¶1I am not convinced that the decision about to be rendered by this court as expressed in the prevailing opinion is not in accord with the decisions of the highest court of this State, yet the results' which necessarily follow from such decision are so extraordinary as to lead me to dissent in the hope that the Court of Appeals may reconsider the entire question and either modify the rule apparently enunciated, or else give it full force and effect and declare that those who obtain property by fraud, false representations or undue influence may know that they may not be questioned as to how they obtained such property, how it was transferred or where it is, provided they assert upon inquiry in regard to such matters that the answers to such interrogatories might tend to incriminate them. Mo case could better illustrate' the injustice of the rule which it is assumed has been adopted than the one at bar. In this case an executor brings *581an action to obtain possession of the property of which his testator died seized and which it is alleged the defendant obtained possession of unlawfully and by undue- influence. By this proceeding it is sought to be ascertained where the property left by the testator -is, its character.and extent. The' affidavit or petition alleges that all such facts are within the knowledge of the defendant, ■ he practically having controlled the actions of the decedent and had control of his property and securities for some years prior to his death. Inquiry is made as to the amount of such property received by him, what disposition was made and where the. same now is. The defendant refuses to' answer any of the questions propounded, upon the ground that such answers may tend to incriminate him because, as suggested, if it be true that such property was obtained • by him thus unlawfully, he was guilty of the crime of' larceny.
¶2The like suggestion would prevail, if sound, if the executor in this case had been asked to account for moneys or property received by him belonging to the estate of his testator. If he had converted such property to his own use o'r disposed of the. same in violation of law he would be guilty of a crime, and so would be excused from answering any questions in relation to the same. The like suggestion is applicable to an examination in supplementary ■proceedings, which from time immemorial have been regarded as a means of ascertaining what a judgment debtor has done with his property which it is believed should be applied in payment of his just debts. Such proceeding is founded upon the idea that the judgment debtor has fraudulently transferred his prbperty to avoid the payment of his just debts, and yet such action on his part is made a crime. If the' rule suggested in the prevailing opinion is to be adopted then all such judgment debtor need do in order to block investigation as to the disposition of his property is to refuse to answer any questions propounded because his answers might tend to incriminate him. In those cases-—-and as it seems to us clearly in the case at bar by section 142 of the Penal Code—it is provided that the answers given shall not be used in any civil or criminal proceeding against the judgment debtor, but the contention is that that is'not broad enough ; that in order that such information may be obtained it is necessary that there should be a statute broad enough to give absolute immunity to the person required to answer. If *582this is' the rule .to be adopted and generally Understood it will practically paralyze the -administration of justice.
¶3I have said enough to indicate the results which will inevitably follow from such rule, and as above suggested rto case can better illustrate the results which may follow than' the. ohe at bar. An executor seeks to recover possession of the property of' his testator which he alleges is unlawfully in the possession of another, and such other is excused under the rule' enunciated’ from answering any question as to how he came into the possession of such property or where it is, on the ground that the answers to such inquiries might tehd to incriminate him. ,
¶4The case at bar in and of itself is of comparatively little importt atice, but as I understand its import’ it means that no person holding property or funds unlawfully or in a fiduciary capacity can be compelled to disclose the nature of the possession of such property or its whereabouts or what disposition was made of the same to the knowledge of the person of whom inquiry is made, provided such person assumes- to say in answer to any sncli interrogatories, “ The answer might tend to incriminate me ; therefore, I refuse to-answer.” And, therefore, it is incompetent for any court or magistrate to in quire how or in what manner such answer might tend to incriminate. ' There should be no doubt as to the broad extent of the decision about to be rendered. There is hardly an act which a party may do, or atteinpt. to do, fraudulently with respect to property which is; not made a. crime, and yet by the decision about to be rendered no inquiry can be made from the party charged with such' fraud as to the acquisition or disposition of. such property, because the statutes have not yTet granted, to such fraudulent actor absolute and complete immunity. . . ' ■
¶5These considerations lead me to vote for an affirmance of the order appealed from.
¶6Order reversed, with ten dollars costs and'disbursements, and motion denied, with ten dollars costs..