
    SARAH SMITH v. JOHN SMITH.
    A voluntary conveyance by a man, on the eve of marriage, unknown to the intended wife, and made for the purpose of defeating the interest which she would acquire in his estate by the marriage, is fraudulent as against her.
    On the 21st of October, 1845, Sarah Smith, of Trenton, widow of Owen Smith, deceased, exhibited her bill, stating that her said late husband, previous to his marriage with her, was seized of three houses and lots in Trenton, and one other tract of land, of about fifty-six acres, in the township of Hamilton, in the county of Mercer. That, previous to her said marriage, she had a good situation as housekeeper, in the family of Mr. Charles Green, and was earning at the rate of §1.25 a week. That she liad previously worked for the said Owen Smith, and he was indebted to her, for wages, §98.50, to secure the payment of which, he gave her his promissory note, dated April 16th, 1844, by which he promised to pay her, by the name of Sarah Olden —that being her name previous to the said marriage — -or order, one year after date, $98.50, without defalcation or discount, for value received. That while the said Owen was addressing her, and shortly previous to her consenting to marry him, and as an inducement for her to do so, he told her that he had several houses and lots in Trenton, and a tract of fifty-six acres in said township of Hamilton, and that if she would marry him, she should always have a good home, and that he would not make any of his said property out of his hands, and, also, that he would pay her the amount of the said note, notwithstanding the marriage; and, after the marriage, he frequently told her that he never considered the said note as belonging to him, but as her own property, and that he would pay it.
    That, placing implicit confidence in the promises and assurances made to her by the said Owen previous to the marriage, and also knowing that ho was possessed of several houses and lots of land, and that he owned a store in Trenton, and was doing a good business, and possessed considerable personal property, she consented to marry him, though, at the time, his health was infirm, and he was about sixty years of age, and older than the complainant by twenty years.
    That she was married to the said Owen on the 31st of July, 1844, in Trenton, at two o’clock in the afternoon, and that, at the time of her said marriage, she had no knowledge, intimation, or suspicion that he had assigned, transferred, or in any way disposed of any of his real estate, and if she had been apprised of any such transfer, she would have declined and refused to marry him, inasmuch as such transfer was in direct violation of the promise of the said Owen to her, and in fraud of her marital rights.
    That some months after the marriage, she learned, for the first time, that the said Owen had, on the day of the marriage, conveyed away all his real estate.
    That, on the day of .the marriage, the said Owen conveyed a lot on the northwest side of Willow street, in Trenton, containing three hundred and eighty feet, and a lot in the township of Hamilton, county of Mercer, containing fifty-six acres, to John Smith and Joseph G. Brearley, for the consideration of $1, in trust for the use of the said Owen Smith for his life, and then, in trust, to receive the rents and profits, and pay them to his daughter, Mary Smith, during her life, and, after her death, .for his three sons, John Smith, Bernard Smith, and Peter Smith.
    That the said conveyance was made without her knowledge or consent, only two or three hours before the marriage, and was done with the intention of depriving her of her dower in the said-lands, in case she should survive her said husband, and that it was a fraud upon her marital rights. That it was done in a clandestine manner, and that the name of Joseph G. Brearley, a respectable citizen of Trenton, was inserted in the said deed of trust without his knowledge or consent, and for the purpose of giving a color of fairness to the transaction, and to deter her from contesting the validity of the transaction, or for some other sinister object, and that the said Brearley never accepted the said trust, nor acted under it, and knew nothing of his name having been inserted in the deed of trust, until the 9th of August, 1845, when he was informed of the fact by the agent of the complainant.
    That soon after the death of the said Owen, the said John Smith, Bernard Smith, Mary Smith and Peter Smith, under and by virtue of the said fraudulent deed of trust, entered into possession of the said freehold estates of the said Owen, and took possession of all the title deeds, evidences and writings relative thereto.
    That the house in Ohauneey street, Trenton, and the lot of land on which the same is, remained in possession of the said Owen at the time of his death j and that the house is occupied by Charles James and others, and rents for i§70.
    That she has applied to the said heirs~at-law to account for and pay to her one-third of the rents and profits of the said freehold estates since the death of the said Owen Smith, and to assign to her one-third of such freehold estates.
    That she has applied to John Smith, administrator, &e., of said Owen Smith, and that he has refused to pay her the amount of the said note.
    That she has, also, applied to the said heirs-at-law to assign to her dower in the said lots of land conveyed to the said John Smith and Joseph G. Brearley in trust as aforesaid, and to cancel and destroy the said deed of trust.
    The bill prays, among other things, that the defendants may answer whether the said John Smith and Joseph G. Brearley, or either of them, took possession of the premises described in the deed of trust, or of the said deed, and whether they paid the taxes thereon, or received the rents thereof, in the lifetime of the said Owen Smith j and that the defendants may discover and set forth a full and true description of such freehold premises j and that an account may be taken of the rents and profits of the said freehold estates since the death of the said Owen Smith ¡ and that one-third part thereof, arising not only from the lands described in said deed from the said Owen Smith to John Smith and Joseph G. Brearley, but also from the said house and lot in Chauncey street, and the lot of land on Willow street, may be paid to her; and that one-third of such freehold estate may be assigned to her for her dower, and she be let into the immediate possession and enjoyment thereof, and be decreed to hold the same for her life; and that the said John Smith, Mary Smith, Bernard Smith and Peter Smith may be decreed to produce all title deeds, evidences and writings relative to said freehold estates.
    On the 31st of March, 1846, a decree pro eonfesso was taken against the defendants, and an order made that the complainant produce documents and witnesses to substantiate and prove the allegations in the bill.
    On the 20th of June, 1846, John Smith put in his several answer.
    He admits that Owen Smith, before the marriage, was seized of the lands mentioned in the bill. He says he has no knowledge of the situation, employment or earnings of the complainant immediately before the marriage, but he admits that some time previous to the marriage she was in the employ of said Owen Smith and in his family, as a domestic. He admits that said Owen, before the marriage, gave hér the note mentioned in the bill, as he- believes, and says that the consideration of the said note may have been as set forth in the bill, but that he has no knowledge thereof, and can neither admit nor deny the same.
    He says he has no knowledge whatever of the misrepresentations alleged in the bill to have been made by said Owen to the complainant respecting the said note, nor of the inducements alleged to have been held out by him to induce the complainant to marry him, aud that he cannot answer as to his belief, or otherwise, touching the same, excepting that, from his knowledge of the complainant, and of her situation previous to the marriage, he believes that no very strong inducements were required to induce her to marry the said Owen Smith.
    He admits that the said Owen, previous to the marriage, was possessed of considerable, real estate, and owned a store, and possessed considerable personal property, and was doing a good business, in a small way ; and that it may be true, as stated in the bill, that knowing these circumstances, and thereby mainly induced thereto, she consented to marry the said Owen.
    He admits the marriage as stated in the bill, but whether at the time of the marriage she had any knowledge or suspicion of the conveyance of a part of his real estate previously made by the said Owen he does not know, and cannot answer as to his belief or otherwise.
    He admits that the said Owen, by deed dated July 30th, 1844, /conveyed a part of his real estate, that is to say, his house and iot on Willow street, and the farm of 56 acres, to him and Joseph G. Brearley, upon the trusts in the bill set forth.
    He says the said deed was duly acknowledged on the 31st of the same July, before a master in chancery, and on the 1st of August, in the said year, was recorded in tiio clerk’s office of Mercer county.
    He says he believes the said deed was executed very shortly before the marriage, but whether on the same day or the day " previous, he does not know, as he was not present at the making thereof; nor does he know whether the complainant or Joseph G. Brearley, one of the grantees named therein, was informed of the making thereof; nor whether the said Brearley accepted the said trust; but he respectfully insists that the ignorance of the trustee, or his refusal to accept the trust, caunot invalidate the trust, if the conveyance is otherwise lawful and proper.
    lie says he has no knowledge of any fraudulent intent or purpose whatever on the part of the said Owen in the execution of tlie said deed ; nor had he, this defendant, any fraudulent intent or purpose whatever in accepting the same.
    He says that a day or two previous to the marriage, the said Oweu informed him that he was soon to be married, and that previous to his marriage, lie was desirous of making some provision for his children, and especially for his daughter Mary, who then was and now is oí very weak and imbecile mind, utterly incapable of attending to business, or of maintaining or providing for herself, and asked this defendant if he would consent to act as trustee for his said daughter, Mary; to which this defendant consented. That the said deed was, after its execution, delivered to this defendant, and by him left at the clerk’s office to be recorded.
    He says that so far as he knows, and as he verily believes, the said deed was not made by the said Owen for the purpose of defrauding the complainant, or with any fraudulent intent or purpose whatever, but solely with the view of making a fair provision, out of his estate, for his children by a former marriage, and especially for his unfortunate daughter, in whose welfare he was deeply interested; and this defendant denies that any fraud was meditated or designed by him in accepting the said conveyance.
    He insists that inasmuch as the said conveyance was in favor of the children of the said Owen by a former marriage, as it included only a part of his estate, the said Owen still remaining seized and possessed of a considerable personal and real estate, and far more than is usually possessed by persons in the station of life of the complainant previous to her marriage, there is no just reason for impeaching the said deed as a fraud upon the marital rights of the complainant; and he insists that the said deed is legal, valid and binding j and that the said Owen had full power and just right, at law and in equity, to execute the samej and that the complainant has no right or title to dower in the premises conveyed by the said deed.
    He says the said Owen died on or about March 5th, 1845 ; and that on his death this defendant, by virtue of the said deed, entered into the possession of the premises conveyed thereby; and that he still holds the same by himself or his tenants, and applies the rents and profits thereof to the support and maintenance of the said Mary Smith, the cestui que trust in the said deed named ; and that he is also in the possession of the deeds and muniments of title to the said premises.
    He denies that the other heirs-at-law of the said Owen have entered into the possession of the said lands, or possessed themselves of the title papers relative thereto, except that the said Bernard Smith occupies the said farm as a tenant of this defendant, paying rent therefor.
    He admits that the children and heirs-at-law of the said Owen, the defendants in this cause, on the death of their father, became seized of the real estate whereof he died seized, being the said house and lot on Ohauncey street, and have taken possession ‘.hereof and of the deeds and muniments of title relative thereto.
    He admits tha.t the said house in Chauncey street rents for the sum mentioned in the bill; that, as administrator of the said Owen, his father, he has refused to pay to the complainant the amount of the note so given to her; he having been advised and believing that the said note was extinguished by the marriage, and that he could not, as administrator, pay the same without subjecting himself to personal liability therefor.
    He denies that he has attempted to deprive the complainant of her dower, to which, in consequence of her marriage with the said Owen Smith, she became justly entitled.
    The cause was brought to hearing on the pleadings and evidence.
    
      W. Hoisted, for the complainant.
    He cited Wash. C. C. Rep. 224 ; 5 John. Ch. 489; 2 Dana 14; 2 Leigh 30; 3 John. Ch. 517; 2 Vern. 17; 2 P. Wms. 674; 2 Bro. Ch. 345; 6 Cowen 67; 18 John. Rep. 426; 1 Roper on Husband and Wife 356 ; 1 Story’s Eq. Jur., § 629; Eq, Draftsman 650; Seaton’s Forms 184, 5 ; 2 Ch, Rep. 70, 81 ; Gilb. Lee. Pretor. 267.
    
      P. D. Vroom, for the defendants.
    He cited Reeve’s Dom. Relations 86, ch, 7; 2 Roper’s Husb. and Wife 76 ; 1 Ib. 163, 204 ; 2 Kent’s Com. 135, § 28 ; Jeremy’s Eq. Jur, 401; 1 Vern. 408 ; 2 P. Wms. 357 ; 1 Coxe 33; 1 Ves., Jr., 28; 1 Russel C. R. 485 ; 2 Ch. Rep. 42 ; 2 Freeman 29; 2 P. Wms. 535 ; 1 Atk 265 ; Cowper 705 ; 1 Atk. 158 ; 2 Ves. 264 ; 1 Fonbl. Eq. 268 ; 2 Story’s Eq. 271.
   The Chancellor.

On the day of the marriage bo i,ween the; complainant and her late husband, and just before the marriage, he, without the knowledge of the intended wife, for the consideration of one dollar, conveyed certain real estate to trustees, in trust for his own use during his life, and after his death, in trust to receive the rents and pay them to his daughter Mary, a daughter by a former wife, during her life, and after her death in trust for his three sons.

I cannot doubt, on the evidence in the case, that the object of the conveyance was to defeat the complainant of the right she would acquire in his estate by the marriage. The other ground or reason now set up for the making of the conveyance, namely, the providing for his imbecile daughter after his death, was not, it appears to me, the real motive.

I am of opinión that a voluntary conveyance by a man, on the eve of marriage, unknown to the intended wife, and made for the purpose of defeating the interest which she would acquire in his estate by the marriage, is fraudulent as against her. I see no sound distinction between this case and the like conveyance by a woman under like circumstances.

' Decree for complainant.  