October 29, 1913. The opinion of the Court was delivered by This is an action to set aside a deed and will for fraud and to establish a contract. The following statement appears in the Circuit decree:
"From the pleadings and testimony herein it appears that Mr. McAuley, an aged widower of Due West, South Carolina, with one daughter and considerable property which had come to him from her mother, his deceased wife, became enamoured of a Virginia widow, relict of a deceased minister of the gospel. The Virginia widow had also some property of her own and a small pension from the church. They entered into a long correspondence, much of which is evidence. A visit by Mr. McAulay and his daughter to the *Page 88 widow's home in Virginia, object matrimony, was the result. The widow declined marriage unless provided for out of the McAulay property. She testifies to an oral agreement that that would be done with Mr. McAuley, which the daughter agreed to.
"They were married and returned to Due West. In less than two months Mr. McAuley died. On the very day of the marriage he had executed and delivered to the daughter, and she had forwarded for record at Abbeville, a conveyance of his real estate to her; and the same was duly recorded. The deed conveyed the property to the daughter for an expressed consideration of ten dollars and for love and affection, and the heirs of her body forever, but reserving the right to the grantor a life estate."
Within a few days after their return to Due West, Mr. McAulay, without the knowledge of his wife, made a will devising all of his other property to the daughter and her bodily heirs. "And should she die without heirs of her body, and my wife still survives, I desire it to go to her, Ressa G. McAulay, if she still remains single, and at her death or marriage, I desire it to revert to my kindred brothers and sisters, unless my daughter should will it otherwise." The daughter was made executrix of this will, and the same has been duly probated and she has qualified thereon; practically, therefore, the Virginia widow got nothing by the deed or will.
The deceased wrote a letter to the plaintiff before marriage, stating that he had property, but he had hoped to conceal that fact until after marriage in order to reserve it as a pleasant surprise. He told her, however, that he did not want her to consider the property an inducement, as he wanted the marriage to be purely a "love scrape." The mention of a sordid consideration even by the very young and romantic suitor could not be considered by a Court as entirely disingenuous — neither of these parties was young *Page 89 or romantic. As soon as the marriage was arranged, the deceased and the defendant left the house and the conveyance of the real estate was made immediately before the ceremony.
The plan to defeat the rights of the wife that are about to attach must be perfected at once and all that could be done to accomplish that purpose was done. The wife has no right in the personal property and that can wait. They do wait but not long. It is very clear that having held out the property as an inducement, the husband at once set out to defeat the main consideration for the marriage and the means used were the deed and the will. It needs no citation of authorities to show that two papers that are in fact parts of one transaction may be construed as one. The deed has been set aside as to dower. Its invalidity as to dower is conceded. The invalidity is too plain for argument. Why set aside the deed and not the will? The answer is the wife has a right to dower; inchoate, but still a right and there is no right to the distributive share. The answer would be complete if the right had accrued, but it had not. At the moment the deed was executed there was no more right to dower than to the distributive share. It is not the engagement to be married but the marriage that gives rise to the right of dower. An engaged man may make a deed and the future wife has no claim of dower. But a deed made in contemplation of marriage and to defeat the future right of dower does not deprive the wife of dower, because it is a legal fraud. If this were a business contract and the obligor had already started a scheme to deprive the obligee of all benefits under the contract and afterwards had made other dispositions of his property, with the same purpose in view, the Courts would not hesitate to set aside every step in the accomplishment of the fraudulent scheme. It may be said that the analogy does not hold because the wife is not a *Page 90 creditor. In this State she is a creditor and her rights as a creditor are of the most sacred order.
Brooks v. McMeekin, 37 S.C. p. 303: "Now, under the decision of our Courts, marriage is decided to be a purchase for valuable consideration of any rights conferred by law upon the wife, although no expression of such results are mentioned when the contract of marriage is entered into by her. In Rivers v. Thayer, 7 Rich. Eq. 144, Chancellor Dargan announced the proposition in these words: `Marriage is a valuable consideration. Some have considered it the highest known in law. None would say it was a lower consideration than money. There is nothing unreasonable in this. The great value of the consideration consists in this; that the wife surrenders her person and her self-dominion to the husband, and enters into an indissoluble engagement with him foregoing all other prospects in life, and if the consideration for which she stipulates fails, she can not be restored to the status in quo. She can have no remedy or relief.' In speaking of the wife's right to require the personal estate of her husband to be applied to the liens under the statutes of our State fixing the order of application of such personal estates by the deceased husband's personal representative so as to let in her claim of dower, in the case of Wilson v.McConnell, 9 Rich. Eq. 513, the Court uses this language: `But this claim is met by a corresponding equity on the part of the widow, who is entitled to the position of a purchaser for valuable consideration against all but existing liens;' liens existing before marriage."
McCreery v. Davis, 44 S.C. p. 226.
So, in Brooks v. McMeekin, 37 S.C. 303, this Court held: "We are, therefore, enabled to declare it to be the law, as derived from our own decisions, that in this Commonwealth marriage is a valuable consideration, paid by the wife for those rights and estates that by our law are accorded to the wife, as a wife." *Page 91
It is true this authority refers to dower, but the law is not an aggregation of unrelated fiats, but a science and its rules ought to be followed to their legitimate and just consequences. It is true that a man can dispose of his personal property by will and thereby defeat the third that would otherwise go to his wife. The question is, can a man go to the altar with a well-defined and half-executed plan to deprive his bride of every consideration for which she marries him and have the Courts sustain the plan? Whether the consideration be money or love, both must go when the plan is revealed. Unless the rights of innocent purchasers for value are impaired, it ought not to be sustained. It is also true that a man may sell his property and thereby defeat the claims of creditors, but if the Court finds that the sale was made for the purpose of hindering, delaying or defeating creditors, the sale is void as to all who participated in that purpose even though the purchaser paid full value.
Lowry v. Pinson, 2 Bailey 324: "A sale of lands, made for the purpose of defeating the recovery of damages for a breach of promise of marriage, is fraudulent and void, if the purchaser have notice of the fraudulent intent; although the agreement for the sale was made before suit brought for the breach of promise, and although the purchaser paid an adequate consideration, and went into immediate possession, and the whole of the purchase money was in fact applied to the payment of bona fide creditors of the vendor."
It is said in the State v. Chemical Co., 71 S.C. 569, "The plan may make the parts unlawful."
It is urged that there is no justice in taking any of this property from the defendant because it was really hers and was the savings from the income from her mother's property. There is no satisfactory proof of this. The evidence makes the income so small that it is difficult to see how the deceased saved anything at all from the combined income of husband and wife, and leads to the conclusion that there *Page 92 were other resources of which the defendant and her witness know nothing. A witness urged him to put the Due West property in his wife's name. "He replied that he didn't think a minister should put his property under his wife's petticoat." If it were his wife's there was no impropriety. Even if the property in the name of the deceased had been bought with the income derived from her mother's estate and her father did not inherit from his deceased wife the one-third now claimed by the plaintiff, yet, if, as the testimony shows (she did not contradict it), that the defendant represented to the plaintiff, before the marriage, that her father was worth ten thousand dollars, she can not now claim that the property is and was her own.
Bigelow on Fraud, vol. I, p. 482: "Where a marriage has taken place, on the faith of representations made by a third person, in regard to the circumstances of one of the parties to the marriage, such third person must make good his representation."
It may be, as suggested in argument, that it was modesty that kept the defendant from the stand. If so, we respect it, but however great our respect for womanly modesty, it is not a substitute for evidence in the Courts. The Courts are bound by the evidence.
It is said the widow can not claim both dower and a distributive share. The statute says "accept" and not "claim." The widow has not accepted either and claims a distributive share.
The second exception must be sustained. The plaintiff's services must have been worth at least her lodging and food and were not a provision under the contract.
The exceptions that refer to the competency of evidence under section 438 of the Code, are overruled as in contravention of the statute.
Those that refer to the sufficiency of the contract are overruled. *Page 93
The contract was too vague and indefinite, even if it could have been proved.
This Court can and does set aside the deed and will because they were parts of one scheme to defeat the rights of the plaintiff, and the case is remanded for partition.
MR. CHIEF JUSTICE GARY concurs in the result.