53 How. Pr. 97 | N.Y. Sup. Ct. | 1876
At the time the plaintiff and her husband contracted to marry, he, the intended husband, was seized of an estate of inheritance in the land which he conveyed to his children a few days thereafter. Had he continued seized until the marriage, the plaintiff would, by virtue of the marriage and the seizin of her husband, have acquired an inchoate right of dower in all of said lands.
It is alleged by the plaintiff that these deeds were executed and delivered on the eve of the contemplated marriage, without consideration, and for the sole purpose, and with the intent on the part of the grantor and the grantees in the deeds, of defeating the plaintiff’s dower right in the real estate of the grantor.
That the only object and purpose of the conveyances was to prevent the plaintiff’s inchoate dower right attaching to these lands. This I do not understand the defendants to controvert. But the defendants insist: First, that these conveyances were made to carry into effect a mutual understanding hád by the plaintiff and the grantor in the deeds, her then intended husband, that the plaintiff should have no part of or interest in his property by reason of the marriage; that the
If this position is supported by the evidence, then the plaintiff can have no relief; this mutual agreement, if it existed, would not have operated to deprive the plaintiff of her inchoate dower interest in the land, had the husband remained seized to the time of the marriage ; but if his alienation of the land prior to the marriage was with her consent or was a means adopted by the husband of carrying into effect a mutual agreement had with the plaintiff, the plaintiff cannot be said to have been defrauded thereby. In support of this position the husband testifies that during the time the subject of the marriage was being discussed, his property was talked about on several occasions; the last one was at the time when the agreement to marry was finally made; and upon these occasions he says he stated tó the plaintiff that he objected to marrying on the ground that he did not want to encumber his property by marriage; that he had property to the amount of about $25,000 and that he wanted it understood that in case they married, his property should go to his children and her property should go to hers; that she replied to these statements, that she had about $20,000 in property, and that it would be very wrong for her to take any of his property away from his children; that she wanted her children to have hers and his children to have his; that this was the purport of their conversation on this subject at the time the agreement to marry was made, and on more than one occasion prior to that time, when the question of marriage was being considered by them.
The plaintiff denies having these conversations or any con
Second. It is insisted that the statute awards dower to the widow, not to the wife, and that during the life of the husband the wife has no such interest in his lands as the law will protect. All elementary writers, treating of dower, speak of it as an inchoate initiate right, given to the wife by the marriage and seizin of her husband during coverture. The death of "the husband does not give this right. Upon the death of the husband, the wife surviving, she becomes entitled to possess that which she acquired by the marriage and seizin of her husband.
Third. It is further urged by the learned counsel for the defendants that if the plaintiff had a cause of action it accrued upon the execution and delivery of the deeds by Jeptha W., of the lands in question, and insists that the agreement to marry gave her no interest whatever in her intended husband’s real estate. That dower is given by the statute and the plaintiff, is entitled to no greater rights than the statute gives her; and the husband not having been seized of an estate of inheritance during the marriage, the wife has acquired no interest, inchoate or otherwise, and she cannot be said to be defrauded, of that to which she never had any right or claim whatever.
I think the counsel’s argument does not meet the real question presented. The parties not only agreed to marry but they did actually marry, in pursuance of the agreement, and the question now presented is (assuming that the conveyances were made on the eve of the marriage to defraud the wife of the interest in the land which she would have acquired by the marriage), will a court of equity entertain her action for the conservation of the right which she has lost, or may lose, by the fraudulent acts of the defendants, and grant her such relief as she may be equitably entitled to. Had the husband died after the marriage, leaving the plaintiff surviving, the title to the lands remaining in his grantees, could the plaintiff have recovered her dower in these lands in a court of
Swaine agt. Perine (5 Johns. Ch. R., 482) was a bill in equity for dower. The answer alleged that the husband was not seized during coverture. It appeared in proof. that the husband, on the day of the marriage, deeded the premises to his daughter without consideration. The deed was kept secret from his wife. The deed was held by the chancellor to be fraudulent and void as against the plaintiff’s claim for dower. In Beeves’ Domestic Belations (page 103, n), it is said: “A conveyance by the husband just before marriage for the mere purpose of defeating dower, does not defeat it ” (Cranson agt. Cranson, 4 Mich., 230).
If the husband aliens the land on the day of the marriage the wife will still be entitled to dower; and if before the marriage, but in contemplation of it, he should make a fraudulent conveyance, whether absolute or in mortgage, for the purpose of defeating tiñe right of dower, it will be no bar to her right (Greenl. Cruise on Real Prop., vol. 1, page 172, cmd cases there cited).
By the statutes of Vermont the widow has dower in the lands of which the husband dies seized. In the case of Thayer agt. Thayer (14 Vt. R., 107) the facts were as follows : The husband, during his last sickness and in expectation of death, conveyed all his real estate to his children by a former marriage. There was no consideration for the conveyance but that of natural love and affection, and it was made to defeat the wife of her dower.
The question was, whether such conveyance operated to defeat the wife of her dower % The chancellor decided that such conveyance was void as against the wife, and set aside the deed. The case was taken to the supreme court and Bennett, J., in delivering the opinion of the court, held that the wife had, in the lifetime of her husband, such rights as should be recognized, protected and enforced in a court of equity. That the attempt to elude those rights in the man
In a court of law for dower the court require that the seizin of the husband should be established, and will not look beyond the actual conveyance made by the husband to see whether it was made to defraud the wife of dower in his estate; but equity looks upon the transaction in a different light, and when the rights of purchasers in good faith are not involved holds the fraudulent conveyance as a nullity as to the wife’s claim to dower, and would, of course, set it aside upon a proper application ( Willard’s Eq. Jur., 696).
From the examination I have been able to make I have no doubt of the plaintiff’s right to dower in the lands in question, in the event she survives her husband, the rights of bona fide purchasers not intervening.
I am of the opinion that the plaintiff is not required to wait before bringing her action until her inchoate right becomes absolute by the death of her husband. As we have seen, the inchoate dower right is protected by the law.
It is that right of which the plaintiff is sought to be deprived by the acts of the defendants, and this action is brought to maintain and protect that right. There Vould be no reason nor justice in compelling the plaintiff to wait before bringing her action until the event of her inchoate dower right becoming absolute. In the meantime the rights of bona fide purchasers from the fraudulent grantees of the husband may intervene and defeat the action altogether.
It is the present injury the plaintiff has sustained in the loss of her inchoate right in the lands in question that entitles her to maintain her present action. The plaintiff must have judgment for the relief demanded, with costs.