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The Green Bag

tion without going the full length of denying all effect to the statute. The question is a momentous one and involves far more than the particular problem, since it concerns nothing less than the whole matter of statutory interpretation in general. And even be yond that, it affects the larger problem as to how nearly the courts are going to meet and realize the growing public demand for a legal system, and admin istration of it, that shall get substantial justice. But equity lawyers may object, that to apply the constructive trust in this case is out of line with the true nature of a constructive trust and of equitable relief in general. First, there is the alleged difficulty of finding cestui que trust. But let us not expect one made so by any conventional arrangement. A constructive trust arises, necessarily, by intendment of law, and cestui is such by reason of his unvoluntary rela tion to the trustee and to the property. It is enough if he be in equity entitled to the property. The other heirs, de visees, or legatees, are so entitled. Again, it may be urged that equity seeks to protect individual rights only, while here it is sought to be used, primarily, in the interest of the public. But equity had its origin in public policy, and is today often invoked in that behalf. For example, the recent use of receiverships of monopolistic cor porations, while ostensibly to preserve their solvency, is really designed to effect their dissolution. It is even said that to require the murderer "to surrender his ill-gotten title," directly the statute gives it him, is only a polite way of judicially nulli fying the statute. But it is really only interpreting and applying it, It is idle to say, "Let the legislature mend the defect." The trouble is, that the "de

fect" will never recur, in that jurisdiction, as a live problem with respect to that statute; but will crop out as some other discrepancy in connection with some other law. The fact is, that no legislature can effectively anticipate anomalies. We must give the court almost carte blanche to deal with them. In short, our judges, in such cases, must be magistrates first, and jurists after wards. If we do not want the assassin to take we must choose between withholding from him even the legal title, and let ting him take the title but holding him as trustee. To justify withholding the legal title, you must say that he is not an heir. Why? Because he slew his ancestor. But the law does not recog nize any such qualifications in its law of descent. This, then, is "judicial legis lation" with a vengeance. The con structive trust, on the contrary, respects the statute by allowing the title to pass, while it also recognizes the equities that arise simultaneously. The court is bound by the statute; but, it is no less bound by equities that it did not create and cannot control. There is, therefore, less of "judicial legislation" in the construc tive trust theory than in the theory that the murderer is not an heir at all. If it be said that the equity arises before the passage of the legal title, and, so, ought to prevent the title's passing, the answer is, that an equity may be strong enough to accompany the legal title as a sort of "rider," and yet not vigorous enough to stop the passage of that title. Two collateral advantages would flow from embracing the theory of the con structive trust in this instance. First, it would help to make our legal system more satisfactory to the layman by increasing its flexibility, and making it more adaptable to the requirements of the given case. For, once the courts