54 How. Pr. 228 | N.Y. Sup. Ct. | 1875
This cause must be disposed of upon the evidence taken upon the trial of issues of fact, by answering the questions found in the order settling the issues.
The first question must be answered in the affimative.
It amply appears, by the evidence, that the instrument of 8th of October, 1862, read in evidence and referred to in the first question, was executed, signed, sealed and left with the grantee, Cornelia V. Pomeroy. The presumptions arising upon the production of the paper and proof of its being signed by George, concur with the other evidence and make out its execution. The fact that the grantee kept it a secret and known only to herself and the dead scrivener for twelve years after its execution, and allowed the plainiff to act in the belief that no such paper existed, are not sufficient to over
The paper, in terms, is broad enough to convey all the interest which George had in and to the real and personal estate of his father. Indeed,.no question in respect to it was made upon the trial.
II. The second question is, “ Was such transfer and assignment executed and delivered upon and for a good and valuable consideration ? ”
The evidence here is found to consist of the seal upon the paper, the recital of “ natural love and affection.” Ho other consideration is stated, none other was proven upon the trial. The rule is well settled that where one is stated another cannot be shown (Schermerhorn agt. Vanderheyden, 1 John., 139; 2 Peere Wms., 203; 1 Vesey, 127). There was no proof to show any pecuniary or money consideration passing from the grantee to the grantor. The answer must, therefore, be taken to affirm only such consideration as the seal and paper upon their production import (22 Barb., 97; 3 R. S. [5th ed.], 158).
III. “Was such transfer and assignment executed and delivered by or through any fraud on the part of the parties thereto or either of them ? ”
The question calls for a consideration of the evidence before the court, in two respects: 1. Was the defendant, Cornelia T., guilty of any fraud in taking such an instrument from her son % The evidence does not establish any fraudulent misrepresentation made by her, nor that for selfish designs . and puposes, she obtained the execution of the paper, nor does it disclose any facts showing that she made a careful statement to her son of the condition, extent and value of his interest in the estate then in her hands as cotrustee with Theodore. True, it does appear that George had some knowledge of the extent of the personal property of his
But there is another aspect to the case, important to be considered here, in determining the rights of the plaintiff as affected by the instrument of 8th of October, 1862, if it is allowed to stand. .
The plaintiff was then affianced to George Pomeroy, and seventy-seven days thereafter, became his wife and is now his widow. It appears that George did not inform his intended of such instrument, nor did he, in his lifetime, inform her of it. The grantee withheld from the plaintiff all knowledge, thereof until 1874. The plaintiff’s right of dower in the real estate would be cut off if the instrument was upheld. It is now well settled in this country, and in this state, that volun
The case arising in the city of New York, of Youngs agt. Carter (50 How., 410), decided by Van Vorst, J., is entitled to respect, and the principles laid down there must be accepted in courts until they shall be examined and reversed by an appellate court (See, also, Baker agt. Chase, 6 Hill, 482; 4 B. Monroe, 215; 14 Vermont, 167; 2 Halstead [N. J.], 515; 4 Mich., 230; 5 John. Ch., 482; 4 Wash. C. C., 224; Russ, 485).
The concealment of the existence of the papers, by George, during his seven years of married life, his statements that the real estate would ultimately be of value to his family, and the sedulous withholding of all knowledge thereof, by the grantee, for twelve years, help, very strongly, to the conclusion that it was executed to prevent the plaintiff from acquiring an inchoate or active interest in the property of his father’s estate, so devised to him by his father’s will.
The pecuniary condition of the mother was fair at the time of its execution; certainly, she did not need the voluntary conveyance, by her son, to maintain herself in comfort, and her circumstances do not furnish a full and satisfactory proof of the motive which actuated him to execute and her to receive the instrument.
It has been said that the law gives dower as a means of support. If the plaintiff is allowed, in this case, to take dower in the real estate, she only comes within the rule which, in its general application, must be commended as in furtherance of justice.
Judgment ordered accordingly.