
    (16 Misc. Rep. 442.)
    In re FLEMING.
    
    (Supreme Court, Special Term, New York County.
    March, 1896.)
    Descent and Distribution—Murder of Ancestor.
    Where the remainder-man under a will has been indicted for the murder of the life tenant, his petition to compel payment of the estate to him
    Mary Alice Almont Fleming to compel payment to her of money in the custody of the court.
    Denied.
    
      Gratz Nathan and John C. Shaw, for petitioner.
    George H. Yeaman, for defendant.
    
      
       Reversed. See 39 N. Y. Supp. 150.
    
   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, 22 N. E. 188, namely, that “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The petitioner is indicted for the murder of her mother, upon the termination of whose life the petitioner was to have the property in question. By the murder of her mother, if so it be, the petitioner at once secured property, which she would have lost, had the life tenant survived her, and accelerated the possession and enjoyment of that property. It is insisted that the case is discriminated from Riggs v. Palmer by the circumstance that Palmer had been convicted of the murder, whereas the petitioner is only indicted. But the difference is of no significance. In a civil action, involving an issue of fact between private parties, the determination of that fact in a criminal prosecution by the people is not even evidence, much less a conclusive adjudication, of the fact. Hence the conviction of the petitioner on trial of the indictment for the murder of her mother would not be legal proof of the fact of the murder in this proceeding, and between these litigants. 1 Whart. Ev. § 776; Wells, Res Adj. § 420. In Riggs v. Palmer, although the defendant had been convicted of the murder, the issue of fact whether he committed the murder was tried over again before the referee, and was determined upon the proofs then produced. The essential' and the decisive fact in- the case, shown by the indictment, is that the petitioner is charged with the criminal destruction of the life, the expiration of which was the indispensable condition of her right to the possession and enjoyment of the fund in controversy. Livingston v. Tucker, 107 N. Y. 549, 550, 14 N. E. 443. If she murdered her mother, she is not entitled to the possession arid enjoyment of that fund. If she be innocent of the murder, she is entitled to such possession and enjoyment. Her right, therefore, cannot be adjudged until the determination of this issue of fact. The referee finds that -the legal title to the fund is in the petitioner, but this alone gives her no indefeasible right to the possession and enjoyment of it. In Ellerson v. Westcott, 148 N. Y. 149, 153, 42 N. E. 540, the allegation sought to be introduced into the pleading was that “the defendant had caused the death of the testator, to enable her to come into possession of the estate devised to her.” Assuming the fact, the court, per Andrews, C. J., speaking of its effect, said “that a court of 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, will, by forbidding the enforcement of the 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.” Until, 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 proceeding 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 be 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, Bes Adj. § 420. To the suggestion that some of the parties interested in the 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.  