his determination to become perfectly familiar with law as a science, to understand its philosophy, or in other words, to establish his legal education on a solid elementary foundation. The erudition and brilliant, may we not say illustrious career of the future lawyer and orator, was the reward of the devoted student and the vigils of the unwearied scholar. He was called to the bar and commenced his practice at Dublin in 1790.

He found a congenial opening for his talents and learning in the place made vacant by the death of his brother, and from the beginning his professional success was assured. He first distinguished himself in the great and singular case of James Napper Tandy v. The Viceroy, the Earl of Westmoreland. He appeared for the plaintiff, for whom he displayed powers of legal oratory that raised him to a place at the bar with John Philpot Curran and Henry Grattan. Emmet's alternation from severe logic to an imaginative glow, was such as indicated a happy combination of intellectual powers.

He was born with an instinctive love of freedom, and educated to the belief that freedom is the natural, indefeasible right of intelligent beings. This to him was a grand instinctive truth, to deny which would have been to deny that he himself existed. This intensified his devotion to the green island of his birth, and his hatred of her oppressors. Thus were combined in him the characteristics inherent in the Emmet family, characteristics which have in all ages given to religion her martyrs, and to patriotism her self-sacrificing

heroes.

Emmet's relations with Curran were intimate and pleasing. When he heard the great orator and patriot "pour out his invectives like streams of molten lava" against his country's oppressors; when he saw him inflame the minds of his countrymen, almost to madness at her wrongs, Curran became to him the Demosthenes of Ireland.

When he first read Lord Byron's description of Curran, he said to DeWitt Clinton to whom he was through all his life in America warmly attached: "When Curran and Byron met two great minds came together, in some sense, similar. You are no poet, Mr. Clinton, but hear what the greatest of English poets says of a great Irish lawyer, Curran.' 'Curran's the man who struck me most. Such imagination and such reasoning powers. There never was any thing like them that I ever saw or heard of. His published life, his published speeches, give you no idea of the man, not at all.

The power of Curran's imagination and wit was exhaustless. I saw him presented to Madam de Stael, at Mackintoshe's; it was the grand confluence between the Rhone and the Sanoe, and they were both so d-d homely that I could not help wondering how the best intellects of France and Ireland could have taken up respectively, such ill-looking residences.'

"But" continued Emmet, "Curran was not homely. He was short of stature with a swarthy complexion, and eyes that glowed like a live coal. His countenance was singularly expressive. When he stood before a jury he not only read their own hearts, but he gave them back his own."

He was an elder brother of Robert Emmet, whose enthusiastic patriotism urged him to a hopeless struggle for the freedom of his country, which enrolled his name among her patriot martyrs.

The cause of Ireland's freedom called forth the warmest aspirations of the hearts of Thomas Addis and Robert Emmet, with a steadiness and devotion that knew neither abatement nor variableness. It was a devotion that sent one to the scaffold, the other to perpetual exile.

At that period in the professional career of Thomas

Addis Emmet, "when wealth and fame were attending him at the bar, and the highest seat of office and honor were not beyond his capacity and his aspirations, the gloom that overclouded his country - her long past sufferings- the cheerless prospect before her, engrossed the constant thought of all her patriots. The French revolution had rent asunder the political relations of ages, and annihilated ancient institutious. It was hailed in Ireland as the day spring of hope and freedom diffusing over it an enthusiastic expectation of deliverance. The keen hostility between France and England induced the former to cast her eyes on Ireland. The result was the famous uprising. "In 1795, the societies of United Irishmen reached all ranks of people, Protestants and Catholics - all religious sects forgot their prejudices and rallied under one common standard, the standard of the nation. The freedom of Ireland, her honor, her glory, her prosperity, claimed all their hopes, thoughts and devotions."

Emmet became a member of the order of United Irishmen, under circumstances that singularly exhibited his heroic devotion to his country. A brother member of the order had been convicted of administering its oath, which was a capital offense. Emmet moved in arrest of judgment in the presence of an immeuse audience, and which British soldiers were stationed to preserve order. After he had closed an argument of surpassing power, boldness and eloquence, in which he insisted that the oath was not a criminal offense, he paused a moment, and then in that impressive manner he could assume so well, continued: And now, my lords, I have a few words to say for myself. My lords, here in the presence of this venerable court, this crowded auditory, in the presence of Almighty God, who sees and witnesses, and directs this tribunal, here my lords, I, Thomas Addis Emmet, take the oath of the United Irishmen, for administering which my client has been convicted of a capital crime." He then took up the Bible that lay on the table before him, kissed it, and solemnly repeated the test oath of his order and took his seat. Never before was there such a scene in a court-room. Amazement seized the judges, and the ministerial officers in the court seemed paralyzed. Presently Emmet arose and left the court-room undisturbed. It had been expected that the prisoner would receive the sentence of death, which the law prescribed for his crime, but a light fine only was imposed, which was instantly paid and he was discharged.

A few weeks later Emmet was arrested for high treason, and his career in Ireland ended forever. After a brief incarceration in Dublin, he was removed to Fort George, a gloomy fortress in Scotland, where he remained a prisoner three years. Through the influence of friends his family was allowed to be with him. At length he was released under the condition that he leave the British dominion forever.

Thus we have briefly traced the career of Thomas Addis Emmet in his native country. Let us follow the exile to his home in America.

In the year 1804 he sailed for the city of New York. His devotion to his country, the suffering that devotion had caused, his fame as a lawyer, orator and scholar had preceded him, and his reception in the metropolis was an ovation. De Witt Clinton, chen mayor of the city, in an eloquent address welcomed him to his adopted home, and its most distinguished citizens joined their illustrious mayor in receiving the exiled patriot to their city.

He very soon applied for admisson to the bar of the State of New York. After a singular and somewhat bitter opposition from three or four of its leading members, he was called to that bar upon which he was destined to reflect fadeless honor. He came to it at &

peculiarly fortunate period in its history for him. Hamilton, its great and brilliant leader, had just fallen on the heights of Weehawken, Aaron Burr, the equal of Hamilton at the bar, proscribed and branded for the result of the fatal duel with Hamilton, was no longer in practice, and thus the way was opened which placed Mr. Emmet at the head of the American bar.

It is not our purpose to attempt any particular description of his professional life in our country. Suffice it to say, that he soon became the peer of Webster, Wirt, Pinkney, Randolph, Hoffman, Henry and Spencer, at the bar.

In the argument of the great case of Gibbons v. Ogden, 9 Wheaton, 2, before the United States Supreme Court, Emmet, associated with Thomas J. Oakley, was the opponent of Daniel Webster and William Wirt, then attorney-general under President Mouroe. The case attracted the earnest attention of the entire republic, and the arguments before the court were unsurpassed in learning, forensic logic and eloquence. Emmet's argument drew from Webster the remark, that "the erudition, talents and eloquence of the Irish bar, had made its appearance in America in the person of Thomas Addis Emmet."

Wirt, speaking of the approaching argument in this case in a letter to Judge Carr, said: "To-morrow week will come on the great steamboat question from New York, Emmet and Oakley on one side, Webster and myself on the other. Come down and hear it. Emmet's whole soul is in the cause, and he will stretch all his great powers. Oakley is said to be one of the first logicians of the age, as much a Phocion as Emmet is a Themistocles; and Webster is as ambitious as Cæsar."

The case in brief was as follows: "The Legislature of New York had granted to Robert Fulton and Robert R. Livingston, for a term of years, the exclusive right to navigate the waters of that State with boats moved by steam. From them Ogden derived the right to use such boats in the waters between Elizabethtown, New Jersey, and the city of New York. Gibbons put two steamboats on that route, claiming that he had a right to do so, inasmuch as his boats were regularly licensed under the laws of Congress. The rights of the parties were litigated in the courts of New York, and both the Court of Chancery and the Court of Errors sustained the validity of the State laws. Gibbons brought his case before the Supreme Court of the United States. The proposition of his counsel was that Congress has the exclusive authority to regulate commerce in all its forms on all the navigable waters of the United States, their buoys, rivers and harbors, without any monopoly, restraint or interference, created by State legislation."

The opinion of the court by Chief Justice Marshall decided that the acts of New York were in collision with the acts of Congress, under which Gibbons derived his license, etc.

Emmet was defeated, but his defeat was a triumphant exhibition of his legal genius and learning.

Emmet and Pinkney first met as opposing counsel in the celebrated case of The Nereide, 9 Cranch, 588, argued in the United States Supreme Court March, 1815. During the argument an event of thrilling interest occurred, memorable to both lawyers, the court, bar, and vast audience who witnessed it. But before relating it we shall give a brief sketch of Mr. Pinkney.

He was born at Annapolis, Maryland, May 6, 1764. His father was an English gentleman of fortune, a ripe, accomplished scholar, and a citizen of the highest standing. His hopes and ambition in life were centered on William, his only child, whose future career exceeded his most ambitious hopes.

After attaining a thorough education in the best institutions of learning of the times he began the study

of law with Samuel Chase, one of the signers of the Declaration of Independence. In 1796 he was appointed an associate judge of the United States Supreme Court. Pinkney remained with his accomplished preceptor and friend until 1786, when he was called to the bar.

Notwithstanding the high character of Judge Chase as a lawyer, scholar and patriot, his want of urbanity, patience, his irascibility, want of dignity and judicial fairness rendered him a failure as a judge. Frequently he exhibited, on the bench, the characteristics of a judicial ruffian.

It is related that on one occasion, a lawyer of respectability, of the name of Leake, whose prolix, extended arguments and multiplicity of authorities often severely taxed the patience of the court, appeared before Judge Chase with an immense collection of law books. As he was preparing them for reference in his argument, a threatening frown lowered over the face of the judge, indicating the coming storm. At length, pointing his finger ominously at the ponderous pile of books, he began the following dialogue:

Judge Chase-"What have you got there, sir?"
Leake" My books, sir."

Judge Chase-"What do you propose to do with them,

sir?"

Leake-"They are the authorities I propose to cite."
Judge Chase "To whom, sir?”
Leake-"To your honor."

Judge Chase-"I'll be d-d if you do, sir. Send for a
cart and oxen and take them home, sir.”

Such was Chase's conduct on the trial of Fries for treason, where he presided, that he was impeached before the Senate of United States, but was finally acquitted.

It is believed that the impatience and want of courtesy that Pinkney sometimes exhibited at the bar was the result of his relations with Judge Chase.

At the age of twenty-four he took his degree as a counsellor at law. So rapidly did he rise to distinotion, that in 1796, at the age of thirty-two, he was appointed with Mr. Trumbell, a commissioner to Great Britain by Washington under the seventh article of Jay's treaty. His written opinions on questions growing out of that memorable treaty attracted general attention in Europe and America; it established his fame as an international lawyer. In April, 1806, he was reappointed minister to Great Britain jointly with James Monroe, In this capacity he won the esteem and confidence of Mr. Monroe, which continued through life. After a few months, the latter, fully satisfied that Pinkney's ability enabled him to successfuly cope with all the great and delicate questions then being agitated between England and the United States, returned home, leaving him as their sole negotiator. It was not until 1811 that he closed his duties as minister to the court of St. James.

James Madison was the president, and he appointed Mr. Pinkney attorney-general of the nation very soon after his return from England. At the close of Mr. Madison's administration, Pinkney returned to the practice of his profession, which was mostly confined to the Federal courts. The variety and extent of his learning as a lawyer gave him a place in the front rank of his profession. In conducting his legal arguments he exhibited rare stores of illustration, ornament and ingenious allusion, and if occasion required, and in those days it often did, he intermingled finely chastened imagination with sallies of spontaneous wit. But as was said of Gouverneur Morris, whom he resembled in many of his characteristics, Pinkney did not bear his fine faculties meekly. He often offended by a dogmatism which he never could correct. He had little grace of conciliation. With undoubting confl dence in his own convictions, he had little respect for those of others.

Mr. Webster, whose opinion of public men were regarded as exceedingly correct and generous, once said of Mr. Pinkuey that "he was the leader of the American bar. He was regarded as such at Washington when I was admitted to practice there. Although he was a lawyer of extraordinary accomplishments and power, he had some very singular characteristics. He often did things that one would hardly think it possible a gentleman of his high breeding, cultivation and great weight of character would do. He was a very vain man. He was vain of his vanity." Webster once described an insult he received from Pinkney during the argument of a case before Chief Justice Marshall at Washington. "He pooh-poohed at several of my propositions in the most contemptuous manner," said Webster, "as much as to say it is not while to argue points I did not know any thing about; that I was no lawyer, and he spoke about the gentleman from New Hampshire. Everybody in the court-room observed it. Chief Justice Marshall was pained at it. It was very hard for me to retain my temper, but knowing in what presence I stood, I did so, and Mr. Mr. Pinkney construed my apparent humility into a want of spirit."

When court adjourned, however, Webster invited him into a room in the Capitol, locked the door and put the key in his pocket. The result of the interview in that room may be inferred from the fact that the next morning Mr. Pinkney appeared in court and tendered a very courteous apology to Mr. Webster, and ever after that they remained warm and devoted friends.

By a mysterious intervention of providence Emmet and Pinkney, in the presence of Webster, fell in the legal arena with their armors on — - chieftains in the conflict - one at the New York, the other at the Boston bar.

A complaint alleged that certain lands were devised to plaintiff's father, with a limitation over in case of his death without issue, and that plaintiff's father conveyed the same to defendant, who has since been in occupation; that after the conveyance, defendant went to another town to see plaintiff's mother, who was at the time unmarried, for the purpose of inducing a marriage between her and plaintiff's father, also unmarried at that time: that in order to effect such marriage, and referring to said lands, defendant falsely and fraudulently represented to plaintiff's mother that plaintiff's father had a fine property so left to him that if he married and had an heir, the land would go to the heir; that through these representations plaintiff's father and mother were married, and that plaintiff was afterward born to the marriage, and is its only issue. Held, that the facts alleged in the complaint constituted a fraud upon plaintiff's mother, upon which plaintiff had a right of action; and that defendant could be held to the character of trustee ex maleficio in plaintiff's favor, and as such was bound to make good to her his representations.

HE opinion states the case.

THE

C. D. Adams, for appellant.

A. M. Beardsley, for respondent.

PECKHAM, J. This case comes here upon a demurrer to the plaintiff's complaint as not stating facts sufficient to constitute a cause of action. The Special Term overruled the demurrer, and granted the defendant leave to answer upon payment of costs. This privilege the defendant refused to avail himself of, and final judgment was duly entered against him. He appealed therefrom to the General Term, where the judgment was affirmed, with costs, and leave was again granted him to answer on payment of costs, and again the privilege was refused, when final judgment of affirmance being entered, the defendant appealed to this court.

The complaint develops a curious state of facts. Its material averments are as follows: The plaintiff resides in the city of Utica, and the defendant in Herkimer county. In 1842, one Andrew Piper died a resident of that county, leaving a will which was duly proved, and by which he left all his property, including the farm in question, to his two sons James and Frederick, and subject to the limitation, in the case of Frederick, that if he should die without issue, the portion of the estate devised to him should belong, and was thereby devised, to the brother James and his heirs. James and Frederick took possession of the farm (which consisted of 140 acres in Herkimer county), and continued to own it together until March 26, 1859, when Frederick conveyed his interest therein to defendant, who had, prior to 1859, married a niece of Frederick. In 1875, Frederick died. After defendant had procured a deed of his interest from Frederick in the farm above mentioned, the defendant went to Utica to see one Catharine Hagel, for the purpose of bringing about a marriage between her and Frederick, and thus procuring an heir to him, and defendant persuaded Catharine to go and see Frederick; defendaut paying the expenses of the trip. In order to persuade Catharine to marry Frederick, and in the course of his efforts in that direction, and referring to the interest of Frederick in the farm, the defendant falsely and fraudulently represented to her that Frederick had a fine property so left to him, that if he married and had an heir, the land would go to the heir. That induced by such statements and representations made to her by the defendant, Catharine did marry Frederick on the 11th day of April, 1859; the result of which marriage was the birth of the plaintiff within a year thereafter, and she is the only child of such marriage. In September, 1859, the farm was duly partitioned between James Piper and the defendant, as the grantee of Frederick, by an interchange of deeds conveying the respective parts, and the defendant since such conveyance has occupied the part set off to him as the owner thereof; and still occupies and claims to own it.

The relief prayed for was that plaintiff be declared the owner of the portion of the farm set off by partition to the defendant, and that plaintiff be placed in possession of the same. The judgments appealed from grant such relief, and defendant asks for their reversal, while admitting the facts above stated. There was no opinion written by the learned judges at the Special or General Term, and we have not the benefit of their views upon this question.

The defendant, while confessing that he procured the fee of the farm (through this marriage) owned by the plaintiff's father by means of his own frauduleut representations, yet claims that the plaintiff has no right of action against him on that account, because there is a lack of privity between him and the plaintiff, or that plaintiff was not induced to any action by reason of his fraud, and sustained no legal damage therefrom, and cannot therefore recover any from him, but must sit by and permit the land once owned

by her father to be enjoyed by defendaif, although procured by him by means of this fraud.

If to assume jurisdiction and grant relief in such a case would be to run counter to well-settled rules of equity, that fact would be a sufficient answer to the plaintiff's prayer for judgment herein. But if the most that can be said is that the case is novel, and is not brought plainly within the limits of some adjudged case, we think such fact not enough to call for a reversal of this judgment. The spectacle of an individual enjoying property acquired by means of an admitted fraud is not one which appeals with any great force to the sympathies of a court in a civilized land in behalf of the perpetrator of the fraud. Such fraud is not in the least mitigated in its character by the statement that it consisted of fraudulent representatious made to a woman to induce her to consent to a marriage in which the mercenary motive was the strong, if not the only one. The fact that she was ready and desirous of bettering her condition, even though it was by a mercenary marriage, does not alter the other fact that the defendant enjoys property which he has acquired by the successful perpetration of a fraud, and which if the fraudulent representatations by which he acquired it had been true, the plaintiff herein would be herself entitled to enjoy as

owner.

Marriage has its sentimental and its business sides. Courts have very little to do with the former. The whole law of marriage as administered by courts (so far as property interests are concerned) is founded upon business principles, in which the utmost good faith is required from all parties, and the least fraud in regard thereto is the subject of judicial cognizance. To say of plaintiff's mother therefore that she was too ready to marry a man because of the money he had, or would necessarily leave to a child of the marriage, or that she was an adventuress induced to marry solely by fraudulent representations as to the pecuniary condition of her husband, does not, as I have said, furuish the least reason for refusing relief to plaintiff if she be otherwise entitled to it. If her mother had not been induced to marry by any such pecuniary considerations, clearly no cause of action would exist. It is because such considerations were the moving ones, and were induced by the fraud of defendant, that the plaintiff claims her right of action. There are some anomalies in the law relative to contracts or negotiations having marriage for their consideration, and they are based upon considerations which obtain in no other contract. The family relations, and their regulations, are so much a matter of public policy that the law in relation to them is based on principles not applicable in other cases; and all business negotiations having marriage for their end are regarded in much the same light by our courts. Thus a particeps criminis in the fraud has been permitted to recover in his own name against one who was no more guilty than he, when the marriage had taken place by reason of such fraud.

In Neville v. Wilkinson, 1 Browne Ch. 543 (decided in 1782), the plaintiff was the individual who desired to marry his co-plaintiff's daughter, and he and the defendant, who was an attorney to whom he owed a large amount of money, agreed that defendant should represent to the father that the debt was much less than in truth it was. He did so. and after marriage he brought an action on a bond which would have made the debt in excess of the amount represented, and the plaintiff the particeps criminis, was permitted to succeed in an action brought by him and his father-in-law to compel the surrender of the bond. The case is not cited as analogous to the one under discussion, but as proof of the statement that there

are anomalies in this branch of the law. The reason has been already stated.

In Roberts v. Roberts, 3 P. Wms. 66 (decided in 1730), A. had treated for the marriage of his own son, and in the settlement on the son a power was reserved to the father to jointure any wife whom he should marry in £200 per annum, in which case he was to pay the sou £1,000. The father subsequently desired to marry a second time, and the son agreed with the second wife's relatious to release the £1,000, and did release it, but took a private bond back from the father for its payment. It was held that equity would not set aside the private bond, because it would be injurious to the son's wife, whose marriage had taken place prior to the second one of the father, and being prior in point of time, its equity must prevail. The master of the rolls said that the same arguments advanced to show the bond should be discharged as an injustice to the second wife, showed it should be paid, or equal injustice would occur to the son's wife, and the maxim, qui prior est in tempore, etc., should prevaii. He also said that equity abhors all underhanded agreements in cases of marriage," and perhaps this may be the only instance in equity where a person, though particeps criminis, shall yet be allowed to avoid his own acts." Many other cases of a similar nature might be cited.

Although these are instances of fraud arising in relation to marriage settlements, it is not perceived why courts may not go a step in another direction, and permit a recovery on the part of a person situated like the plaintiff. The anomaly would be no greater in this case than in the others, and a man holding property through fraud would be compelled to give it up to the person who would be entitled to it if he had spoken the truth.

Under marriage settlements, it is held the issue take their interest therein as purchasers under both parents, and hence may compel the payment into the fund by the promisors on the part of the wife, although those on the part of the husband had failed to pay in what they promised, because non-performance on one part shall be no impediment to the children's receiving the full benefit of the settlement. See Harvey v. Ashley, 3 Atk. 607, 611. The action is sustained on the ground that the settlement was something in which the children were interested, and were privy to the party promising. Is there not sufficient privity in such a case as this between the defendant and the issue of the marriage induced by this fraud, where the fraud consists of false and fraudulent representations made by him to the mother, which if true would entitle the issue to the ownership of the very property which he holds by virtue of such fraud? We think these facts create sufficient privity between the parties to sustain such an action as this.

It is true, the plaintiff was not born when the fraudulent representations were made. Still they were made by the defendant to plaintiff's mother for the purpose of inducing a marriage between her parents, and if they had been true, the plaintiff would have been the owner of this particular property. In this way she is the very person injured by the fraud, and although not individually in the mind of defendant when he perpetrated that fraud, yet as filling the position of heir to her father, she belongs to the class which defendant had in contemplation when he represented to the mother that the heir of Federick would have the farm. In this way it may be claimed that defendant had in view the plaintiff, and the rights he alleged she would have. Why should not the plaintiff be permitted to hold the defendant to his representations?

The English courts have held that a person who by

acts or speech represents property as belonging to the proposed husband, when the possession thereof forms an inducement to the marriage, shall be bound to make good the thing in the manner represented. Such is the case of Montefiori v. Montefiori, 1 W. Bl. 303 (Eastern term 1762, Mansfield, C.J.). The facts of the case were these: "Montefiori being engaged in a marriage treaty, his brother Moses, to assist him in his designs, and represent him as a man of fortune, gave him a note for a large sum of money as the balance of accounts between him and his brother Joseph, which balance he acknowledged to have in his hands, though in truth none existed. This note was shown by Joseph to the parents of the intended wife, and was an inducement to the marriage. After the marriage, Moses desired to reclaim the note so given without consideration, and the matter was referred to arbitration, and the arbitrators awarded the note to be given up, which Joseph refused to do, and the case then came up on motion for an attachment against Joseph for non-performance of the award, and Joseph made a cross-motion to set aside the award. Chief Justice Mansfield held that where there were proposals of marriage, and third persons represented any thing in a light different from the truth, even though by collusion with the husband, they shall be bound to make good the thing in the manner in which they represented it. It shall be as represented to be, and the husband alone shall be entitled to relief, as well as when the fortune has been specifically settled on the wife. Atherley, in his work on Marriage Settlements (27 Law Lib. chap. 34, marg. p. 484), after citing the above case, says that the principle upon which the court proceeds in such cases, when the thing is not actually made the subject of the settlement, must be this, as he conceives; that as the wife must be presumed to agree to the marriage as well in expectation of the present support which she and her children will receive from her husband, as of the provision which he may have made for them after his death, a person who has been at all concerned in raising such expectations shall not be suffered in any wise to disappoint it.

Here in the case at bar it is necessary to take but one further step in order to maintain the action. It is only necessary to hold that the issue of the marriage which was brought about by the falsehood and fraud of the defendant shall be able to call him to account for such fraud, and bind him to make good the thing in the manner in which he represented it, so that it shall be as he represented it to be. We see no reason why such steps should not be taken. There is certainly none in the position of the defendant, who stands before the court the possessor of property by reason of his fraud, which property, if it were as it was represented by defendant, would belong to the plaintiff herein. She can claim to be in privity with defendant, although he made the representations to her mother, because she is the child of the marriage brought about by the fraud of the defendant practiced upon the mother, and because she would be the owner of this property if the facts were as they were represented by the defendant to the mother. It is true, her own action was in no wise influenced by these representations, for she was not then born. But where, in the peculiar and anomalous rules obtaining in this branch of the law regarding marriage, marriage settlements, and frauds in relation thereto, a marriage is induced under circumstances such as exist in this case, we think there is no trouble in holding the defendant bound by his representations, and that in the character of a trustee ex maleficio, he shall be held to make good the thing to the person who would have the

property if the fact were as he represented it, assuming such person to be the fruit of the marriage brought about by those very representations. The leading principle of this remedial justice is by way of equitable construction to convert the fraudulent holder of property into a trustee, and to preserve the property itself as a fund for the purpose of recompense. Perry Trusts, § 170.

There is no legal objection toward constituting such a trustee in favor of one who was not in esse when the fraud was perpetrated, so long as it can be seen that such person seeks to take the property which the defendant holds by virtue of his fraud, and which such person would be entitled to hold if the representations the defendant made in regard to it were true. Equity will fasten upon a legatee or devisee the character of a trustee ex maleficio, where he procured the legacy or devise by fraudulently promising the testator to apply it for the benefit of others. See cases cited in Re Will of O'Hara, 95 N. Y. 403, 412, 413. The principle would be just as applicable if the fraudulent legatee had made the promise by which the legacy was procured for the benefit of some one thereafter to be born. The refusal to perform after the party comes into existence would be just as much a fraud as if refusal were in regard to one existing when the promise was made.

In the case last cited (Re Will of O'Hara), the legatees were converted into trustee ex maleficio in favor of the heirs at law and the next of kin of the testatrix, not one of whom perhaps, was living at the time the will was executed and the promise made. There can be no objection therefore to holding this defendant as such trustee, based upon the fact that when he made the false representations the plaintiff was not living. They were made in her favor, and they can inure to her benefit. By a decision of this case in this manner, we think, at least the cause of common honesty and decent morals is upheld, while at the same time] no rule of law or equity is violated. The facts, as we have said, are quite novel in their character, and the result is that a man who has procured property by fraud is prevented by a court of justice from further enjoying it, and compelled to surrender it to one who is the daughter of the person from whom he procured it, and who would be entitled to it if the representations which he made, and by which he now enjoys it, were true. Such a result cannot be other than satisfactory.

The defendant asks, if his demurrer be overruled in this court, that he be permitted to withdraw it, and answer on payment of costs. He has twice refused this favor in the Supreme Court. We suppose that we have the power to grant it now, under section 497 of the Code. Formerly, in such a case as this, it was decided that this court did not have the power to grant such leave. Whiting v. Mayor, etc., of N. Y., 37 N. Y. 600. Under the circumstances, we do not think it would be well for us to grant the leave desired. Changes may have taken place since the action was commenced which might have weight in deciding the merits of the application; such as the loss of testimony on the part of the plaintiff, or other changes of that nature. Justice will be better attained by remitting that question to the Supreme Court, where both sides may be heard upon an application, and all the questions have appropriate consideration.

The judgment must therefore be affirmed, with costs, with leave to defendant to apply to the Supreme Court for leave to withdraw the demurrer and interpose an answer.

Rapallo, Danforth and Finch, JJ., concur. Ruger, C. J., and Andrews, J., dissent. Earl, J., not sitting.