(dissenting).
The decision of the majority to the effect that the decree of the probate court is conclusive seems to infer general equity powers in that court which I had not supposed it to possess. I am obliged to dissent from the conclusion that Mrs. Tanke’s title to this land rests upon the decree of distribution, and that she thereafter is personally immune from the controlling power of courts of general equity ju*457risdiction. As I believe that this court has power to dispose of the case upon its merits, I feel justified in stating the doctrines which in my judgment should control.
A decision which allows a murderer to inherit property from his victim shocks the moral sense of all right-feeling people, and that fact in itself strongly suggests that it is wrong in law, morals, and justice. Only the express mandate of the legislature will justify a court in reaching such a conclusion, and such mandate I do not find in the statute. In its absence no court having at its command the principles, and doctrines of equity jurisprudence is justified in confessing impotence and inability to prevent the successful consummation of such a wrong. The statute is in general terms and controls the devolution of property under ordinary normal conditions. The legislature has not said that a wife who murders her husband shall not inherit his property; neither has it said that a wife who murders her husband shall inherit his property. It has said that a widow shall inherit a certain proportion of the property of her deceased husband, and it in my judgment leaves such exceptional and extraordinary cases as the present to be determined by fundamental principles which for generations have been established in our jurisprudence.
There are but few authorities upon the exact question, and they are conflicting. It is a remarkable fact that all the cases of this character have arisen in this country, where human life is said to be held less sacred than in other parts of the civilized world. The first case, that of Owens v. Owens, 100 N. C. 240, 6 S. E. 794, arose in 1888, and it was held that a widow, who had been convicted as an accessory before the fact of the murder of her husband and confined in the state prison under sentence therefor, was entitled to dower in her husband’s lands' because the statute which gave a legal dower contained no provision for its forfeiture in the event that she murdered her husband. The court felt that it was bound by the literal language of the statute and had no power to read therein an exception which was not expressed in the language. The same conclusion was reached in Deem v. Milliken, 53 Ohio St. 668, 44 N.E. 1134; Id., 6 Ohio Cir. Ct. 357; Carpenter’s Estate, 170 Pa. St. 203, 32 Atl. 637, 39 L. R. A. 145, Williams, J., dissenting; and Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935, 35 L. R. A. 564, reversing a former decision in the same case (31 *458Neb. 61, 47 N. W. 700, 10 L. R. A. 810, 28 Am. St. 500). The Pennsylvania case was approved extra judicially in Holdom v. Ancient Order, 159 Ill. 619, 43 N. E. 72, 31 L. R. A. 67, 50 Am. St. 183.
On the other hand, the New York Court of Appeals, in Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. 819, Gray, J., dissenting,.held that, in enacting a general law providing for the devolution of property by will or descent, the legislature could not have intended that the provisions should operate in favor of one who murdered his ancestor or benefactor in order to speedily come into' possession of his estate either as devisee, legatee, or heir at law. The legislature, when it used general language, could not have intended, says Judge Earl, that a murderer should inherit the property of his victim, and, “besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found acclaim upon his own iniquity, or to acquire property by. his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.”
This decision was approved in the subsequent case of Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540. The same conclusion was' reached in Ontario in McKinnon v. Lundy, 24 Ont. 132, affirmed in Lundy v. Lundy, 24 Can. Sup. Ct. 650, and by the supreme court of Missouri in the recent case of Perry v. Strawbridge, 209 Mo. 621, 108 S. W. 641, where it was held that the word “widower,” as used in the statute, would not be construed to include a person who has-made himself a widower by murdering his wife. In Re Kuhn’s Estate, 125 Iowa, 449, 101 N. W. 151, it was held that the statute (Code,! § 3386), which provided that “no person who feloniously takes oiT causes or procures another so to take the life of another shall inherit I from such person,, or take by devise or legacy from him, any portion I of his estate,” did not deprive a widow who was the murderer of her! husband of her distributive share of his estate, which came to herl under section 3366 as a matter of contract. The statute was subse-I quently amended so as to bring the surviving spouse within its terms.
*459I am not impressed by the supposed difficulties in the way of so construing this statute as to exclude a case of this character. The books are full of cases in which such construction has been resorted to, and the principle applied is neither novel nor extreme. The idea that the legislature will not be presumed to have intended to legislate unjustly early found expression by the writers on the common law, and Dwarris drew from Plowden and Coke the maxim of interpretation that, “when statutes are made, there are some things which are exempted and foreprized out of the provisions thereof, by the law of reason, though not expressly mentioned; thus, things for .necessity’s-sake, or to prevent a failure of justice, are excepted out of statutes.” [Potter’s Dwarris, St. & Const, p. 123.] The courts have naturally and properly always striven to prevent injustice which would otherwise result in individual cases from the linguistic shortcomings of legislators. The limitations of language are such that it is practically impossible to so phrase a code or statute as to provide for all the manifold conditions and the possible emergencies which result from human activities. But justice must be presumed to be the ultimate purpose which the legislature had in mind, and, as said by a recent writer, “whenever the written law plainly contradicts the precepts of justice so inwoven into our nature as to seem instinctive, a doubt will be made whether the legislator really intended what he seems to have-declared.” Carter on Law, Its Origin, Growth, and Functions, p. 282. When a literal construction would result in an unjust, inequitable, and absurd conclusion, it is always held that the general language of the statute should not be so construed as to produce such a result, A statute should be construed in the light of the fact that there are many othér rules and principles of law and equity, the existence of which were known by the legislature and the application of which may restrict its general language.
In Cleaver v. Mutual [1892] 1 Q. B. 147, which grew out of the famous Maybrick case, it appeared that Mrs. Maybrick had murdered her husband and that his executors claimed the proceeds of certain life insurance policies as against the assignees of the widow. The policy contained no exceptions which covered the case, and the married women’s act of 1882 [45 & 46 Viet. c. 75] allowed a person to lame his wife as beneficiary in -a life insurance policy and create a *460trust in the proceeds in her favor. It was held that the wife by murdering her husband had rendered the trust incapable of performance. In the course of the decision Lord Justice Fry remarked that the language creating a trust must “be both subject to the’principle of public policy, * * * and the language of the statute must be read as if it contained an exception of such a case.”
Numerous cases illustrate the fact that the ultimate rights of parties are not always measured by the strict and literal language of a statute. A party’s conduct may prevent him from availing himself of an apparent right given by a statute. Connivance will bar the right to a divorce, although not so provided in the statute. Lee v. Hammond, 114 Wis. 550, 559, 90 N. W. 1073; Pierce v. Pierce, 3 Pick. (Mass.) 299, 15 Am. Dec. 210; Robbins v. Robbins, 140 Mass. 528. 5 N. E. 837, 54 Am. St. 488; Wilson v. Wilson, 154 Mass. 194, 28 N. E. 167, 12 L. R. A. 524, and cases cited in note, 26 Am. St. 237 In equity it is the settled rule that the fraudulent concealment througl' some artifice or act of a cause of action will prevent the running o: the statute of limitations. 25 Cyc. 1214; Blair v. Bromley, 5 Hare, 542; Moses v. St. Paul, 67 Ala. 168; Allen v. Conklin, 112 Mich. 74, 70 N. W. 339; Lieberman v. First Nat. Bank, 2 Pennewill (Del.) 416, 45 Atl. 901, 48 L. R. A. 514, 28 Am. St. 414. The same rub] prevails generally in actions of law. Shelby County v. Bragg, 135 Mo. 291, 36 S. W. 600; Quimby v. Blackey, 63 N. FI. 77; 25 Cyc. 1215. A party who is guilty of fraud cannot avail himself of the statute of fraud for the purpose of protecting and retaining the fruit:] of his fraud. 5 Viner, Abr. 523, pi. 40; Kinard v. Fliers, 3 Rich. Eq| (S. C.) 423, 425, 55 Am. Dec. 643; Rogers v. Rogers, 87 Mo. 257 Flaigh v. Kaye, L. R. 7 Ch. 469. So a fraud will estop a widow fronj claiming her dower. Dougrey v. Topping, 4 Paige (N. Y.) 94 Smiley v. Wright, 2 Ohio, 506; Ellis v. Diddy, 1 Ind. 561; Connoly v. Branstler, 3 Bush (Ky.) 702, 96 Am. Dec. 278. See cases cited in a note in Shellenberger v. Ransom, 25 E. R. A. 564. Chapter 237 p. 348, Laws 1901, provided that after the expiration of a designate: time the title to land registered under the Torrens system should b indefeasible. No exceptions were made; but in Baart v. Martin, 99 Minn. 197, 108 N. W. 945, 116 Am. St. 394, it was held that when the *461registration was secured by fraud, and the rights of innocent purchasers were not involved, the decree would be vacated.
These cases, and many others which might be cited, show conclusively that there are many things to be taken into consideration other than the literal language of the statute. The exact ground upon which the decisions proceed is not always clearly expressed; but by the application of some rule of construction, or some common-law or equitable principle, a party is prevented from securing what an exact and literal reading of a statute would give him.
While as a general proposition I find no difficulty in' holding that this statute was not intended to be for the benefit of such a criminal, I nevertheless am of the opinion that under the conditions of this case the legal title of the land passed to the widow. But she obtained the title by fraud and crime, and a court of equity, acting in per-sonam, should deprive her of the fruits of her crime. An effective argument in' favor of this view was presented by Dean Ames in ap article published in 36 Am. Law Reg. (N. S.) 225. In 2 Tiffany, Modern Law Real Prop., '§ 505a, it is said that certain cases, “though no doubt correct in so far as they decide that the legal title to the property of the deceased passes to the murderer, are probably incorrect in that they fail to apply or recognize the principle that a court of equity will intervene to compel one who acquires property by the commission of a wrong to hold it as a trustee ex maleficio for the persons rightfully entitled” to it. A writer in the New York Law Journal says “that the requirements of these statutes can be satisfied and yet a just result be reached by the application of the familiar equitable principle that no one may take advantage of his own wrong, and that one who through crime or fraud acquires the legal title to property belonging to another must hold that property as a constructive trastee for the person thus wronged or his representatives. * * * No one will claim that the result reached in the Nebraska and this Pennsylvania case was a just one, while the view here set forth accomplishes justice, violates no statute and preserves the rights of a purchaser without notice of the crime or fraud. The application of this just principle makes unnecessary the attempted distinction between cases of wills and cases where the statutory laws of descent are 'n question.”
*462This statement is quoted in 30 Am. Law Rev. 131, and the editor remarks that: “when a murderer comes red-handed into a so-called court of justice and there demands that the court shall execute *i statute in a manner which never could have been intended by the legislature which 'enacted it, so as to allow him to come into the possession of property through a capital felony, * * * then the courts ought to withhold their aid. By granting it they make themselves in a moral sense accessories after the fact, and lend encouragement to murders of this kind.” Another legal journal in picturesque language says: “It really seems to us that the question is too clear for debate. The position of the Nebraska, Ohio and North Carolina courts, that a murderer may inherit from his victim, because the statute of descent does not say that he shall not, seems almost grotesque in its blind narrowness amounting to practical immorality. One might as well contend that a highwayman who kills a traveler and takes his horse, although he must go to prison * * * is still entitled to the horse because the statute does not provide for the contrary! The Saviour probably did not think that the wicked men in the parable were sound in law when the}'- said: ‘This is the heir; come let us kill him, and the inheritance shall be ours.’ ” 6 Green Bag, p. 535.
As I understand the opinion prepared by the Chief Justice, it concedes that this equitable doctrine may properly be applied when the criminal is claiming under a will, but asserts that it is not applicable when the party claims under the statute of descent. But I see no difference in principle. The objections are that the technical requirements of a trustee ex maleficio are not present. But the controlling principle lies much deeper, and the technical trusteeship is merely the means by which the principle is applied and the result worked out. Nor does the application of this rule violate the maxim that equity follows the law, which means merely that equity applies to equitable titles and interests those rules of law by which legal titles are regulated, provided this can be done in a manner not inconsistent with the equitable titles and interests themselves. The doctrine that no man may profit by his own wrong lies deep down among the foundations of English jurisprudence. The maxim, “Nullus commodum capere potest de injuria sua propria,” is a part of the common law. *463Broom, Legal Maxims, p. 227. “It is a máxime of law, that no man shall take advantage of his owne wrong.” Coke Litt. 148b; 1 Hale, P. C. 482; 2 Hale, P. C. 386; 2 Inst. 713; Plowd. 309; Findon v. Parker, 11 Mees. & W., 675, 680. “No system of jurisprudence” says Lord Justice Fry, “can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.” Cleaver v. Mutual [1892] 1 Q. B. 147. To permit this would be to subject the law “to the reproof of committing the flagrant injustice of an atrocious criminal enriching himself by his own crime.” There is no presumption that a statute was intended to repeal the common law. Endlich, St. Const. -§ 127; Shellenberger v. Ransom, 25 L. R. A. 564, note. The principle that the operation of an act is to be interpreted in the light of the common law is, as we have seen, of constant application in all departments of the law, and parties are thus prevented from acquiring under the forms of the law new rights to which they are not in fact entitled.
Equity prevents fraud by taking from the wrongdoer the fruit of his deceit, and it accomplishes this by the beneficial doctrine of constructive trust. Whenever the title to property, real or personal, has been obtained by actual fraud, or through any other similar means, or under any other circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the benefits of interest, equity imposes a constructive trust in the property in favor of one who is truly and equitably entitled to the same. The form and variety of these trusts are practically without limit, as the principle is applied whenever necessary for the doing of complete justice. Such trusts are raised for the purpose of working out right and justice, and often directly contrary to the actual intention of the party who holds the legal title. 1 Pomeroy, Eq. Jur. (3d Ed.) § 155; 3 Id. § 1053; 1 Story, Eq. Jur. (13th Ed.) § 256; Rollins v. Mitchell, 52 Minn. 41, 53 N. W. 1020, 38 Am. St. 519. This doctrine was applied in Nester v. Gross, 66 Minn. 371, 69 N. W. 39, where it was held that if one party obtains title to land by 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 *464it. 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 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 idea also appears in the Canadian case of McKinnon v. Lundy, 21 Ont. App. 560, in the Ontario Court of Appeal, where Maclen-nan, J. A., said: “One can easily understand that in the case of a murder committed with the very object of getting property of the deceased by will or intestacy, the court could defeat that object, even by taking away from the criminal a legal title acquired by such means; and it may be that the court would go further and take the legal title away even though the crime were committed without that object”— citing Lutterel v. Lord Waltham, cited in Huguenin v. Baseley, 14 Ves. 273, 290, and 2 White & Tudor, L. Cas. (Cth Ed.) 611; Mestaer v. Gillespie, 11 Ves. 621, 639; Story, Eq. Jur. (13th Ed.) §§ 256, 440. When McKinnon v. Lundy reached the Supreme Court of Canada, the original opinion was reinstated, thus reversing the Ontario Court of Appeal, 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 convey-*465anee, 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.
It was so held by Lord Thurlow-in Luttrell v. Olmius, of which Lord Eldon, in Mestaer v. Gillespie, 11 Ves. 621, 638, said: “Lord Waltham, tenant in tail, meaning to suffer a recovery, and by will to give real interests to his wife, Mr. Luttrell, who by his marriage had an interest to prevent barring the intail, did by force and management prevent the testator from signing the deed to make the tenant to the praecipe: Lord Thurlow’s opinion was clear, that, though at law Mr. Luttrell’s lady was tenant in tail, and, which makes it stronger, she was no party to the transaction, yet neither he nor any one else could have the benefit of that fraud: and the jury upon an issue directed having found that the recovery was fraudulently prevented, Lord Thurlow held, even in favor of a volunteer, that the tenant in tail should not take advantage of the iniquitous act; though she was not a party to it; and the estate was considered exactly as if a recovery had been suffered.” The same principle was applied by Lord Thurlow in Dixon v. Olmius, 1 Coxe, 414. In Middleton v. Middleton, 1 Jac. & W. 94, Lord Eldon again referred to the Luttrell case, and said that: “If a person be fraudulently prevented from doing an act, this court will consider it as if that act had been' done, as in the case on Lord Waltham’s will.”
The methods by which the English courts of equity prevented the perpetration of frauds under St. 7 Anne, c. 20, were referred to in i Baart v. Martin, 99 Minn. 197, 212, 108 N. W. 945, 116 Am.' St. 394. . By that act all unregistered conveyances were to be adjudged fraudulent and void against subsequent purchasers for a valuable consideration. In Doe v. Alsopp, 5 Barn. & Aid. 142, it appeared that there ■ had been two assignments of the same lease and that the last executed had been first recorded. It was held that in a court of law the assignment which was recorded last, although executed first, must be treated as fraudulent, and void, although the party claiming under the first recorded assignment had full knowledge of the prior execution of the first assignment. “A court of law” said Chief Justice , Abbott, “is now called upon for the first time, to put a construction *466on the words of the statute, * * * it is impossible, that pláiner words could be used, and I think, that, sitting in a court of law, we are bound to give effect to them, and that we cannot say, that this deed is not fraudulent and void within the meaning of this act, because, possibly it may turn out upon examination, that the defendant is entitled to some relief in equity.” Mr. Justice Bayley said: “It is to be observed, that the words ‘bona fide purchaser’ are not used. I think, therefore, that we are bound in a court of law to give effect to these words.” But many years before the decision of Doe v. Al-sopp, Ford Hardw.icke had held in De Neve v. Le Neve, Amb. 436, 1 Ves. Sr. 64, 3 Atk. 646, that a person who purchased an estate after notice of a prior equitable right was a bad-faith purchaser, and would not be enabled by getting the legal estate to defeat such prior equitable interest, but will be held a trustee for the benefit of the person whose right he sought to defeat. This rule was approved byl Lord Eldon in Davis v. Earl of Strathmore, 16 "Ves. 419, 426. In Greaves v. Tofield, 14 Ch. Div. 563, Lord Justice James said that Lord Eldon had pointed out that there was no altering the language| of the act of parliament; but giving the acts full force, and allowini the estate to go in priority to the first that registered, still, if that manl had notice of anything by which his vendor or his grantor had bound| himself, he was bound by it.
It is true that none of the cases in the English equity courts ar exactly like the present; but the analogy is sufficiently close to justifjj this court in applying the principle of those cases and depriving Mrs Tanke of the benefits which she would otherwise obtain as the result: of her crime. The doctrine is expressly approved and applied b)| the New York Court of Appeals in Ellerson v. Westcott, 148 N. Y 149, 42 N. E. 540. The abolition of the formal distinctions betweei law and equity have not affected the power of a court of equity ii such case. The legislatures now, as formerly, enact statutes witl| full knowledge of the fact that the courts of equity still exercise thei ordinary powers. As said in Baart v. Martin, 99 Minn. 197, 2111 108 N. W. 950, 116 Am. St. 394; “It must be presumed that the legisj lature understood and expected that the courts of equity would n main open to parties who were able to bring themselves within thj rules which require the granting of equitable relief. The fact th; *467a 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 amongst 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 manners and equity should require that an heir should be declared unworthy, it would be just to deprive him of the inheritance.” Domat, Civil Law, 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 quae ut indignis aufer-untur; Maynz. Cours, v. 3, § 482; 8 Harvard L. Rev. 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 *468found in Quebec Code, §§ 610, 893. 1 Demolembe, Sue. 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 connection 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. 9, Acts 1790, 1 St. 117) made the prohibition general by providing that “no conviction or judgment for any of the offenses aforesaid, shall work corruption of blood, or any 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 Blackstone, Com. 132; 1 Chitty, Crim. L. 733; Coke, Littl., § 199; Nichols v. Nichols, 2 Plowd. 477-486; Hawkins, P. C. bk. 2, c. 49. §§.13, 30; Perkins v. Bradley, 1 Hare, 219. The'se 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 in-l justice to innocent persons which resulted from this doctrine thatl these constitutional provisions were adopted. As said in Wallacb v. Van Riswick, 92 U. S. 202, 23 L. Ed. 473: “No one ever doubted! that it was a provision introduced for the benefit of the children] and heirs alone; a declaration that the children should not bear tin *469iniquity 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 R. L. 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 seized 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 upon whom the law casts the estate in lands, tenements or hereditaments immediately upon the death of his ancestor.” 2 Blackstone, Com. 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. Simon-son Brothers Mnfg. Co., 86 Minn. 140, 147, 90 N. W. 378. It can no longer be questioned that this woman was the widow of John Well-ner.
*470But 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. See 1 Woerner, Admn. § 276. The title to the personal property vests in the administrator or executor, and is the primary fund for the payment of debts. The title to real property vests in the heirs or devisees, and constitutes a secondary fund to be resorted to for the payment of debts, devises, legacies, or expenses of administration only after the personal property is exhausted. State v. Probate Court of Ramsey County, 25 Minn. 22; Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197; Noon v. Finnegan, 32 Minn. 81, 19 N. W. 391; Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. St. 656; Hill v. Townley, 45 Minn. 167, 47 N. W. 653; Fleming v. McCutcheon, 85 Minn. 152, 88 N. W. 433; Kern v. Cooper, 91 Minn. 121, 97 N. W. 648; Jenkins v. Jenkins, 92 Minn. 310, 311, 100 N. W. 7. The personal representative of the deceased is entitled to the possession of the real estate and of the rents and profits aris ing therefrom until the estate is settled. After the debts, devises, legacies, and expenses are paid, the court by decree assigns the remainder of the estate to those entitled to it under the will or statute of descent. But, as said by Chief Justice Gilfillan in State v. Probate Court of Ramsey County, 25 Minn. 22: “This decree is not necessary to vest the title to the real estate, for that passes upon the death of the decedent. The effect of the decree upon real estate is to discharge it from the administration. Until then, it is assets and is liable to be applied, in default of personal property, to payment of debts and charges ofl administration, whether it remain in the hands of the heir or devisee,) or has been by him conveyed to another. A purchaser takes with this) liability upon it.” The heir may thus transfer the title.
In Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197, it was held) that the statute had not changed the common-law rule, which gave t the heir the right to maintain an action for damages for trespass com-| mitted upon the land after the death of the ancestor. After referrin *471to various decisions in other states having similar statutes it was said that the right to the possession of the estate “is in the heir until the personal representative asserts his right and takes possession; that, on the death of the intestate, the lands descend, as at common law, to his heirs, who may maintain ejectment against third persons, if the personal representative has not taken possession; that the personal representative takes neither title to nor interest in the land, except the mere right to take possession during administration, if he sees fit to do so.” “The personal representative,” said Mr. Justice Mitchell “has no title to or interest in the real estate, save only the privilege to claim the possession during administration; and-that, until he asserts this right, the rights of the heirs or devisees are unaffected by the statute” — that is, the realty descends to the heir, “subject to a naked power to be sold on the happening of the contingency named.” 1 Woerner, Admn. § 276. In Jenkins v. Jenkins, 92 Minn, 310, 311, 100 N. W. 7, it was held that the widow could maintain ejectment for the possession of the land; it not appearing that the administrator had taken possession thereof. The title which the heir thus acquires cannot be affected by subsequent legislation subjecting the land to liabilities which were not imposed by the law when the title became vested. In re Noon’s Estate (Ore.) 88 Pac. 673.
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. The land was not required for the payment of debts or expenses, and the administrator never took possession. The nature, character, or quality of her title was not affected by the decree of the probate court. As said by Judge Cooley in Dickison v. Reynolds, 48 Mich. 158, 12 N. W. 24, when the estate has been fully administered, “the assignment is a matter of course and a mere formality.” In Rich v. Victoria Copper Mining Co., 147 Fed. 380, 77 C. C. A. 558, which was an action of ejectment to recover lands where it was claimed that the wife’s title had been established by the decree of the probate court, Severens, C. J., said: “The probate court distributes and assigns the property of the intestate to those apparently entitled to the possession, but it does not by its order originate or establish any muniment of *472title to the real estate in the distributees.” I am unable to see how this rule is affected by the fact that our probate courts are constitutional instead of statutory courts.
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.
JAGGA.B.D, J., concurs with ELLIOTT, J.