¶1dissenting. The defendant obtained from the plaintiff a transfer of $8,000 on mortgages by virtue of an allegation that they intended to contest a will which the mother of all the parties had made in favor of plaintiff, and her sister; that such contest was to be based on the insanity of the mother at the date of the execution of the will, and that they, the defendants, had been told by the family physician that testatrix was insane at *328that time. The testatrix was not insane, and the doctor had not said she was. The transfer was made. No objections to the probate were filed, and the will was proven. The plaintiff, since the probate, has discovered the falsehood asserted, and seeks to recover back her property as having been procured by fraud. Two objections are made to her recovery.
¶2The first is that the finding of the court below should be reversed as against evidence.
¶3There was but ofie witness sworn as to the allegation made by the defendant as to what the doctor had said about the insanity of the testatrix, and that was the plaintiff. Neither defendant was sworn. It is admitted by the answer that the defendants did allege insanity as the basis of their proposed contest, but neither defendant denied having told plaintiff that the doctor had said to them or one of them, that she was insane. In the absence of such denial, I do not see how an appellate court could disturb a finding.
¶4The second objection is, assuming the false statement, that the will having been admitted to probate, it is not now possible to reinstate the parties in the position they were in before the transfer, and that therefore plaintiff Must fail.
¶5The principle is well settled where property is acquired by fraud, the party seeking to recover back the fraudulently-acquired property, must give up all benefits of the bargain. In this case, under the evidence, the plaintiff has obtained nothing. The testatrix was not insane, and the doctor never said she was. The contest threatened, was itself a pretense based upon falsehood.
¶6The judgment should be affirmed, with costs.
¶7Judgment reversed and new trial ordered.