delivered the opinion of the Court:
If the recital in the decree that the cause was submitted upon supplemental bill and the answers thereto which deny the material allegations of the bill be strictly construed, it would seem that no other decree than that dismissing the bill could have been rendered.
“When the material allegations of a petition are all denied in the answer to it, and a hearing is sought by the petitioner upon the petition and answer, it must be a very unusual case where the court will do otherwise -than dismiss the petition. A dismissal is what is required by the fundamental rules of equity procedure.” Bohrer v. Otterback, 2 App. D. C. 78, 79; see also Arnold v. Garter, 19 App. D. C. 259, 264.
In view of the facts that there was a replication to the answers, that a statement of evidence has been certified to, and that it does not appear affirmatively that the cause was set down for hearing, by the plaintiff, upon the bill and answers, the recital will not be strictly construed.
It remains then to consider the pleadings and evidence which have been recited. As the sworn answers are responsive to the allegations of the bill, they are evidence for the defendants, and as evidence will prevail unless overcome by the testimony of two witnesses, or of one witness and clear corroborating circumstances. McCartney v. Fletcher, 10 App. D. C. 572, 599.
*139It was therefore incumbent upon the plaintiff to overcome the specific sworn denials of the defendants. Assuming, for the sake of the argument, that by virtue of her rights as a wife antecedent to any suit for divorce, that she would have the right to attack the hill of sale, the burden is upon her to prove the fraudulent intent of the parties in the execution of that instrument. The hill of sale is dated nearly a year before the bringing of the suit for divorce. In common with his adult sisters, he executed the hill of sale, as well as the deed attacked in the original bill, to carry out, as alleged, the wishes of the father, who had failed to have the same executed and attested as by law required to give his written request the force of a valid will.
The wife’s signature to the deed was necessary to bar any dower interest that she might have; but was not necessary to the assignment of the interest in the personal estate. The latter instrument preceded by two days the execution of the deed by the wife. We see no reason to doubt that it was actually executed on the date it bears. As the property was in the actual possession of the transferee, it was not important to the interest' of anyone that it he recorded as a transfer of property.
It -was properly presented to the probate court in support of the account of the administratrix, whose rights to retain and have credit for the shares of the signers of the same depended upon it. This account on file as an exhibit to the answers of the original bill showed the retention by the administratrix, as assignee, of the distributive shares of all the next of kin save one, who was an infant. It was not attacked by amendment to the original bill. For this reason little or no importance is to be given to the abstract of evidence on the former hearing. The hill of sale, or evidence relating thereto, was not relevant to the issues then on hearing.
Counsel for defendants gave notice of his reservation of the right to offer the instrument in evidence before the conclusion of the hearing. It was not offered, presumably, because of its irrelevancy.
The testimony on the former hearing used in this hearing *140shows that for a year or more prior to the assignment there had been some quarrels between the husband and wife, but it is to be inferred from her voluntary signature to the deed two days after the bill of sale had been executed, that their relations were then more amicable to some extent, at least. It certainly does not appear that divorce proceedings were then actually contemplated by either.
The fact raises, then, no more than a suspicion that defendant, in recognizing his moral obligation to carry out his deceased father’s wishes, was really actuated by the desire to put the property beyond the reach of his wife in a possible future proceeding for alimony. Suspicion, however, is not proof.
The evidence relied on was not sufficient to overcome the specific denials of the answers • and the equity court committed no error in dismissing the supplemental bill.
The decree is affirmed without the award of costs.
Affirmed.