Bodner v. Feit

Townley, J.

Plaintiff brought this action to set aside- certain transfers made by her deceased husband. It is claimed that these transfers were in fraud of her rights under the Decedent Estate Law. Plaintiff was married on March 26, 1933. Her husband died on July 11, 1934, leaving four children by a prior marriage. Prior to bis death and on April 3, 1934, the husband had made transfers of a substantial part of his property for the benefit of his children. These transfers are alleged to have been made without consideration and the complaint then states:

“ Sixteenth. That all the said transfers by the said Nathan Bodner to each of the defendants was in fraud and deceit of the plaintiff’s rights with the deliberate design to defeat the plaintiff herein of her rights in lieu of dower as provided for by the Decedent Estate Law; and was without the knowledge and consent of the plaintiff herein.

“ Seventeenth. Upon information and belief that at all times up to the time of his death, the said Nathan Bodner maintained and exercised control over the said property, bank accounts and shares of stock herein referred to and received the rents, interests, profits and proceeds therefrom.”

The complaint further sets out as a second cause of action that these transfers were accomplished as a result of a conspiracy entered into between the defendants and plaintiff’s deceased husband which had as its purpose the transfer of all of the husband’s property to his children so as to deprive the plaintiff of her right of inheritance under the Decedent Estate Law. The complaint alleges:

“ Twentieth. That on or about the 3rd day of April, 1934, the defendants conspired together and formed the deliberate design and purpose to dispose of the property of the late Nathan Bodner in such a manner that during his life, the said Nathan Bodner would derive the benefits therefrom and yet upon his death not die seized of the said property, and that shortly before his death, the said Nathan Bodner conveyed all of his property both real and personal, to his children without any valuable consideration therefor, without the knowledge or consent of the plaintiff with intent to defeat the plaintiff herein of her rights in lieu of dower as provided for under Section 18 of the Decedent Estate Law, Laws of 1929, Chapter 229.”

This complaint raises the question whether an owner of property, in order to defeat the inchoate rights of his wife under the Decedent Estate Law, may, in his lifetime, make such a transfer as will enable him to keep control of the property and yet prevent the rights of the wife from maturing at his death.

The exact question presented is without precedent in this jurisdiction. In Rubin v. Myrub Realty Co., Inc. (244 App. Div. 541) this court sustained the right of a wife to set aside a transfer similar to that involved here and the Appellate Division of the Second Department in LeStrange v. LeStrange (242 App. Div. 74) reached the same conclusion. In each of these cases, however, there was involved either an ante-nuptial agreement or a representation. We do not consider such agreement essential to a recovery.

Sections 18, 82 and 83 of the Decedent Estate Law in place of dower and curtesy have given certain rights in the property of which a decedent dies seized. These rights are substantial and are intended to enlarge rather than restrict the rights of a wife in her husband’s property. (See Rubin v. Myrub Realty Co., Inc., supra, 544.) They may not be destroyed by transfers under which the grantor retains the control and benefit of his property during life but which upon death pass the property to others than those entitled to receive it under the statute. Under the statute, husbands and wives have the utmost freedom of control over their respective properties and may transfer them as they will in normal course during their lives. They may not, however, strip themselves of their property for the sole purpose of depriving those that the statute intended to protect of their right to inherit.

Decisions in other jurisdictions where dower and curtesy have been abolished sustain this view. (Thayer v. Thayer, 14 Vt. 107, 120; Grover v. Clover, 69 Col. 72; 169 P. 578; Smith v. Smith, 22 Col. 480; 46 P. 128; Payne v. Tatem, 236 Ky. 306; 33 S. W. [2d] 2.) These cases are very fully and ably reviewed in the opinion of Mr. Justice O’Malley in Rubin v. Myrub Realty Co., Inc. (supra). It would serve no useful purpose to repeat what was there said other than quote the following extract from the opinion in Thayer v. Thayer (supra), a case not involving an ante-nuptial agreement: “ The conclusion, then, to which we come, is, that the oratrix had, in the life time of her husband, such rights as should be recognized, protected and enforced; that the attempt to elude these rights, in the manner disclosed in this case, was mala fide, and a fraud upon the law and upon the marital rights of the oratrix, and that, as a consequence, the husband, so far as respects the widow, must be regarded, at the time of his death, as being the owner and having the seizin of the property in question. This result, we think, is in accordance with well settled principles, and such as sound policy and justice dictate.”

The order should be reversed, with twenty dollars costs and disbursements, and the motion denied, with leave to defendants to answer within ten days after service of the order to be entered hereon upon payment of said costs.

Martin, P. J., Dore and Cohn, JJ., concur; Untermyer, J., dissents and votes for affirmance.