The following is the opinion of the referee:
Lawrence Godkin, Referee.By the terms of the order of reference the referee was directed to take proof of the facts and circumstances set forth in the petition, “ and to take such other proofs as may he offered respecting the right, title or interest of the petitioner to the fund in respect to which this appEcation is made, or the right of said petitioner to receive the same, or any part thereof.” The order further allows all parties to contest the • proceeding “upon any ground affecting the right of the petitioner' ' to receive any portion of the fund.” . As the scope of enquiry is thus confined to the question of the petitioner’s interest in the fund, I have deemed it proper' to eliminate from consideration all evidence directed to. show who would or would not be entitled to the fund in question if the petitioner is not entitled to receive it; and I have declined, to consider the question of the legitimacy or illegitimacy of any of the petitioner’s children, or the respective rights of the other claimants to the fund as between themselves, or as between themselves and the petitioner’s children, in the event of the netitioner being hereafter disqualified to take. And as by the order of reference the referee is directed to report the proofs respecting the right, title or interest of the petitioner to *443the fund and her right to receive the same “with his opinion/5, this opinion is now submitted to the court, notwithstanding the contention of the petitioner’s counsel that the order of reference does not call upon the referee to express an opinion upon the right of the petitioner to receive the fund. If, in spite of the language of the order, it was not intended that the referee should report his opinion upon this question, the court can disregard the opinion and consider the question de. novo upon an application for a stay.
Robert Swift Livingston died leaving a will in which he devised to his wife a life interest in certain real estate, with a remainder over to the issue of himself and his wife. Subsequently a judgment was entered in the partition suit of Tucker v. Livingston and others, by which this part of the testator’s will was construed, and it was decreed by the Supreme Court that the testator’s widow should be allowed to accept out of the proceeds of the sale ordered a certain sum as the amount of her life interest, and she did accept it. The balance was directed to be paid into court to be invested by the chamberlain of the city of New York, and to be paid over to the then infant defendant Mary Alice Almont Livingston, who is the petitioner here, upon the death of her mother, the testator’s widow. The petitioner contends with considerable force that the construction put upon the will by the judgment in this partition suit was erroneous. But the Court of Appeals has held in the case of Livingston v. Tucker, 107 N. Y. 549, that, erroneous or not, the judgment in that suit as to the disposition of the fund in question is res adjudicaba; and I must certainly consider that that judgment makes the disposition of the fund res adjudicaba for the purposes of the present proceeding. It, therefore, appears that there is a fund of $25,331.82 in the hands of the chamberlain of the city of New York, deposited with him by virtue of a decree of this court, which the petitioner in this proceeding would be entitled to have paid over to her upon the death of her mother, and that her mother is dead. The chamberlain has declined to pay over the money without an order of the court, and, an application having been made to the court for such an order, the question has been referred to me to take proofs as to the title of the petitioner to the fund and her right to receive it.
There is no doubt of the petitioner’s legal title to the fund. There is a doubt as to whether she should now receive the fund, and this doubt arises from the fact that she is now in the Tombs prison under indictment, charged with the crime of having mur*444.dered her mother. I do not consider it of much importance, to the. solution of this douht that some of the parties interested in the disposition of the fund, in case the petitioner is disqualified to take, have not taken any part in this- proceeding. Some of them have appeared before me and contested the right of the petitioner to take; and some of those interested ih the disposition of the fund are infants; and whether they had appeared or not, if the objection to the payment over1 to the,'petitioner of .the fund in question has any force or validity at all, it is an.objection baséd at least in part upon considerations of public policy, and, therefore, one which, in my opinion, the court could- interpose of its own motion, as custodian of the fund and as guardian iof the infants interested in the fund, upon the fact of the indictment' being brought to its attention.
In the case of Riggs v. Palmer, 115 N. Y. 506, the Court of Appeals held that a grandson of a man who liad» made a will in his grandson’s favor, and who had murdered his grandfather that he might prevent him from revoking the, provisions of file will, and in order that he might obtain the “ speedy enjoyment and immediate possession of the property,” was disqualified by this alone from inheriting his grandfather’s property under the law. of this state. The ground upon which this decision was based was the maxim that no man should be permitted to profit by his own fraud, to take advantage of his own wrong, to found any claim upon his own iniquity, or to acquire property by his- own crime. Two of the judges of the Court of Appeals dissented from the opinion of the court. The case has been criticised and the principle therein laid down appears not to be the law in certain other jurisdictions. In re Carpenter Estate, 32 Atl. Repr. 637 (Penn. Sup. Ct.); Owens v. Owens, 100 N. C. 242; Shellenberger v. Ransom, 59 N. W. Repr. 935 (Nebraska Sup. Ct.).
It' is urged, on behalf of the petitioner, that the criticisms to which the case of' Riggs v. Palmer has been subjected, the dissent from its doctrine which has been expressed by the courts of other states, as well as by two o-f the judges of the Court of Appeals who sat in the case, make it of such- ’doubtful, authority that the application of the principles therein enunciated should be strictly confined to a state of facts similar to that there presented; and that the position of the petitioner is essentially different from that of Elmer E. Palmer, for the reason that the latter was convicted, ■while the petitioner has only been indicted; that the presumption *445of innocence always exists in civil as well as in criminal proceedings; that this presumption is not rebutted by the fact of an indictment, and that, therefore, for the purposes of this application, the petitioner must be considered to be .innocent. But the presumption of innocence, in spite of an indictment, does not obtain for all purposes and in all proceedings. It exists for the purposes of securing to the accused a fair and impartial trial before a petit jury, but even in certain criminal proceedings this presumption is overthrown by the finding of an indictment. Bor instance, upon application for bail, in the absence of a statute prohibiting bail to be taken in capital cases, there is a presumption of guilt raised by the fact of the indictment. Ex parte Ryan, 44 Cal. 558; People v. Van Horne, 8 Barb. 158; Ex parte Jones, 55 Ind. 176; Ex parte Vaughan, 44 Ala. 417. Nor does it seem consistent that the highest court of this state should declare the law to be that a person convicted of'the murder of another in order to hasten his entry into the possession of that other’s estate shall not take the estate, and yet that the person accused of this offense shall, after indictment, be nevertheless presumed to be innocent, so as to avail of the fruits of what may afterward be found to be his crime, with the result that if he shall have finally been convicted, that which the law says he shall not take shall have been had by him.
It is further urged on behalf of the petitioner that her position is again distinguishable from that of the guilty defendant in Riggs v. Palmer, in that the latter had no title to his grandfather’s property at the time of the murder, and that his title being derived directly from his grandfather’s will, his ownership was created by his crime, «while in the case at bar the petitioner has had the legal title to the fund since the decree in partition, and that the case of Riggs v.- Palmer is not authority in any case in which the property in -.question is not derived from the person whose life has been taken. " It is also contended that as the petitioner’s right to the property was derived from the will of her father, to deprive her of it would defeat the devise in that will, and the clear intention of the testator. But as to this last objection, it must be remembered that the court is not now asked by the opponents of the petitioner to fake hemproperty from her, or to- permanently deprive her of the fund, but only to postpone her enjoyment of it in possession until after she shall have been acquitted of the crime charged against her. And it seems to me that the other objections: which have been above outlined, as well as the doubt thrown upon *446the authority of Riggs v. Palmer,' are in substance answered by Judge Andrews, of the Court of Appeals, in the.recent case of Ellerson v. Westcott, 148 N. Y. 149; 36 N. Y. Supp. 540, in which the Riggs case is discussed. The Ellerson case arose from an application to amend a complaint ■ in an action for partition brought by an heir at law against a devisee in possession, by adding an averment that the devisee caused the death of the testator by poison. The court denied the application, but used the following language in regard to the nature of the remedy suggested by the case of Riggs v. Palmer, and the reason for its existence: “ If the fact sought to be incorporated in the complaint can be established, Riggs v. Palmer is an authority that a court of equity will intervene and deprive her of the benefit of the devise. It will ■defeat the fraud by staying her hand and enjoining her from claiming under the will. But the devise took effect on the death of the testator and transferred the legal title and right given her by the will. The relief which may be obtained against her is equitable and injunctive. The court, in a proper action, u¡ill, by forbidding the enforcement of the legal right, prevent her from enjoying the fruits of her iniquity. It will not and cannot 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 civil law debarred one who procured the death of another from succeeding to his estate, either as testamentary heir or by inheritance, on the ground that he was unworthy. Domat says he shall be ■deprived of the inheritance (Part 2, book 1, title 1, § 3), and in the Code Napoleon, section 621, such a person is classed among those ‘ unworthy to succeed, and as such excluded from succession.’ ”
It follows that it is my opinion that, while the petitioner has a legal right to the fund in dispute, yet, since it is the law of this ■state that upon-her conviction of- the crime for which she has been indicted she will be divested of her title, the court, which is the custodian of the fund, has the power to prevent her. from entering into possession of it until after she shall have been tried by a petit jury and acquitted of the crime with which she is charged, •or until the indictment shall have been otherwise disposed of, and that the fact of her indictment makes a case in which that power' •should be exercised. I am aware that the circumstances of this ■case may be such that it will be a hardship to the petitioner that •she shall not have access to the fund which, if she is innocent, is *447clearly hers, so as to prepare her defense and secure her acquittal of the heinous offense with which she is charged. But under the law of this state, as it stands, I cannot see any way in which to escape from the conclusion that the petitioner has not now a right to receive the fund. ;
Gratz Nathan and John 0. Shaw, for petitioner. George H. Teaman, opposed. Pryor, J.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, 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 Biggs 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 Wharton on Ev., §■ 77 6: Wells on Bes Adjudicata, § -420.
In Riggs v. Palmer, although the defendant had been convicted of the murder, the issue of fact whether he committed the *448murder 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. If she murdered her mother, she is not entitled to the possession and 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, 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, Oh. J., speaking of its effect, said: “That a court of equity will intervene and deprive her of the benefit of the devise. It will defeat the fraud by staying her hand and enjoining her from, claiming únder the will. But the devise took effect on the death of the testator, and transferred the legal title and right given her by the will. • The relief which, may be obtained against her 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.”
By. her application for the fund, the petitioner solicits the equitable intervention of the court,' and compels consideration of the fact that would defeat her claim to equitable relief. The application being" to the court in equity, it were an available and insuperable ground of refusal that to grant it would be to concede to the petitioner “ the fruits of her iniquity.”
Hntil, then, the fact be ascertained, whether the petitioner murdered her mother, her right to the possession and enjoyment of the fund .cannot be determined;
But a trial of this issue in a civil proceedings pending the indictment might be of private, and public mischief. Less evidence of the fact of the murder would, suffice in the civil than in the criminal action. If the fact be found* against the petitioner in this proceeding upon a mere preponderance of evidence, it might *449be of prejudice to her on the' trial of the indictment, to a conviction upon which proof beyond a reasonable doubt is requisite. If. it be answered that this is a hazard which.the petitioner is willing" to incur, then it is remarked that her acquittal in this proceeding might be, nay, .probably would be, of prejudice to public justice on the trial of the'indictment.
In either view; therefore, the issue raised upon the present application should be first agitated and determined on the trial of the indictment.
Indeed,' it is a prevalent rule of public policy that when an-accusation' of crime is involved in concurrent criminal and civil actions, the trial of the civil will be suspended until the determination of the criminal prosecution. Wells on Res Adjudicatay § 420.
To the suggestion that some of the parties interested in the1 fund, in case of the incapacity of the petitioner, do not appear in¡ opposition to its receipt by her, the response of the referee is-satisfactory.
Application denied, with leave, however, to renew when the indictment- is disposed of; no costs.
Application denied, with leave to renew.