p. 326Mary H. Oakley, App’lt, v. George W. Oakley et al., Resp’ts.(Supreme Court, General Term, Second Department,Headnote
Í. Dower—Conveyance prior to marriaqe.Defendants’ father conveyed to them certain property a short time prior to his marriage with plaintiff, and thereafter made a wdl giving to her a provision in lieu of dower, which she has accepted. In an action to set aside the conveyance so far as it barred plaintiff’s dower therein, the court found that there was no fraud in the transaction. Held, that there was no foundation for the suit at law or iu equity.
2. Pleading—Admissions in answer.
An admission in an answer must he taken with any explanation or qualification contained therein.
Appeal from judgment dismissing the complaint.
Action to set aside a deed made by one Whitson Oakley, now deceased, to defendants, his sons by a former marriage, of a livery stable, made a few days before his marriage to plaintiff, on the ground of fraud, so far as it bars plaintiff’s dower in said real estate.
The answer admitted the making of the deed to defendants, but alleged that the property had been bought by their father to start them in business, and was always intended to be their property; denied any fraud, and set up the will of their father making provision for plaintiff in lieu of dower, which she had accepted and given a receipt therefor. The court found that there was no proof of fraud, and dismissed the complaint.
Reuben H. Underhill, for app’lt; Benj. G. Hitchings, for resp’ts.
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 seized 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,
p. 327that assuming that Whitson Oakley, the deceased, at one time owned the property and conveyed it to the defendants, 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 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.
Barnard, P. J., and Dykman, J., concur.