Ward v. Ward
| Citation | 57 N.E. 1095,63 Ohio St. 125 |
| Parties | WARD et al. v. WARD. |
| Decision Date | 19 June 1900 |
| Court | Ohio Supreme Court |
Error to circuit court, Richland county.
Action by Mrs. John Ward against C. C. Ward and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Syllabus by the Court
A conveyance by a man who has entered into a contract of marriage, which subsequently takes place, of a portion of his land to his sons by a former marriage, without consideration other than love and affection, and without the knowledge or consent of his contemplated wife, is a fraud on her marital rights, and she, at his death, is entitled to dower therein. Spear, J., dissenting.
Bell & Brinkerhoff, for plaintiffs in error.
Laser & Huston, for defendant in error.
The plaintiff below, as appears from her amended petition, being the widow of John Ward, deceased, brought suit to set aside certain antenuptial deeds that had been made by her husband to his children by a former wife, and to be endowed in the lands, on the ground that the conveyances were voluntary and in fraud of her rights as a wife; she being without knowledge of the facts at the time of the marriage. The case was appealed to the circuit court, and there decided in favor of the plaintiff. There is no finding of facts, the finding being simply in favor of the plaintiff, and that she is entitled to dower in the land. But a bill of exceptions was taken containing all the evidence and made part of the record. The material facts are, however, not in dispute. Prior to November 18, 1892, John Ward, a widower, living in Richland county, Ohio, was the owner of 106 acres of land, which he had acquired during the life of his first wife. He had five children, all grown and married,-three sons and two daughters. His eldest son C. C Ward, lived on the premises, and occupied a house on 7 and a fraction acres, which he had purchased from his father for $300, but for which he had no deed. As to this tract however, there is no controversy. On November 18, 1892, in contemplation of marriage, he executed and delivered to C. C Ward a deed for 25 acres, including the 7 acres and a fraction. On the next day he executed a deed to H. N. Ward for about 13 acres, and on November 23, 1892, he executed a deed to his other son for 18 acres, and in the evening of the same day he married Catherine Stough, who is now his widow and plaintiff below. There is some controversy as to when these deeds were delivered, but we will assume that they were delivered, as claimed, before the marriage. She, however, had no knowledge of their existence at the time of the marriage, nor until after the death of her husband, when they were placed on record. They were, in each case, voluntary deeds, supported by no other consideration than the love and affection of a father for a son, except as to the 7-acre tract contained in the deed to the eldest son, and which, as we have stated, is not in question.
The question, then, arises upon this state of facts, whether the plaintiff is entitled to dower in the lands covered by these deeds, except the 7 acres. We think she is. They were all voluntary deeds, made in contemplation of marriage. It can make no difference in principle whether actual fraud was intended or not; their execution and delivery before the marriage, without her knowledge or means of knowledge operated a legal fraud on what would be her rights in case of marriage. A desire to provide for the children of his former wife was both natural and proper, but, as they had no legal claims upon his bounty, before he could rightly, in contemplation of marriage, dispose of his property to them for such purpose, it became his legal duty to disclose his purpose to one who, by her intermarriage with him, would become vested by law with a legal interest in the property that could not be devested without her consent. A father's legal duty to his children in no case requires him to practice a fraud on his wife or any one else. If after entering into a contract of marriage, if not before, he desires to make provision for his children by a former wife, it is his duty to communicate that fact to his intended wife, if thereby her rights are to be affected, that she may have an opportunity to say whether she consents to the disposition before consummating the agreement to marry. A failure to do this is, at least, a constructive fraud. In Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W. 797,41 L.R.A. 258, where the question has received careful consideration upon principle and authority, it is said: ‘Whatever may have been formerly held, it has become settled in these latter days that the purpose to deceive and defraud the other prospective spouse is imputed to the one who makes the attempted transfer, and conceals the fact until after marriage.’ In England, for reasons largely relative to the custom that there prevails of making a settlement in lieu of dower, called a ‘jointure,’ before marriage, less consideration has been given to antenuptial conveyances by the husband, while such conveyances by the wife are uniformly held invalid. But in this country no such distinction is made, and the decisions are, as said in the case just cited, practically unanimous that the mere fact that a secret transfer was made after the engagement is conclusive on the question of fraud so far as the right of dower is...
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