16 A.2d 47 | Pa. | 1940
This appeal is from a decree declaring that a conveyance of real property made by Oliver Kirk to his two sons (children by his first marriage) "is in fraud of the marital rights of Emily A. Kirk, widow of said Oliver Kirk, and is therefore void as to her."
Oliver Kirk, aged 69, married plaintiff, aged 53, on February 16, 1935, having become engaged to her November 20, 1934. He died October 29, 1937. At the time of the engagement Mrs. Kirk knew of Mr. Kirk's ownership of the real estate in question; she did not know, until after the marriage, that on February 13, 1935, three days before the marriage, Mr. Kirk conveyed the property to his two sons. One of them drew the deed which stated the consideration to be "natural love and affection." The court held that a voluntary conveyance by a party to a marriage treaty "is prima facie in fraud of the marital rights of the other party to the treaty," and as "The only consideration was natural love and affection, and as defendants have failed to meet the burden cast upon them of showing that the conveyance was made with the knowledge of the plaintiff, it must be held to have been in fraud of her marital rights." The decree is founded on two facts: 1, that the conveyance was voluntary and, 2, that plaintiff did not know of it; that those facts established the fraud for which the conveyance was set aside.
The learned court relied on Duncan's Appeal,
The principle applied was that the fact of conveyance, by one of the parties to a treaty of marriage without the knowledge of the other, was evidence of fraud, sufficient, unless rebutted, to avoid the conveyance. This doctrine was first announced in England where it was applied to transfers by the intended wife which would defeat the husband's absolute right to her personalty and his vested interest in her real estate at common law as an incident of marriage.2 It is not the law today as declared in cases to which we shall refer. *206
The Married Women's Property Act of 1893, P. L. 344, as amended,
The modern rule as to personal property has been considered in a number of cases. It was discussed at length in Beirne v.Continental-Equitable Trust Co.,
Under modern statutes, a wife still has a contingent interest in her husband's real estate similar to inchoate dower at common law. It was an interest which the English courts considered too remote for antenuptial protection; it cannot be asserted against the husband's creditors and vests only if the wife survives; it is not, in short, such a present and certain interest as, under the English cases,3 would ordinarily constitute the consideration for marital obligations. There is no valid reason, therefore, why the rule of presumed fraud should apply to antenuptial conveyances of real estate any more than it can apply to gifts of personalty as to which it has been rejected.
Either spouse may challenge, as fraudulent, a conveyance of real estate or a gift of personal property made during a treaty of marriage, but mere proof of *208 the conveyance or gift, without the knowledge of the other party, does not constitute a prima facie case of fraudulent transfer.4 In addition, it is necessary for the party alleging it to prove the fraud, or "actual fraud," to use an expression common in the decisions. Mere conjecture or suspicion does not take the place of evidence. We can therefore not sustain the decision that proof of the conveyance without plaintiff's knowledge entitled her to a decree.
There is evidence that the grantees, for years prior to 1929, contributed funds to their parents which went to the maintenance of the house conveyed, and that Mr. Kirk, dying intestate, left other property, though its value does not fully appear. The order we shall make will afford opportunity to the parties to amplify these facts, if possible, by additional evidence, and also to produce any other competent evidence that may be available. For example, can it be shown that Mr. Kirk made any representation to plaintiff of his existing property, what the representation was, and whether it was relied on? Did he, in making the conveyance, intend to satisfy an existing obligation to his grantees (compare Sutch's Estate (No. 1),
The second, third, fourth and fifth assignments of error are sustained.
The decree is reversed and a new trial is awarded; costs to abide the event.