Oakley v. Oakley — 23 N.Y.S. 267

Majority

p. 267

(69 Hun, 121.)

OAKLEY v. OAKLEY et al.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Dower—Land Conveyed before Marriage.

A deed, made by a testator to his sons by a former marriage, previous to his marriage with plaintiff, will not be set aside, and she be allowed dower in the land, in the absence of fraud against her.

Appeal from special term, Kings county.

Action by Mary H. Oakley against George W. Oakley and others to set aside a deed made by Whitson Oakley, plaintiff’s deceased husband, to defendants, during his lifetime, and previous to his marriage with plaintiff, on the ground of fraud so far as it barred plaintiff’s dower in the land. From a judgment dismissing the complaint, plaintiff appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Reuben H. Underhill, for appellant.

Benjamin G. Hitchings, for respondents.

There is no foundation for this suit in law or equity. It is plain that if the deceased, Oakley, made a valid conveyance of this property before marriage with the plaintiff, she is not entitled to dower; and equally plain that, if he was seised of the property at the time of his death, she is not entitled to dower, for the reason that she has accepted provisions in his will made in lieu of dower. Perhaps this is all that is necessary to be said, but it may not be amiss to add that it did not appear, and the court has so found, that assuming that Oakley, the deceased, at one time owned the property, and conveyed it to the defendant, there was any fraud or intent to defraud in the transaction. All the proof upon the trial was contained in the pleadings, and it is too well settled to require comment that, if an admission in an answer is relied upon, it must be taken with any explanation or qualification contained therein. The answer, taken as a whole, rebutted any inference of fraud on the part of deceased, and the court has so found. In addition, the court

p. 268

has found that the giving of the deed by the deceased was a perfectly straightforward, legitimate transaction, "free from fraud against the plaintiff, and in pursuance of his duty and obligation to them.” The court further found that the provision in the will was intended to be in lieu of dower, and that plaintiff accepted it with a full knowledge of the provisions in the will. There is not a scintilla of merit in the suit, and the judgment must be affirmed, with costs. All concur.