Page:The Green Bag (1889–1914), Volume 21.pdf/362

 A New Use for the Constructive Trust I am not so sure that the results of applying that rule are so certain. They are liable to be as disastrous to sound justice and equity as were the results to the occupant of the Procrustean bed, which was never accommodated to suit the length of the individual. Nor is the hard simplicity of the rule an un mixed benefit; for the attainment of justice, rather than the convenience of the court, ought to be the touchstone whereby to determine whether or not a given doctrine or rule should be adopted. Still, the strict rule, as we have said before, goes upon the theory that when the legislature has spoken, it becomes the court to be silent. It is less liable to incur the charge of "judi cial legislation" because it ventures less and, so, risks less in the interests of justice;—and, I may add, it accom plishes less. It treats the word of the legislature as the final and sufficient criterion of what public policy requires. None of the courts seem to have seen that there was a middle ground wherein they could have permitted the statute to operate, and thus let the murderer take the legal title but compel him to hold as a trustee for other heirs. This expedient would have escaped both the charge of judicial legislation and the iniquity of letting the wrong-doer keep the fruits of his crime. Of course, where the murderer had sold the property to an innocent purchaser for value without notice, the purchaser would necessarily take the property free from equities, and in preference to other heirs, just like any other purchaser in good faith from a trustee. The decided prepondderance of cases that permit the mur derer to take absolutely shows how reluctant are the courts to take any liberties with statutory provisions. The equitable solution, therefore, would seem to be a necessity.

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Ellerson v. Westcott seems to be the only case in which equitable relief is even hinted at; and, yet, even in that case, the court does not openly propose the expedient of establishing a con structive trust. Mr. George P. Costigan, Jr., and Mr. Roscoe Pound were among the first, if not the first, lawyers and publicists to suggest the trust speci fically as a way out of the difficulty. Mr. Costigan says that "it is called for by sound public policy."1 Mr. Pound, participating in the same discussion, says: "The overlooking of the equitable solution of these cases ... is a strik ing instance of what I have ventured to call the decadence of equity. . . ."2 Perry v. Strawbridge shows that the majority view is by no means satis factory; and that there is a strong desire upon the part of the courts themselves to avoid an iniquitous and abhorrent result even at the risk of incurring the stigma of "judicial legislation." The Missouri holding is all the more signifi cant when it is recalled that the mur derer himself died hy his own hand three hours after he had killed his wife; so that he would have reaped no benefit himself but would have been only the conduit through which the property descended to his heirs, who were inno cent. Nor is that all. The court re fused to let him take notwithstanding their avowed conviction that the par ticular statute under which he would have taken "was for the very purpose of making provision for a husband in the event he was not entitled to curtesy," which was the precise situation of the murderer in that case.3 Surely it is preferable to adopt a middle course, which will prevent the murderer from carrying away the fruits of assassina1 Symposium in "Green Bag," July. 1906. ' Cf. Missouri Statute of Descent, Sec. 2938, Rev. St. 1899.
 * Idem. See also 5 Columbta Law Review 20.