By the Court,
Paine, J.A motion for a re-hearing was granted in this case, for the reason that upon one point our former decision was based úpon a mistake of fact. We supposed that the administratrix had fully accounted before the probate court for all that she -received from the estate, including the two accounts against Walter and Angeline, used by her in the purchase of their shares. But it appears from a closer inspection of the account, that although she was charged with those items in one part of it, she was credited with them in another, thus leaving them out of the general balance against her, and leaving the heirs at liberty to follow, to that extent, the trust funds into the lands purchased by her. The result of applying the principles stated in the former opinion to this state of facts, is, that Phoebe Barker must be adjudged, to hold in trust for the heirs of the estate, such proportion of the shares of Walter and Angeline, as the amount of the accounts against them was of the entire consideration paid by her for their shares. If any of the trust funds, beyond the amount of those two accounts, was actually used to pay for those shares, for that the ad-ministratrix has accounted, and the rule stated in ¿he former opinion must govern. The heirs cannot have a personal *148judgment against lier for the amount so used, and also hold . the land.
But Walter and Angelina being equally interested with the other children in the personal property of the estate, would be equally entitled with them to an interest in that portion of their shares which the administratrix is adjudged to hold in trust for the heirs. They would thei’efore be entitled to have adjudged to them each one-eighth of that portion, in this suit, were it not for the fact that the entire defense on their part, which sought first to set aside their sales entirely, and secondly to establish the trust in their favor, is carried on by the defendant Rogers in their names, in pursuance of a champertous agreement. Our conclusion as to the existence of the law of champerty in this state was vigorously assailed on the re-argument; but after carefully considering what was then said, we are not disposed to change it. It is true that some courts in this country have held that part of the law obsolete; but we think with the supreme court of Massachusetts, referred to in our former opinion, that if a change is desirable, the legislature and not the court should make it. Nor do we think any of the statutes referred to have that effect. Sec. 214 of the Code of 1856 was designed merely to leave the matter of the fees of attorneys and counsel to the agreement of the parties, and was obviously not intended as a repeal of the law of champerty, else it would not have been confined to the employment of one class merely. Nor does the repeal of the law making void conveyances of land held adversely to the grantor, relate directly to the law of champerty. That law may have been founded on the same policy, but it was a provision entirely distinct from that concerning champerty, and the one may exist or not exist without any reference to the other. We must therefore hold that with such relaxations as were referred to in the former opinion, the law of champerty exists in this state. But there is a peculiar difficulty in applying that law to this case. Ordinarily the parties to a champertous agreement appear as plaintiffs, and a dismissal of the suit would not be a bar to a new suit freed from champerty. But here the parties to the champerty appear as defendants, asking *149affirmative relief, and if their application, so far as asking such relief is concerned, is dismissed, and an absolute ment given for the plaintiff in the partition suit, that would undoubtedly be a bar to a new suit by these defendants, though free from any champerty. The fact that they appear as defendants asking affirmative relief, ought not on the one hand to relieve them from the effects of the law of cham-perty, nor on the other to subject them to a severer penalty than ordinarily results from its application. We can see no way therefore, by which the law as we have held it, upon that subject, can be applied to this case, except by dismissing the application of Walter and Angeline for affirmative relief, and settling the rights of the parties as they would then appear, without prejudice to the right of Walter and Angeline to bring a new suit within a limited time, to obtain whatever rights they m'ay really be entitled to.
In our former decision we stated that we were satisfied from the evidence, that no actual fraud was practiced by the widow in the purchase of those shares, by which the sale could be set aside. We will now add, upon a further consideration of the question, that we are satisfied that she did not stand in any such relation to them, as would avoid the sale by an application of the law concerning the purchase of the trust estate by the trustee from the cestui gue trust. Where that rule is applicable, we have adhered to it strictly. Gillett vs. Gillett, 9 Wis., 194. But here we think the rela-71 . V tion of trustee and cestui que trust with respect to the real estate, did not exist. The administratrix had no title to it, but it descended to the heirs. True it was liable, if necessary, to be sold to pay the debts of the deceased, by virtue of a statutory proceeding for that purpose. But in this case the necessity authorizing such a proceeding did not exist ; no such proceeding was had; and the mere possibility of it in case the necessity had existed, does' not make the admin-istratrix the trustee of the heir, and incapacitate her from purchasing his interest in the real estate.
It follows therefore that all that Walter and Angeline would in any event be entitled to, is 'each one-eighth of the *150Por^on which fhe administratrix is adjudged to hold for the heirs.
it was contended by the counsel that the court below improperly admitted in evidence the copy of the champertous agreement, because the notice to produce the original was only given at the trial. Such a notice is undoubtedly insufficient to justify the admission of secondary evidence, where it appears that the party notified has not the paper in his possession at the trial. But we think the facts stated in the case would have justified the court below in inferring that he had the paper present. When called on to produce it, he and his counsel “said nothing.” Afterwards they offered to show that “he resided at a distance of forty miles," without however stating or offering to show that he had not the paper with him. We think upon such conduct the court was justified in assuming that he had the paper with him, and in admitting secondary evidence if he refused to produce it.
The result of our conclusions requires the judgment of the circuit court to be modified by deducting from the land awarded to Phoebe Barlcer, six-eighths of the portion herein-before indicated as held in trust by her for the heirs, and by adding one-eighth of that portion to each of the shares of the six children by the second marriage. This would still leave two-eighths of that portion with Phcebe Barlcer, but the judgment to be entered without prejudice to the rights of Walter and Angeline to bring suits within a limited time, freed from champerty, to recover each an eighth. The only doubt we have had as to the propriety of such a judgment, arose from the provisions of the statute relating to partition, requiring the court to settle the rights of the parties, and to render a judgment that “ the partition made shall be firm and effectual forever,” &c. But we have come to the conclusion that this was not designed to prevent the possibility of a conditional judgment in such cases, where the attainment of justice and the preservation of the rights of the parties seemed to make it essential. The judgment would then have all the effect given to it by the statute, subject to the conditions expressed on its face.
*151The judgment is modified as before stated, and the cause remanded with directions to enter a judgment and we shall allow costs to neither party in this court.