
    Alicia Maud Bliss, App’lt, v. Grace F. West et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Husband and wife—Conveyance before marriage—Trust.
    Plaintiff was married in November, 1887, to one B., who represented that he owned certain real estate. Prior to his engagement to plaintiff and, so far as appears, before he knew her, he had conveyed the property in trust to apply the income to his use for life and for the lives of liis children, with remainder to said children or their heirs, with power to make improvements, etc. The trustee acknowledged the deeds of trust and they were recorded, but were retained by B., who made improvements, paid taxes and assessments and collected the rents. Held, that said deeds, having preceded the engagement, were not fraudulent as depriving plaintiff of her dower in the property; that these facts were sufficient to support an inference of a delivery of the deeds; that the continued control of the property by B. did not rebut that inference and that the trusts were valid.
    Appeal from judgment on trial at the special term.
    . F. IT. Cowdrey, for app’lt; William W. JenTcs, for resp’ts.
   Daniels, J.

The plaintiff is the widow of Charles Bliss, who departed this life on the 23rd of January, 1889. In September, 1887, he, proposed to marry the plaintiff and represented himself to be the owner of two parcels of land in the city of New York, one of which was known as 435 West Thirtieth street and the other as 235 West Fifty-first street, in that city. Both parcels had been improved, but the former was subject to a mortgage securing the payment of the sum of $15,000. The plaintiff accepted this proposal of marriage and intermarried with him on the 9th of November following. In May, 1887, the plaintiff commenced residing in the house on the Fifty-first street lot, in which the deceased also resided. And he executed and delivered to her a five years’ lease of the other house and lot, dated on the 1st of May, 1887, but not acknowledged until the 23d of September following. In the fall of 1888 he entered into a contract for the improvement of the premises on Fifty-first street and during the marriage two policies of insurance, previously obtained and continued, insured the property to him, and he paid the taxes. At his decease he left a will by which he gave all his property to the plaintiff after the payment of his debts. This will contained the statement that he had already provided for his three children, by an insurance on his life and by trust deeds made on the 10th of March, 1887.

These deeds were three in number, and each conveyed one-third of these parcels of land to Grace F. West in trust to receive the rente and profits of the premises and apply so much as might be necessary to taking care of, insuring and keeping in repair the buildings thereon; and in case it should be deemed necessary by her, then to change, alter, remodel and otherwise improve the. buildings, after obtaining the consent of the grantor, and the concurrence of the beneficiary, in writing, and to apply the residue of the rents and profits to the use of the grantor during his life, and after that for the use of his daughter Henrietta C. Bliss, until Charlotte' Bliss, another daughter, attained the age of twenty-one years. Other directions were given for the disposition of the rents and profits in case of the decease of the beneficiary before the attainment of the age of twenty-one years of Charlotte Bliss, and for the final disposition of the remainder after the expiration of the trust estate, by which alone his children and heirs were to be benefited. The other two deeds contained similar directions, but primarily after his own decease for the benefit of each of his other two daughters, and after the expiration of the trust estates to be disposed of in a similar manner as the one-third mentioned in the deed which has first been referred to. These deeds were each executed and acknowledged by the trustee, who accepted the future estates thereby granted, and the trusts created and declared, and she covenanted faithfully to perform the same. And they were recorded on the 11th day of March, 1887.

From these facts it was inferred by the court at the trial that the deeds had been delivered to the trustee at the time when they were executed. And the facts were sufficient to support that inference, although the deeds were in the safe of the grantor at the time of his decease. Their execution and acknowledgment by the trustee and the subsequent record made of them evince the intention to have been to vest the trustee with the trust estates for the objects to be attained by the creation of the trusts. What appears to have transpired fully warrants this conclusion. Munoz v. Wilson, 111 N. Y., 295, 303-5; 19 N. Y. State Rep., 372; Scrugham v. Wood, 15 Wend., 545; Wallace v. Berdell, 97 N.Y., 13.

The plaintiff’s object by this action was to obtain a judgment setting these deeds aside as fraudulent against her, she having been thereby deprived of an estate in dower in this property. But neither the assertion of title by the grantor, before or after his marriage with her, nor his continued control of the property can be attended with that effect. For the title had become vested in the trustee prior to any negotiation or conference between the grantor and the plaintiff on the subject of marriage. And it was not made to appear that it had been conveyed in contemplation or expectation of marriage, either with the plaintiff or any other person. Neither was it proved that the grantor was even acquainted with her when the deeds were executed, acknowledged and recorded.

The facts which proved sufficient to rebut the inference of delivery in the.cases of Knolls v. Barnhart, 71 N. Y., 474, and Dietz v. Farish, 79 id., 520, were widely divergent from those appearing here. They were inconsistent with any preceding delivery. While here, even the continued control of the grantor was not specially at variance with the fact that the deeds had been delivered to the trustee, for he was entitled to the net rents and profits during his life, and taking them himself fulfilled that obligation. What he did was in harmony with the benefits reserved for himself. And the same answer is applicable to his act in contracting for improvements. That had been contemplated by the provisions contained in the deed themselves; neither the insurances, nor the payment of taxes, supported the charge of bad faith against him. For those continued after the deeds were made, had "been previously so effected, while the other policy was in the name of the trustee, as owner. And the taxes were by the deeds made a charge upon the rents and profits realized from the property.

The most that could be affirmed against the title was the representation of the grantor that he was its owner. But he could not divest it, or subject it to rights or equities in favor of the plaintiff by his unfounded claim of title. That had been placed by the deeds beyond his power, and no statement of his could restore his dominion over the land.

The deeds were not void on account of the creation of a trust estate for himself for the term of his natural life. The plaintiff was not, and is not, a creditor of the grantor. And it is in favor of creditors only that the statute avoids trusts of this description. 3 E. S. (6th ed.), 142, § 1.

The legal principle to which the plaintiff appeals will justify the avoidance of deeds executed previous to marriage with the intention thereby to deprive the wife of her dower in the land conveyed. But the cases brought within the range of this principle have been disposed of upon the effect of the fact that the conveyances was made after 'the parties had arranged for their future marriage, and from which an intent to defraud the wife could be inferred. Youngs v. Youngs, 50 How., 410; Babcock v. Babcock, 53 id., 97; Pomeroy v. Pomeroy, 54 id., 226; Youngs v. Carter, 10 Hun, 194. The facts of this case fail to place it within this principle or either of these authorities.

The deeds, though voluntary, and for the final benefit of the children of the grantor, appear to have been made in good faith. There was clearly no intention to defraud her in their execution and delivery, for the grantor was under no obligation then to her, either sentimental or legal. And when they are free from the taint of fraud, voluntary deeds, resting on the natural consideration of love and affection, will be sustained by both law and equity. Young v. Heermans, 66 N. Y., 374, 381; Dygert v. Remerschnider, 32 id., 629, 650. And where their execution and delivery have preceded the engagement of marriage, or the anticipation of that engagement, they have been held entitled to be maintained by the courts. Littleton v. Littleton, 1 Dev. & Bat., N. C., 327; McIntosh v. Ladd, 1 Humphreys, Tenn., 459. These cases arose under statutes enacted for the protection of the wife by the application and enforcement of the principle which has been stated; and in their theory sustain the deeds now in suit.

There were various offers of evidence made which the court on objection rejected. But it is reasonably plain that the plaintiff has not been injured by these rulings against her. If it had been proved that the grantor’s estate turned out to be insolvent, or that he had claimed to be the owner of the property, or that the trasteé had declared the deeds, after his decease, to be formal only, the evidence could not have affected the rights of these children, as they had become fixed by the making and recording of the deeds.

The case was disposed of as the law required it should be, and the judgment should be affirmed.

Van Brunt, P. J., and Brady, J., concur.  