The opinion
Concurring Opinion.
Howard, J.
— I concur in the decision reached by the court in this case. I think the record shows that the testator, in devising his property to his wife, did not thereby create a trust in favor of any of his children; but that he gave his property, without reservation, to her, relying upon her judgment and discretion to do with it as might seem best. He indicated to her w'hat he thought would be best; but the discretion to act in the matter was wholly left to her. It is evident that he was not clear in his own mind a,s to what should be done; the future might make that plain, and he left the matter in her hands, asking her, as she promised, to do what should be right when the time came for her to act. That she might be able to exercise this discretion, the property was given absolutely to her. There was no trust imposed upon it.
In so far, however, if at all, as the opinion holds, that one who, without consideration paid, receives title to real estate, under promise to re convey, may afterwards refuse to convey, and justify such refusal under cover of the statute against frauds, I must dissent. There is a well recognized exception to the application of the statute, namely, that one cannot seek to justify his own fraud by a plea of the statute against fraud. A court of equity will not hear him make such a plea. Attempts to retain possession of property received with a promise to reconvey, will also be overthrown, on the ground that the convey *210 anee was without consideration. In any event, a court of equity will seek to do justice within the lines of law, and will not sanction so gross a provision of a statute enacted to prevent injustice. See Baird v. Baird (N. Y.), 40 N. E. Rep. 222; Davis v. Whitehead, L. R. (1894), 2 Ch. Div. 133. Also, 6 Chicago. Law Jour., 562, 720.