt the blood of Mrs. Tanke, thus preventing her from transmitting her estate to her children and forfeiting it to the state, we would have a case within the constitutional prohibition.

The decree of the probate court assigned the land in question to Mrs. Wellner, and the prevailing opinion is to the effect that this decree is final and conclusive as to her right to the land. It is, of course, settled that the probate courts of this state are vested by the Constitution with exclusive jurisdiction over the estates of deceased persons, and their final decrees assigning the residue of an estate of a decedent, pursuant to Rev. Laws 1905, § 3790, conclude all parties in interest as to everything properly determined by the decree. Greenwood v. Murray, 26 Minn. 259, 2 N. W. 945; Appleby v. Watkins, 95 Minn. 455, 104 N. W. 301, and other cases therein cited. But such a decree is final and conclusive only as to matters within the jurisdiction of the

court, which were or might properly have been determined by the court in the course of the administration of the estate.

The probate court found that Wellner died seised of the lands in question, that the woman who is now known as Mrs. Tanke was the surviving spouse, and assigned the land in question to her. Upon all of these facts the decree, not having been appealed from, is now conclusive. But the title to the real estate did not vest in the widow by virtue of the decree of the probate court. It was required to determine who were the heirs of the deceased; that is, to ascertain and adjudge the fact of the identity of "the person or persons upon whom the law casts the estate in lands, tenements, and hereditaments immediately upon the death of the ancestor." 2 Blk. 201; 21 Cyc. 413. It decreed that a certain person was the surviving spouse and one of the heirs—that is, one of the persons referred to in the statute; and its determination of her heirship is conclusive. Fitzpatrick v. Simonson Mfg. Co., 86 Minn. 147, 90 N. W. 378. It can no longer be questioned that this woman was the widow of John Wellner.

But the legal title to the real estate had vested in the heirs before this decree was entered. It was neither created, strengthened, nor perfected by the decree. The common-law rule with reference to the descent of the real estate of a deceased person prevails in this state, subject to modifications designed to subject such real estate, when necessary, to the payment of debts, devises, and expenses of administration. In this respect we maintain the old distinction between real and personal property. *

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It follows that upon the death of Wellner the title to his real estate passed to his heir; but Mrs. Wellner took the title subject to whatever defects existed therein, and subject to such limitations thereon as grew out of the fraudulent and criminal methods by which it was acquired.

In my judgment the widow acquired the naked legal title to this. real estate, subject to the power of a court of equity to deprive her of its beneficial use and require its conveyance as justice and equity demand. The administrator never took possession. The land was not required for purposes of administration. The effect of the decree, as said by Chief Justice Gilfillan, was "to discharge the land from the administration." The decree in no way affected the character of Mrs. Wellner's title to the land. She held it after as before the decree with all its deficiencies, and a court of equity might still deprive her of its beneficial use and require her to convey the title to her children. I therefore respectfully dissent.

JAGGARD, J., concurs with ELLIOTT, J.14

14 On homicide as affecting the devolution of property, see 36 Am. Law Reg. (N. S.) 225; 3 L. R. A. (N. S.) 726, note. Those courts that allow the murderer to take title do so, it would seem, in order that innocent purchasers for value from him may be protected.. But that is no reason for refusing to make him or his grantee with knowledge a trustee ex maleficio.

SECTION 6.-PERSONS CIVILLY DEAD

AVERY v. EVERETT.

(Court of Appeals of New York, 1888. 110 N. Y. 317, 18 N. E. 148, 1 L. R. A 264, 6 Am. St. Rep. 368.)

ANDREWS, J.15 We concur in the conclusion of the courts below that by the true construction of the will of John H. Southwick his son, Charles H. Southwick, took upon the testator's death a vested remainder in fee, limited upon the life estate of his mother in the premises in question, subject, however, to be defeated by a condition subsequent, viz., his death without children, in which event the substituted remainder given on that contingency to Augustus Southwick, the son of the testator's brother, Nathan, would vest in possession, thereby displacing the prior fee given to the testator's son, Charles. Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. 247, 57 Am. Rep. 701; In re Railroad Co., 105 N. Y. 89, 11 N. E. 492, 59 Am. Rep. 478. The plaintiff claims under the devise to Augustus Southwick.

The widow of the testator died September 1, 1869, after the death of her husband. Charles H. Southwick is still living, unmarried, and without children. If nothing further appeared, the plaintiff's action would necessarily fail, for the reason that the contingency had not happened upon which the estate of Augustus Southwick is limited, and the defendant, George Everett, who is the lessee of Charles H. Southwick, would be entitled to judgment. The plaintiff, to obviate this apparent difficulty, proved that Charles H. Southwick, in October, 1875, was convicted of the crime of murder in the second degree, and was thereupon sentenced to imprisonment in the state prison at Auburn for the term of his natural life, and from that time has been imprisoned pursuant to such sentence. The plaintiff contends that as the life-estate of the widow was terminated by her death, and as Charles H., on his sentence to imprisonment for life, became civilly. dead, the contingent estate given by the will to Augustus Southwick in case "Charles H. should die without children," has become an actual fee.

The Revised Statutes declare that a person sentenced to imprisonment for life "shall thereafter be deemed civilly dead." 2 Rev. St. p. 701, § 20. *

To ascertain the meaning of the phrase "civil death," as used in the Revised Statutes, and whether the statute on a sentence of an offender to imprisonment for life operates eo instanti to divest him of his es

15 The statement of facts, part of the majority opinion, and all of the dissenting opinion of Earl, J., are omitted.