text:
    ISAAC STAATS v. REUBEN H. FREEMAN AND WIFE.
    1. Injunction allowed restraining waste on a farm conveyed by the complainant to the defendant, on bill alleging that a deed for the farm was procured by the defendant from the complainant by undue means, the complainant being addicted to intemperance, and praying that the deed may he declared void.
    2. And on answer and motion to dissolve, the injunction was retained until the hearing of the cause.
    On the 11th of February, 1846, Isaac Staats exhibited his bill, stating that his father, Abraham Staats, on the 17th of August, 1819, made his will, devising to’the complainant the one-half of his homestead farm, containing about 130 acres, in fee, and that his said father died on the 4th of May, 1821. That immediately after his death, the complainant went into possession of the said farm, and continued in the peaceable and uninterrupted possession thereof until the time after-mentioned in the bill. That about the year 1814 he married Martha A. Ross, by whom he had a daughter, Margaret. That his said wife died November 6th, 1838, leaving the said Margaret her surviving. That the said Margaret, in 1837 or 1838, intermarried with Reuben H. Freeman, a man with pretensions to education and respectability, but destitute of the means of supporting himself or his wife.
    That the complainant took the said Freeman into his house after his said marriage, and supported him and his wife and two children of their marriage until December, 1840, when the complainant, who was the owner in fee of a valuable farm of about 100 acres, and worth $6000, which he had acquired by his own labor and industry, adjoining the farm so devised to him by his father, thought it advisable to urge upon his son-in-law the necessity of earning ids own support. And the complainant, in order to provide a comfortable support and maintenance for his daughter and her children, did, on the 21st of April, 1838, convey to his said daughter the .said farm of 100 acres, and did, also, give to said Freeman and his said daughter, personal property to the amount of $1000.
    That Freeman and his wife continued to reside on the said farm so conveyed by the complainant to his said daughter, Freeman’s wife, until the time in the bill after mentioned.
    That, during the time Freeman resided with the complainant, after Freeman’s said marriage, the complainant gave to said Freeman sums of money from time to time, amounting in all to about $300, as near as the complainant can recollect; and the complainant also made a conveyance to said Freeman of one-fifth of a tract of land, with the improvements thereon, called the basin property, lying along and adjoining the .Delaware and Raritan canal, being a part of the farm so devised to the complainant by his said father j which, fifth was worth, at the time of the said conveyance, at least $1000.
    That, in November, 1840, the complainant married Maria Matthews, by whom he has had one child, a son, named Abraham. That, soon after the complainant’s said marriage, the said Freeman and his said wife insinuated to the complainant and other persons, that the complainant’s said wife Maria was not faithful to her marriage vows ; that she was a bad woman, and would ruin the complainant, and strip him of all his property.
    That, by these repeated insinuations and charges against his said wife and the complainant, who was then in the habit of drinking ardent spirits to intoxication, believing the stories so told by Freeman and his wife, the complainant was thereby induced to turn his said wife Maria from his bouse.
    The complainant now charges that the said insinuations and charges so made against his said wife were false and unfounded, and were made for the purpose of inducing the complainant to convey away all his property into the hands and possession of the said Freeman and wife.
    That the complainant, after he had turned his said wife from his house, continued to drink ardent spirits to great excess; and while his wife was turned from his house, as aforesaid, the said Freeman frequently urged the complainant to apply for a divorce from his said wife, at the same time charging her with loose and unfaithful conduct, and that she would ruin the complainant in his pecuniary circumstances. That the complainant, being at that time and long after in a constant state of intoxication, gave a listening ear to the said charges and insinuations so made by Freeman and his wife against the moral character of the complainant’s said wife.
    That Freeman, during the time the complainant’s said wife was absent from complainant’s house, carried the complainant to the office of a counselor-at-law for the purpose of arranging the preliminary proceedings in order to apply for and obtain a divorce from his said wife Maria. That the said counselor, on being advised with on the subject of the divorce, considered the charges against the complainant’s said wife too vague to be made the foundation of an application for a divorce.
    That said application for a divorce being abandoned by said Freeman, he, Freeman, still urged the complainant, and while the complainant was in a state of intoxication, to convey to his wife the farm so devised to the complainant, and to confess a judgment to him, Freeman, for an amount sufficient to cover all the complainant’s personal property, the complainant being then owner of and in possession of personal property worth $2000. That said Freeman urged that, if the complainant did not so convey away his farm and confess said judgment, the complainant’s wife had run him in debt, and would run him in debt, and that all his personal property would go to satisfy the debts contracted by his said wife.
    The bill charges that it was not true that his said wife had run him in debt; that she had not done so; nor was she running him in debt, as stated and urged by Freeman.
    That, on the 2d of September, 1842, and while the complainant was in a state of gross intoxication, and with the idea impressed upon his mind by said Freeman that his said wife would ruin him, executed a deed to his said daughter, the wife of said Freeman, for the farm so devised to him by his father; and did, at the same time, give his promissory note to the said Freeman for $1600, or thereabouts, and executed a warrant of attorney fco confess judgment thereon.
    The complainant charges that, at the time he executed the said note and warrant of attorney, he did not owe Freeman a cent, and that the said conveyance and note were given without any eousideration.
    That after the said deed was executed, and before the delivery thereof, and while it was yet in the hands of the scrivener, the scrivener advised the complainant not to deliver the said deed, but to wait a few days before the delivery thereof; and that he, the said scrivener, would take the said deed home with him and keep it some days, and then, if the complainant, on reflection, ordered it to be delivered, he, the said scrivener, would do so, but not till then.
    That said' scrivener did take said deed home with him to keep subject to the complainant’s order.
    That while said deed was in the hands of said scrivener, in order to induce the complainant to deliver it to said Freeman or to his, Freeman’s, wife, Freeman, in order further to influence the complainant’s mind against his said wife Maria, and for the purpose of depriving her of a support and maintenance, and to defraud the complainant out of his said farm, obtained the possession of the account book of the complainant, and, where he, Freeman, knew the complainant would see and read it, wrote therein the following note, to wit: “September 7th, 1842, Samuel has been in Hunterdon, and, so far as he can learn, Maria’s character has been base, that she has no money up there, that Mrs. ilixon says that she is filthy and nasty, that she was at her house, that her brother would not have her there because she abused him and his wife, and accused her of stealing her muslin and flannel.”
    The bill charges that the matters and things set forth in the note above written are false and unfounded, and known by said Freeman to be so at the time he wrote the said note. That Freeman wrote said note for the purpose of fraudulently getting possession of the said deed which was then in the hands of the said scrivener subject to the order of the complainant.

      That the complainant has understood and believes that, while he was in a state of intoxication, Freeman prepared an order, addressed to the said scrivener, to deliver the said deed. That he has no knowledge whatever of seeing and signing said order for the delivery of said deed, and charges the said order to be a forgery; or, if the complainant was induced to sign it, it was at a time when he was so much intoxicated that he did not know the consequences of such an act.
    That the said deed was delivered by the scrivener upon the receipt of the said order.
    That at the time he executed the said deed, and at the time he executed the said note and warrant of attorney, he had not power of mind to comprehend the contents and effects thereof• and that they were not executed from his own motion and free will, but by the suggestions compulsions and contrivance of the said Freeman and his said wife, or one of them.
    That immediately after the said deed was executed, and before the delivery thereof, Freeman and his wife moved into the said house and upon the farm so devised to the complainant, and that Freeman has had the rents, issues and profits thereof from that time, and continued to occupy, possess and enjoy the same.
    That Freeman caused judgment to be entered against the complainant, in the Supreme Court, on the said note, by virtue of the said warrant of attorney, and caused execution to be issued immediately thereon, and placed in the hands of the sheriff of Somerset to be executed.
    That the said sheriff, in virtue of said execution, caused all the personal property of the complainant to be exposed to sale, and that it was all bought at said sale by said Freeman, at a nominal amount, and that Freeman took possession thereof and continues to enjoy the same.
    That Freeman is now cutting down a large quantity of timber growing on said farm, for the purpose of selling the same to his own use, and for the purpose of making rails to fence the farm which the complainant voluntarily conveyed to his said daughter, the wife of Freeman; and that Freeman gives out that it is his intention to cut down the whole or nearly the whole of the timher growing on said farm. And that Freeman, since he so obtained possession of the said farm, has carted off the same great quantities of the soil and manure made thereon, and applied it to the improvement of the land which the complainant voluntarily conveyed to his said daughter.
    The bill prays that Freeman and his wife may be decreed to re-convey the said farm to the complainant j that the said deed therefor may be declared void ; that the judgment so confessed may be declared void ; that Freeman may be decreed to account to the complainant for the value of the personal property so sold by the complainant, and for the rents, issues and profits of the said farm, and for the said manure and soil ° and that the said Freeman may be enjoined and restrained from committing farther waste upon the said farm.
    The injunction was granted.
    On the 20th of January, 1847, Freeman and wife filed their answer. They admit the devise stated in the bill; that the complainant, after the deatli of his lather, though not immediately, entered into possession of the lands and premises devised to him, and continued in full possession thereof for several years« but they say they have understood, and believe, and therefore charge, that immediately on the death of the complainant’s father, the widow of his said father was in possession, and remained in possession, during her life, as she was authorized and empowered to do by the terms of the will of complainant’s father ¡ and that it was not until her death that the complainant entered into possession of the said lands and the one-half part of the buildings thereon.
    They admit the marriage of the complainant, in 1812, and not in 1814, as stated in the bill, and that the defendant Margaret is his daughter j the death of the complainant’s first wile j and their own marriage in the month of August, 1884, and not in 1837 or 8, as stated in the bill.
    Freeman, answering for himself, denies that, at the time of his marriage, he was entirely destitute of means or ability to support himself and family. On the contrary, he most distinctly charges that such allegation is unjust and untrue; and in like manner he denies that upon his nsarriage he was by the complain■ant. taken into his house, and afterwards, with his wife and children, supported by the complainant until December, 1840 ; the contrary of all which he charges to be true. That at his marriage he had completed his professional studies, and was qualified and competent to engage in the business of instruction or teaching, especially of the young; and that he had in hand, of his own proper moneys, several hundred dollars; and that having been treated with rudeness and incivility by the complainant, (impelled and actuated by an evil agent and influence readily imagined from the admissions in the bill, and which this defendant cannot avert to without grief and mortification,) this defendant, yet in the lifetime of his mother-in-law, left the residence of the complainant, with the design of making, so soon as he should be able, ultimate and final arrangements for the separate and independent support of himself and family.
    That, with such purpose and design, he removed, in the fall of 1836, to Newton, Sussex county, and engaged in the business of a teacher for two or three months, and while so employed, upon a visit to his family, was urged by complainant to abandon his said business at Newton, and return to the vicinity of complainant’s residence, the complainant then and there promising him, as an inducement for such return, to convey to his wife, in fee, a lot of land of ten acres, lying on the west side of the road leading from Boundbrook to Middlebush, and not adjoining the homestead farm of the complainant, as is stated in the bill, and would largely contribute to the building of a convenient and comfortable house thereon, for the accommodation of this defendant’s family, and to be his property, in which this defendant-might resume and prosecute his business of a teacher of youth.
    That this defendant, relying on the faithful performance by the complainant of such explicit and solemn agreement, returned, and soon after commenced the erection of a house on said lot, and expended thereon, of his own moneys, $450, and incurred debts on account thereof to $1200, which debts the complainant, from time to time, neglected and refused to assume and pay, meanwhile leaving this defendant exposed to the clamorous demands and solicitations of impatient creditors, in direct violation of said solemn and explicit agreement before stated. That this state of things remained unchanged till about April 1st, 1838, when the complainant borrowed of George Windsor $1000 and applied it to the liquidation of the aforesaid debts, and, induced by the repeated solicitations of his wife, Martha Staats, afterwards executed a deed for 4 66-100 acres to his daughter, the wife of this defendant, in fee, in lieu of a conveyance of ten acres to this defendant, as was by the complainant promised as aforesaid.
    That during the summer of 1840, this defendant, influenced by the abusive and unstable conduct of the complainant, again determined to withdraw himself from the neighborhood of complainant, and with the view of selecting a proper location, devoted between one and two months to a visit to and examination of the western part of Hew York, and that shortly after his return, that is to say, within two or three months, according to this defendant’s best recollection, the complainant, without the knowledge of this defendant, and in fulfillment of°a solemn and express promise made to his said wife during her last illness and shortly before her death, made and executed a conveyance of the residue of the aforesaid farm, of which the said ten acres, promised as aforesaid, were part, by the complainant purchased as aforesaid, to his daughter, the wife of this defendant, in fee ; but in violation measurably of the spirit of each express and solemn promise, nevertheless withheld the delivery of said deed, until certain terms by the complainant propounded were complied with or assented to by this defendant, viz., that this defendant should gather the growing crops of both the aforesaid farms, estimated to amount to $800 or $900 in value, allow the complainant to take of the same sufficient for the consumption of his family and stock, and apply the residue to the payment of the debts of the complainant particularly incurred in the erection of the said house, which said debts, amounting to $1600, the complainant stipulated should be assumed and paid by this defendant, and that the complainant should have, to his own use, the one-half of the winter grain and of a thirty-acre field of grass, part of said farm, the season then next ensuing.
    He avers that the said terms were complied with on his part, but that subsequently the complainant refused to allow the pro-seeds of the said two farms to be divided as above stipulated by him, and applied the whole to his own use, to the detriment and loss of this defendant of $600 or $700. And that this defeudmade and executed to George Windsor a bond and mortgage, said mortgage containing said premises, to secure $1600, being the complainant’s debts, and $1000 thereof, or rather $1400 thereof, borrowed by the complainant of the said Windsor, as before stated, with several years’ unpaid interest thereon, and that afterwards, a barn being built on said premises, the said debt was increased thereby, and the interest in arrear on said mortgage, to $2500, and a bond and mortgage to secure that amount executed by this defendant and his wife to Hannah and Maria Ten Eyck, of New Brunswick, the interest of which has been paid by this defendant, and that so much of the consideration of this last mortgage as was needful was applied to the payment of said mortgage to George Windsor.
    He says, iu correction of the erroneous or inconclusive statements of the bill in this behalf, that he remained with his family in the occupancy of said house, built as aforesaid, for four or five months, when, at the request of the complainant, he with his family removed to the house occupied by the complainant, to superintend the farming business of the complainant, and to take care of the wife of the complainant, then in feeble and declining health.
    These defendants deny'that during the time of their residence with the complainant, he gave to said Freeman sums of money amounting to $300, or that he gave to these defendants personal property amounting to $1000, or that the fifth part of the tract called the basin property was worth $1000; on the contrary, they say that the complainant gave to his said daughter, during that period, property to the amount of $150 or $160 only, $65 of which was in the proper moneys of the mother of his said daughter, so deemed by the family of the complainant.
    The defendant Freeman charges the truth to be, in that behalf, that the complainant, having an unsettled controversy, in 1834, with the Delaware and Raritan Canal Company, offered this defendant $100 if he would obtain a satisfactory settlement of said controversy ; and he avers that he earnestly engaged in said undertaking, at such request, and in the prosecution thereof was obliged to visit Princeton eight or ten times, and New Brunswick more frequently, and finally succeeded in arranging said controversy to the complainant’s satisfaction, after great pains and difficulty ; and, in the arrangement, obtained from the company the right to erect a basin adjacent to said canal, on the lands of the complainant. And, upon the like further request of complainant, this defendant superintended the making of such basin, and when it was completed, the complainant sold it, with an adjacent lot of eighteen and three-quarter acres, for $3775 ; and in the conveyance thereof caused the name of this defendant to be inserted as one of the grantors, as an acknowledgment and compensation to the amount of $755, and not $1000, as charged in the bill, for the specific services and labors of this defendant of the nature before stated, as this defendant then supposedj such acknowledgment and compensation being freely and voluntarily made by the complainant, without any demand or request made or intimated by this defendant, or with his knowledge inducing the same.
    They admit, with grieij the complainant’s marriage with Maria Matthews.
    But the defendant Freeman answering for himself, denies that, soon after said marriage, or at any time, ho insinuated to the complainant or to other persons, that the said Maria was not faithful to her marriage vows; that she was a bad woman, and would ruin complainant and strip him of his property.
    And the defendant Margaret is constrained by self-respect to deny that such charges and insinuations were made by her, or that by any means whatever the complainant was or could have been induced by these defendants, or either of them, to credit and believe such statements. On the contrary, they allege that, had they not been restrained therefrom by the relation subsisting between themselves and complainant, and by delicacy and propriety, yet they solemnly aver that the notoriously bad character and conduct of the said Maria made any such allegations entirely unnecessary.
    And the defendant Freeman says that, before he ever saw or knew said Maria, the complainant, before his unhappy and disgraceful marriage with her, deliberately characterized her to this defendant and to others as the lowest of the low; stated that she was then pregnant by a person he named, and that he never would marry her. And this defendant avers that, in less than four months after said marriage, the said Maria was delivered of the child called by the complainant in his bill his child.
    These defendants say that the charges aforesaid, though not made by them, are true.
    Freeman denies that he urged the complainant to apply for a divorce, with or without the charges that his said wife was loose and unfaithful, and would ruin him.
    The defendants aver that the said Maria, after the marriage, and after she was brought home by the complainant, was frequently intoxicated, and neglected household matters, &c., and that the provisions.laid up, &c., were exhausted by midsummer. That, in this state of affairs, in July, 1828, the complainant and his said wife quarreled, and she withdrew from the home of complainant, after complainant had deliberately declared that if she did so she should never return.
    They declare that such quarrel and withdrawal of said Maria were wholly uninfluenced by any act, procurement, or advice of them or either of them. That, on the day after said quarrel, the said Maria returned, with her sister; and that the complainant, of his own motion, and without any interference or influence by any person, of any kind, so far as these defendants have ever known or believed, refused to admit her into the house, and she accordingly went away.
    They say they have heard and believe that said Maria, thereupon, consulted counsel as to her marital rights and the mode of enforcing a support from the complainant. Then it was, as these defendants aver, that the complainant, of his own motion, took Samuel Van Arsdale with him, went to Somerville, and caused to be inserted in one or both of the newspapers there published, a notice or advertisement to the effect that he would not pay any debts said Maria might contract.
    Freeman says that the complainant, in a state of sobriety and recollection, requested him to go with him to counsel; and that, •on such request, and not otherwise, he went. That the object was to advise on the practicability of the complainant’s obtaining a divorce. That this defendant went first to the office of William Thompson, Esq., with whose view of the case the complainant was not satisfied, and himself proposed and went thence to the office of T. A. Hartwell, Esq., and advised with him, and at his request produced witnesses who were examined by said Hartwell, and a note of their testimony was taken by him in writing, on which occasion the complainant withdrew and became grossly intoxicated.
    This defendant avers, that the complainant, acting, as this defendant supposed, under the advice of his counsel, certainly not under the advice of this defendant, also sent said Wan Arsdale to Hunterdon, in which county the complainant had been informed, as this defendant understood, the said Maria had formerly lived, to procure testimony or information, as the complainant stated, in aid of his application for a divorce.
    The defendants distinctly charge that these several stops were taken by the complainant uninfluenced in any way by them or either of them.
    They say that while they lived apart from the complainant, having left his house in 1840, and before said Maria had finally withdrawn as aforesaid, they were repeatedly importuned by the complainant to return, especially that this defendant Margaret might superintend the household matters of the complainantj on which occasion the complainant charged his said wife with negligence, waste, and even theft, and declared that he, the complainant, would bo ruined in consequence. That from sympathy with the deplorable situation of the complainant with reference to his personal and family affairs, they consented and returned and resumed the charge of the complainant’s family. Then it was, as the defendant Freeman alleges, that the complainant having sent for this defendant, the complainant being quite sober, as of himself, and speaking his own uninfluenced sentiments, declared his apprehension that his said wife, absent, and clothed by law with authority to contract debts on his account, would ruin him ; to avert which he, the complainant, proposed to convey his property to his daughter, and cause a judgment to be entered against him in favor of this defendant. And he, this defendant, utterly denies, again, that he directly or indirectly persuaded or urged, in any way induced or influenced the complainant so lo convey his property or confess said judgment.
    He denies that he stated to said complainant that his said wife had run him iu debt or would run him in debt, and that all his personal property would go to satisfy the debts by her contracted. On the contrary, he charges that the complainant himself made such statements, and added that she had stolen his money, and that he had not money even to pay his harvest hands, but had been obliged to borrow it.
    These defendants deny that on the 2d of September, 1842, at or before the execution of the deed of that date, the complainant was in a state of gross intoxication. On the contrary, they aver that, although not perfectly sober, he well knew what he was about doing, and the nature of the transaction, and freely, intelligently, and voluntarily executed said deed, and' entirely uninfluenced by these defendants or either of them in the way charged in the bill, or in any way, and that, in like manner, the execution of the promissory note was well understood by the complainant, as were the other papers connected with said judgment for $1655, that the same were the complainant’s measures, suggested by him, and not by these defendants; and, as these , defendants believe and charge, perfectly understood by him. That, as to the consideration of the judgment, they submit that the said consideration was a fair, just, and legal one. That these defendants, after their marriage, for eight years lived with complainant under an assurance that he would do better for the defendant than he could do for himself elsewhere, and during that period devoted their time and services, to a very considerable extent, to the supervision and management of the family and business of the complainant, and during the whole period, received from him $80, the price of a horse given by the complainant to the defendant, and $3.50, more than which last sum was- expended by the defendant for tobacco for the complainant, at his request. That, during the said period, a very unusual amount of anxious, patient and enduring care, attention and forbearance was exacted by the situation and habits of the complainant; and that a very moderate estimate of their services for such period would, at least, amount to the consideration of the said judg meat. These defendants, therefore, feel authorized to deny, that when said judgment was confessed, the complainant was not justly and truly indebted to this defendant.
    The defendants deny that the person who drew said deed, after it was executed advised the complainant not to deliver it, but to wait a few days, during which he would take and keep it, and if, upon reflection, the complainant should order it to be delivered, he would do so, but not till then.
    They charge that said deed was fully delivered, and the said scrivener expressly authorised by the complainant to take it and have it recorded ; that said scrivener voluntarily made the suggestion that he would retain it for a few days, that if complainant should change his mind, he might recall the deed; that such suggestion, if assented to, was scarcely adopted by the complainant, and that, for all that occurred, the scrivener was still at liberty to have the said deed and accompanying mortgage recorded forthwith, had he desired to do so.
    These defendants, and especially Freeman, deny, that while said deed was in the hands of the scrivener, he induced a delivery thereof, or influenced the mind of the complainant’ against his said wife, or to deprive her of support. This defendant pronounces the whole statement utterly untrue, if not preposterous, under the circumstances of the case, as hereinbefore stated ; and, in like manner, he denies that he obtained possession of the complainant’s account book, or placed within it the note referred to in the bill. On the'contrary, he charges that any such memorandum or note, if written by him, of which he has no distinct recollection, was written at the request and under the dictation of the complainant himself — placed within said book by himself, and for his own purposes, with which this defendant felt so little interest that, with the aid of the best reflection he can bestow on the point, he has not been able more distinctly to recall the occurrence. With respect, nevertheless, to the purport or substance of said memorandum, unlike the complainant, these defendants entertain no doubt that such purport and substance were entirely true. This defendant denies that he wrote said note, on the supposition that he wrote it at all, for the purpose of gel ting, fraudulently, the possession of said deed.

      These defendants deny that he (Freeman), while complainant was in a state of intoxication, prepared and addressed the order mentioned in the bill, or that the same is forged, or the signature thereto, or by the complainant unintelligently executed; but they affirm that said order was written early in the morning, under the dictation of the complainant, and at his request, and without the slightest influence exerted of these defendants, or either of them, and was deliberately signed by the complainant after it had been read by him and in the presence of the defendant Margaret.
    They deny that the complainant, when he executed said deed, note, and warrant of attorney, had not power of mind to comprehend the contents thereof, but allege that they were fairly, intelligently, and in good faith executed, without the intervention of these defendants, their influence, or the exercise of any compulsion, concealment, or fraud, and were just, proper, and necessary acts in themselves, were designed by the complainant, and, in effect, have subserved the- true interests of the complainant hitherto.
    They admit that, at the complainant’s request, they, shortly after the execution of said deed, removed to the house and farm in said deed mentioned, and have received the issues and profits thereof, and faithfully and liberally applied a large share thereof to the support and maintenance of the complainant and his said wife, actually advancing towards the expense of said wife, during the first year after the date of said deed, upwards of $150, and applied, of the residue, from time to time, not less than $500 towards the liquidation of the debts of the complainant, by him contracted before the execution of said deed, to which same object the complainant applied $250, by the assignment of several notes by him previously taken, and, to the time of such application, held and owned by him.
    They admit the judgment and execution, and, after two years thereafter, a sale of the personal property of the complainant, and the purchase thereof by Freeman, and held and owned by him ever after, and that such sale was made necessary and proper by the following circumstances: that, after their removal to the homestead farm, the complainant, under agencies which they niZKngly forbear to specify, desired to bring his said wife back, from which he was deterred a considerable time by the declaration of these defendants that if he should persist in doing so they would leave him. Yet he, notwithstanding, brought her back. That her condaet became so intolerable that the complainant, by the advice and influence of a friend principally. Was induced to send her away again, but in doing so authorised her to iasia debts on his account. That his said wife and also the complaiBSJst did, from time to time, incur such debts, to such extent that the whole net profits of said two farms were absorbed by the payment thereof with such payments as were before mentioned,, by upwards of $200; and the complainant was subjected to suits on account thereof, before justices of the peace, and judgments rendered against, him, in consequence of all which the preservation of the just rights of this defendant made such sale necessary; at which sale he became the principal purchaser for such prices as the property would bring, as he supposed was his right and duty to do; and that the property has since remained in his possession, subject to ordinary wear and transfer for the benefit of the family, and in a good degree for the benefit of the complainant himself
    He denies that at the time of filing the bill he was engaged in cutting down large quantities of wood for sale, for rails or other purposes; or that he ever declared it was his intention to cut the whole or nearly the whole of the timber standing on said farm, so far excepted- only as was necessary to pay the costs and expenses of the litigation in which he was involved by the complainant.
    In like manner, ho denies that he has carted from said premises large quantities of soil, manure or compost, or more than a just proportion of either.
    He says that though the wood and trees on said farm, unless felled, will deteriorate, yet he has neither cut, nor authorized to be cut, any timber during the spring of the present year, other than for ordinary use for fuel, except from 150 to 200 rails, to be used on the back farm, and 4 or 5 cords of fire-wood. That during the last winter, 4 or 5 cords of wood were sold or exchanged for coal, and a shoemaker’s bill of $8 or $.10 paid by so much wood; and none cut or disposed of beyond these items; and that, in truth, by far the greatest part of the wood cut from said premises was cut during the winter of 1842-3, to pay the ■debts of the complainant, and at his request.
    They deny that the complainant ever applied for or requested a re-conveyance of said farm; and in their judgments, it would-be devoted to the purposes of vice and intemperance, to the great grief of the complainant’s relatives and friends, in all probability, should the complainant become re-invested with said property.
    On this answer, a motion was made to dissolve the injunction.

      Leupp, in support of the motion.
    He cited 1 Halst. Ch. Rep. 21, 81; Saxt. 476; 1 Green’s Ch. 193; 3 Ib. 446.

      W. Thompson, contra.

   The Chancellor.

The injunction will be retained until the hearing of the cause.

Motion denied.

Same Case, 4 Hal. Ch. 814; 1 Stockt. 916.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    DANIEL BRAY v. MARY ANN BRAY.
    Insufficient evidence of adultery on bill for divorce.
    Bill for divorce. The bill charges that the defendant, since her marriage with the complainant, and in the month of November, 1845, committed adultery, in the house of the complainant, and in his absence, with one-; that about two weeks after the commission of the said offence, she voluntarily deserted the house ánd protection of the complainant; and the complainant says that he believes, and therefore charges, that the defendant has been guilty of improper conduct, and has committed adultery with one or more person or persons in this state, whose aiames are unknown to the complainant.
    The defendant answered the bill. She admits the marriage as stated in the bill, and says she continued to live in the same house with the complainant till the latter part of the fall or the fore part of the winter, 1845, when she left his house on account of his cruelty towards her, and by his express orders. She says she lived with the complainant as his wife till July, 1845, when the complainant ceased all intercourse with her as his wife, and kept increasing in his unkindness and cruelty towards her, until fie forced her from his residence as aforesaid. That the complainant treated her kindly for some months after their marriage, until he inherited a farm worth about $15,000 or $20,000, when his treatment of her began to change, and kept growing worse until their separation as aforesaid ; and that at their marriage they were both poor. That the complainant, from July, 1845, until the said separation, refused to converse with her, and refused to permit her to have any management or control in his house, and gave the whole control and management of the family to his mother, and insisted upon this defendant’s communicating with him only in writing, and wrote her several notes, two of which only are preserved, a copy of the first of which is as follows : “ Dear wife — -I have no objection to talk with yon, but I don’t think it prudent to be alone with you, because you have acted very bad, bad enough for me to never countenance you again; and as I have said I would forgive you of what you have done, provided you look to your Maker, and make a great alteration for the better, I will be with you as I was before, and be intimate, but not till then. If you wish to talk with me, do it before people, it is better for you, and will suit me better; if you don’t want to say anything before anybody, you can write, but it is better for you to talk with me before mother, if no one else.” Which note this defendent received in August, 1845. The second note she received a short time afterwards, and is as follows; “ Dear friend — I inform you I found a special note in my vest pocket, and it specified that you felt better, and I would like to know how it is that you feel better, when there is all appearance of the same disposition that you formerly had. I am under the impression that you are trying to make a cloak to win my affections back again, and then you would be the same again as ever. But I’ll have you to know that I am not a fool, not quite. I can see you when you don’t think I am anywhere about, and more than that, I think you are very deceitful, but don’t look for my affection again; that trap is triped, but never again shall it be triped the next yourself is triped.”
    The defendant further states that, after she received the last note, she received several others from her said husband, before she left as aforesaid, containing the most unkind expressions, one of which contained the expression that he never again meant to use this defendant as his wife, which said last mentioned notes she says she has lost.
    She further says that from the-time she went to live with her said husband, his mother had the control of the family, and from July, 1845, till the separation aforesaid, the mother of the complainant forbid and prevented the defendant from eating at the same table with her said husband; obliged this defendant to wait for her meals until after the family were done, when this defendant got her meals, the best way she could, of the fragments which were left, and that this treatment continued until the week before she left as aforesaid.
    She further states that, for the last week before she left, her said husband and his said mother refused to let her have anything to eat, and all she got to eat, for the last week, was from her neighbors, who furnished it to her as a matter of charity 5 and that then, there appearing to be no prospect of any end to this cruelty, and her said husband telling her that she must either leave his house, or he would make her lea ye it, she left his house, and went to her uncle’s, Jonathan Pearce, and has ever since resided separate from her said husband. And she denies that she left the residence of her said husband except for the causes and under the circumstances before stated in the answer.
    She expressly denies that in November, 1845, or at any other time or times, she committed adultery in the house of her said husband, or in any other place, with one-, or with any other person or persons whatsoever. And she further denies that-she, at any time, voluntarily deserted the house and -protection of her said husband, and except as in her answer is set forth.
    She further denies that she has been guilty of improper conduct, or has committed adultery with any person or persons whatever, in this state or elsewhere; and avers that the charges of adultery made in the complainant’s bill against her are wholly untrue.
    She states that the complainant, frequently, before she left his residence as aforesaid, told her to leave his house, but that she continued to bear his unkindness as long as she could; and she avers that she always, since her marriage with the complainant, faithfully regarded towards him her marriage vows, and was true and faithful to his bed as his lawful wife.
    She states that her said husband is now a man of large property, worth some $15,000 or $17,000; and that her solicitor was preparing a bill for alimony when the subpoena in this cause was served upon her.
    The testimony on which a divorce is asked sufficiently appears in the opinion delivered by the court,
    P. D. Vroom, for the complainant.

      P. Vredenburgh, for the defendant.
   The Chancellor.

It appears by the testimony, more particularly by that of Aaron Armstrong, that some months before the alleged act of adultery charged in the bill, the complainant had left his wife’s bed, or had driven her from his, and had declared that he would not live with his wife. She occupied a different bedroom from that in which he slept. He had taken other measures which showed his determination to get rid of' her. This state of tilings has its influence in examining the proof of the alleged act of adultery, and in considering what weight it is entitled to. The testimony shows that the wife was fully apprised of the complainant’s desire to get rid of her, and that she was desirous that the difficulties between them should be accommodated, and desirous to remain with him as his wife.

The testimony as to the act of adultery is certainly of a very extraordinary character, not to say marvelous. The facts from which we are asked to infer adultery are sworn to by a single' witness only.

This witness says she stayed all night at the complainant’s house; that she went to the door of the room in which the wife slept that night — the night on which the adultery is alleged to-have been committed — at about midnight; that it was a moonlight night; that the door was open so that she could see the bed, and that she saw the person with whom the adultery is alleged to have been committed in bed with the wife; that the husband had gone to New York the day before, and did not return until the next day — i. e., the day succeeding the night on which the adultery is alleged to have been committed. How the witness knows when the husband did return we are not told. She says that when she went to bed she left the person with whom the adultery is said to have been committed, down stairs in the sitting-room. That after she went to bed she heard him come up stairs. How she knew it was he who came up stairs, we are not told.

The testimony has failed to impress my mind with a belief that on that night, and under the circumstances in which the wife then stood, any adulterous intercourse with her took place. It is much more credible, to my mind, that certain arrangements had been previously made for the purpose of getting up evidence of adultery in the wife. And it is very easy to perceive how this might have been done, and this witness herself imposed upon.

I do not feel justified in decreeing a .divorce for adultery on such proof.

Divorce denied.

Reversed, 2 Sal. Ch. 628.


text:
    THE EXECUTORS OF JACOB H. VOORHEES, DECEASED, v. THE EXECUTORS OF JOSEPH VOORHEES, DECEASED, AND OTHERS.
    A devise and bequest were made to “ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America.’’ Such a society, lor the spread of the gospel, was organized and known by the above-stated name, at the date of the will, had its place of business in the city of New York, and its officers and board of directors ; and it was incorporated, under the above-stated name, before the death of the testator. Held good.
    Oo the 23d of September, 1846, the executors of the will of" Jacob H. Voorhees, deceased, exhibited their bill, stating that Joseph Voorhees, deceased, late of Monmouth county, died on the 14th of September, 1845, leaving a will, dated November 15th, 1838, by which he ordered his executors to sell all his estate, real and personal, as soon after his death as they might think proper ¡ and directed them to disburse the money arising from the sale, and all other moneys that might belong to his estate, after paying debts, &c., as follows: giving $100 to the Episcopal fund of the diocese of New Jersey; $100 to the Sunday school that is or may be attached to Christ Church, Shrewsbury, to be funded, or appropriated to the best advantage for the said school, under the direction of the rector of the said church • $500 to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America; and giving to his two children, Jacob H. Voorhees and Hannah Voorhees, all his remaining estate, as follows: One-half to the said Jacob IF., as follows t The money to he put at interest, or invested m real estate, and the proceeds or interest to be paid to the said Jacob H. during his life, and after his death the principal to go to his issue j and if he die leaving no children, or such children should die before they become twenty-one years of age, then the said estate to go to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America; and the other half of his remaining estate, as afore■said, to his daughter Hannah, as follows : (in the same way as to Jacob,) and on her death without leaving children, or if such' children die before'they become twenty-one, the said estate to go to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America; and appointing Francis Smith and Nathaniel B. Holmes, both of the State of New York, executors of his will. The executors proved the will.
    That the said Joseph Voorhees left but two children, viz., the said Jacob H. Voorhees and the said Hannah.
    That the said Hannah has since married Thomas Morford, Jr.
    That the said Jacob H. Voorhees died on the 8th of July, 1846, without issue, leaving the complainant Tabitha Voorliees his widow, and leaving a will by which he gave and devised all his estate to his said widow, and appointing the complainants executors of his will, and that they proved the same, and took upon themselves the burden, &c.
    That the real estate of the said Joseph Voorhees, deceased, ■consisted of his homestead farm in Shrewsbury, Monmouth county, containing about 290 acres, and outlands situated principally in said county, containing 700 acres or more; and that the executors of the will of Joseph Voorhees have sold most of his real estate, and threaten to sell the balance.
    The complainants say they are informed and believe that there is no such incorporation or society known by the name of the Domestic and Foreign Missionary Society of the Protestant. Episcopal Church in the United States of America; or that if there is such an incorporation or society, it is not empowered to take the said legacies or devises; and they submit that the said legacies and devises are of no legal validity, and should be declared void, and that- the same may be paid over to the complainants, as executors of the will of said Jacob H. Voorhees, and to the said Hannah Morford.
    That the real and personal estate of the said Joseph Voorhees, deceased, is worth from $15,000 to $18,000, according to the best of the complainants’ information and belief; and that the whole of it is now in the hands or under the control of the said executors of the will of said Joseph Voorhees, deceased ; and that the said executors are residents of the State of New York.
    The bill prays that the said legacies and devises to the pretended The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, may be declared to be void, and that the executors of the will of said Joseph Voorhees be decreed to pay over the same to the complainants and the said Hannah Morford ; and that they may come to an account with the complainants of the estate of the said Joseph Voorhees, deceased, in their hands, &o.

    The executors of the will of Joseph Voorhees, deceased, to so much of the bill as relates to the devises and bequests in said will to and for the use of the society called therein “ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America,” pleaded that the said estate, real and personal, devised and bequeathed by the said will was devised and bequeathed to them, as executors of the said will, in trust for public and charitable purposes, and that they, as such executors, were competent to take and execute such trust | that at the date of the said will, as well as at the death of said testator, there was an organized society referred to in said will, known by the name and description of “The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America,” and having its place of business in the city of New York, constituted for a certain specific, charitable, and public purpose, to wit, the spread and propagation of the gospei through domestic and foreign parts; which society, at the time of and long before the decease of the testator, had its officers and board of directors regularly appointed, to wit, at the city of New York; that the said society and its objects were well known to the testator, and had been long engaged in such objects, and annually received, by donations, public and private, large sums of money, which were appropriated, through its agents, to sueh public and charitable purposes as are before referred to; that the said society was competent in law to take such charities directly by devise or bequest, as well as to receive the benefit of such devises and bequests through the execution of a power or trust created by will or otherwise; that on the 13th of May, 1846, and before the death of Jacob H. Voorhees, the complainants’ testator, the said society was duly incorporated, under the name and description aforesaid, by an act of the legislature of the State of New York, and which said incorporation is competent in law to take by bequest and devise as aforesaid.
    This plea was demurred to.

      P. Vredenburgh, in support of the demurrer,
    cited 4 Wheat. 27 ; 3 Peters 111.

      W. L. Dayton, contra,

    cited 9 Cranch 292; 20 Wend. 117; 3 Edw. 79; 7 Verm’t Rep. 241; 1 Hoff. Ch. Rep. 202; 6 Hill 407; the case of Sarah Zane’s will, decided by Judge Baldwin, cited from a pamphlet; the case of Gerard’s will, 7 John. Ch. 292.
   The Chancellor.

The devise and bequest are to “ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America.” Such a society for the spread of the gospel was organized, and known by the above-stated name, at the date of the will, had its place of business in the city of New York, and its officers and board of directors, and was incorporated, under the above-stated name, before the death of the testator.

. The question of the validity of bequests of this nature has been so fully discussed, and so elaborately examined, in the recent cases in this country, cited at the bar, that it is unnecessary for me to attempt an examination of the subject at large. The validity of such bequests can hardly be considered an open question in this country, at this day.

Demurrer overruled.


text:
    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.