Page v. Garver

[384]

SHAW, J.

Appeal on behalf of plaintiff from judgment and order denying her motion for a new trial.

The plaintiff, who is appellant here, is the widow of Samuel Page, deceased, who died intestate on June 24, 1899. Besides his widow, he left surviving him her unborn child

in esse,

who was born alive but died on the same day, and three sons and a daughter, the defendant herein, all children by a former marriage. Plaintiff, in her own right as widow and as sole heir of her deceased child, brings this suit to set aside and have declared null and void certain deeds, whereby the said Samuel Page, in his lifetime and long prior to his marriage to appellant, conveyed to defendant certain real estate described in the complaint, upon the” ground that at the time of making the deeds Samuel Page was in a sick, weakened and exhausted condition, and, on account of great physical and mental weakness, incapable of making any deed, or doing any business whatever. That taking advantage of his condition, this defendant and her brother, Solomon C. Page, did, by means of fraudulent representations made to said Samuel Page, induce him to make and deliver to defendant the said deeds to the real estate. The answer contains no denial of the allegations as to the mental and physical condition of Samuel Page at the time of executing the deeds; nor any denial as to the fraudulent representations alleged to have been made by defendant. There is a denial that Samuel Page was, at the time of his death, the owner of the land in question, or that he had been, subsequent to May 1, 1897, the owner of any part thereof, or held any interest therein other than a life estate to a portion thereof. As a defense to the action defendant relies upon two judgments, which are pleaded by way of estoppel.

The conveyances from Samuel Page to the defendant were made on December 9 and 11, 1896, and the marriage of plaintiff to Samuel Page occurred on February 4, 1899. About one year after the conveyance of the property to defendant, Samuel Page commenced an action against her, having for its purpose the annulment and setting aside of the deeds whereby he had theretofore conveyed the real estate to the defendant. Pending the trial of this action Samuel Page died. A special administrator of his estate was substituted as plaintiff, who, under the order of the court, prosecuted said action to a final determination and judgment was rendered in favor of de