one third. It is true that in cases where the decedent dies intestate, and where no issue survives, the widow is entitled to her distributive share in the estate of the decedent free from debts, and that she takes the balance of her share, above the one third, to make up the one half to which she would then be entitled under § 3379 of the Code, by inheritance.

In some of the early cases, as to this one sixth to which she was entitled, we said that she took the said portion as "heir of her husband.' The real meaning and application of this term, however, as applied to such share of the estate of the decedent, were explained and made clear in Schultz v. Schultz, 183 Iowa, 920, 167 N. W. 674, wherein we said: "If no disposition is made by the husband during his lifetime, by will or otherwise, of the one sixth, and there are no debts to which it may be subjected, she takes the half, not as heir, but by virtue of the statute referred to. These cases afford no support to the plaintiff's claim that this widow could take as heir. Wilcke v. Wilcke, 102 Iowa, 173, 71 N. W. 201, Hays v. Marsh, 123 Iowa, 81, 98 N. W. 604, and Wild v. Toms, 123 Iowa, 747, 99 N. W. 700, though saying in words that she takes as heir, simply held that the one third that she takes under the first statute is all that is protected against the action of the husband, and that the one sixth, going to make the half, does not have such protection. But it is clear that, under either, the third or half, whichever she gets, she takes not as heir, but by virtue of the statute. She takes a third of the real estate of which her husband was the legal or equitable owner during marriage, absolutely free from any right, on his part, to dispose of or in any way impair that right; while the one sixth, which goes to make up the half, she takes also under statute, but subject to the right of the husband, during his lifetime, to make disposition of it, and subject to debts, charges, etc. We think there was no intention in

any of these decisions to hold, as a general proposition, that the widow is, in any sense, the heir of her husband."

The precise question presented in this case has, so far as we are advised, never been determined by this court. In Clark v. Griffith, 4 Iowa, 405, the question of whether or not, under such circumstances, the widow would be entitled to any portion of the estate remaining undisposed of by the will was suggested, but not decided. We did say, however, in said case, in discussing the statute as it then existed, giving to the wife one half of the estate of a decedent who died intestate and without issue: "We think it is intended to refer primarily to the estate of a person who dies intestate, without issue. Where the estate, or part of it, is disposed of by will, the widow is not entitled to one half. The husband, though dying without issue, may by his will deprive his wife of all interest in his estate, except her dower as allowed by law."

Will-intestacy

tion.

In this case there is a will, and by virtue of her election the widow takes her one third, or distributive share, in the entire estate of the decedent. All bequests under the will are subject to this right. By virtue of Code, § 3270, a portion of one bequest is ineffectual, and a part of said bequest is undisposed of by the will. The decedent, however, was not "an intestate," within the -excessive legmeaning of § 3379, acy to corporaeven though a portion of his estate, by reason of the statute, cannot pass to the beneficiary named in the terms of his will. If the decedent had died. intestate, there can be no question that under § 3379 the widow would have been entitled to the entire estate above debts and expenses, to the amount of $7,500, and one half of the excess, but, as we view it, that statute has no application to the situation in this case. The decedent did not die intestate. The widow renounced the will and elect

to

This suit in equity comes before us for decision by reservation of a single justice upon the bill and demurrer. The allegations of the bill are admitted to be true for the purposes of this discussion. Briefly summarized, the allegations of the bill are that the plaintiff was the proprietor of a hotel in Boston and the defendant an attorney at law; that the defendant in October, 1916, conspired with one Corcoran cheat and defraud the plaintiff, and in execution thereof the defendant informed the plaintiff that complaint had been made to the district attorney of the Suffolk district, charging the plaintiff as proprietor of his hotel with having suffered the wife of the complainant to resort to his hotel for purposes of unlawful sexual intercourse; that the defendant knew all the facts relating to the matter, and that evidence was about to be presented to the grand jury for Suffolk county and would result in an indictment against the plaintiff; that the plaintiff thereupon retained the defendant to act as attorney for him and to take such steps as seemed to the defendant expedient; that, pretending to act as attorney for the plaintiff, the defendant represented to him that Corcoran, the attorney of the injured husband, demanded $35,000 in consideration of the withdrawal of his complaint; that the defendant advised the plaintiff to comply with that demand; that the plaintiff, re

lying upon the pretended advice of the defendant, paid to him that sum of money upon the promise of the defendant to pay the same to Corcoran for withdrawing the complaint and for release and discharge of all claims of the complainant against the plaintiff; that these representations by the defendant were false and were pretenses fraudulently made for the purpose of extorting money from the plaintiff. A second series of allegations of the same general nature, omitting reference to Corcoran, relate to the extortion by the defendant from the plaintiff in July, 1917, of the sum of $15,000. The allegations in substance are that the representations by the defendant were false and fraudulent and that the plaintiff had committed no such crime.

The prayers of the bill are for an accounting as to the two sums of money alleged to have been paid to the defendant and for an order for payment to the plaintiff of the amount found to be due and for general relief.

The grounds of demurrer are (1) want of equity, (2) plain, adequate, and complete remedy at law, (3) that the plaintiff does not come into court with clean hands, (4) that the bill shows that the sums of money were paid to stifle a criminal prosecution against the plaintiff, and (5) that the bill shows that the several sums of money were paid in furtherance of an unlawful agreement to compound a felony.

The last three grounds of demurrer may be grouped together for discussion because they all rest upon the illegal elements in the relations between the defendant and plaintiff in which the latter participated according to the allegations of the bill.

It is a doctrine so well settled as not to be open to discussion that courts will not aid in the enforcement, in the enforcement, relief against. or afford relief

Contract-illegal

against the evil consequences, of an illegal or immoral contract. One branch of that general principle is that a private agreement, made in

Equity-contract for suppression of criminal pros

ecution.

consideration of the suppression of a criminal prosecution, will neither be enforced nor abrogated by a court of equity. That doctrine is founded upon the public policy that the course of justice cannot be defeated for the benefit of an individual. Worcester v. Eaton, 11 Mass. 368; Jones v. Rice, 18 Pick. 440, 29 Am. Dec. 612; Atwood v. Fisk, 101 Mass. 363, 100 Am. Dec. 124; Taylor v. Jaques, 106 Mass. 291; Partridge v. Hood, 120 Mass. 403, 21 Am. Rep. 524; Gorham v. Keyes, 137 Mass. 583 Traders' Nat. Bank v. Steere, 165 Mass. 389, 43 N. E. 187. The general doctrine is subject to a qualification or exception as widely recognized and as thoroughly established as is the rule itself. That exception is that, where the parties

-relief of per

delicto.

are not in equal

sons not in pari fault as to the illegal element of the contract, or, to use the phrase of the maxim, are not in pari delicto, and where there are elements of public policy more outraged by the conduct of one than of the other, then relief in equity may be granted to the less guilty.

The exception is stated in 1 Story, Eq. Jur. 14th ed. § 423, in these words: "And indeed, in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be."

This exception was recognized in the first case which arose in this commonwealth for the application

of the rule. Worcester v. Eaton, 11 Mass. 368, where at 376 it was said in substance that where the parties are in pari delicto, there could be no relief, but that "a distinction is maintained between those cases in which one of the parties has, by an illegal act, taken advantage of and oppressed the other, and those in which it is not possible to distinguish between the parties as to the degree of their criminality."

Reference is made to the recovery of usurious interest as an example where the law affords relief, though both parties join in the wrong. In that case the general principle was applied.

In White v. Franklin Bank, 22 Pick. 181, however, the exception was applied. That was a case where a contract by a bank for the payment of money at a future day certain was prohibited. But it was held that, notwithstanding the prohibition, the person who made the contract with the bank could recover back his deposit from the bank. This exception to the general rule was followed in Atlas Bank v. Nahant Bank, 3 Met. 581, where similar facts were in issue. Bryant v. Peck & W. Co. 154 Mass. 460, 28 N. E. 678.

The exception was applied again in Lowell v. Boston & L. R. Corp. 23 Pick. 24, 34 Am. Dec. 33, where it was held that a town compelled to pay double indemnity to a traveler injured by a defect in the highway might recover single damages only against a railroad through whose negligence the defective condition of the highway arose. This principle was recognized and a large number of supporting authorities were cited in Lowell v. Glidden, 159 Mass. 317, 319, 34 N. E. 459.

To

the same effect are Holyoke v. Hadley Water Power Co. 174 Mass. 424, 54 N. E. 889, and Boston v. Coon, 175 Mass. 283, 56 N. E. 287. Another case of the application of the exception is Simpson v. Mercer, 144 Mass. 413, 11 N. E. 720, where the wrong of a constable in attaching property was involved. Although