In re Fleming

In deference to the earnest and persuasive appeal of counsel for the petitioner, the disposition of this matter has been delayed until opportunity was afforded for a thorough examination of the argument submitted in support of the application. Such examination has been made, and, upon due research and reflection, I reach the conclusion to adopt the order intimated by the learned referee in his opinion. It is impossible to distinguish the case, in principle; from the reason of the decision in Riggs v. Palmer, 115 N. Y. 506 , 22 N. E. 188 , namely, that “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.” The petitioner is indicted for the murder of her mother, upon the termination of whose life the petitioner was to have the property in question. By the murder of her mother, if so it be, the petitioner at once secured property, which she would have lost, had the life tenant survived her, and accelerated the possession and enjoyment of that property. It is insisted that the case is discriminated from Riggs v. Palmer by the circumstance that Palmer had been convicted of the murder, whereas the petitioner is only indicted. But the difference is of no significance. In a civil action, involving an issue of fact between private parties, the determination of that fact in a criminal prosecution by the people is not even evidence, much less a conclusive adjudication, of the fact. Hence the conviction of the petitioner on trial of the indictment for the murder of her mother would not be legal proof of the fact of the murder in this proceeding, and between these litigants. 1 Whart. Ev. § 776; Wells, Res Adj. § 420. In Riggs v. Palmer, although the defendant had been convicted of the murder, the issue of fact whether he committed the murder was tried over again before the referee, and was determined upon the proofs then produced. The essential' and the decisive fact in- the case, shown by the indictment, is that the petitioner is charged with the criminal destruction of the life, the expiration of which was the indispensable condition of her right to the possession and enjoyment of the fund in controversy. Livingston v. Tucker, 107 N. Y. 549 , 550, 14 N. E. 443 . If she murdered her mother, she is not entitled to the possession arid enjoyment of that fund. If she be innocent of the murder, she is entitled to such possession and enjoyment. Her right, therefore, cannot be adjudged until the determination of this issue of fact. The referee finds that -the legal title to the fund is in the petitioner, but this alone gives her no indefeasible right to the possession and enjoyment of it. In Ellerson v. Westcott, 148 N. Y. 149 , 153, 42 N. E. 540 , the allegation sought to be introduced into the pleading was that “the defendant had caused the death of the testator, to enable her to come into possession of the estate devised to her.” Assuming the fact, the court, per Andrews, C. J., speaking of its effect, said “that a court of

Application denied, with leave, however, to renew when the indictment is disposed of. No costs.