is found in the Constitution vesting the presi- |ing of words, and of the rules of statutory dent pro tempore of the Senate with the duties construction, and that they incorporated into of the lieutenant governor when a vacancy the act all that was intended, and that they occurs in that office, and hence any such ques intended that effect should be given to all tion is foreclosed. that was found therein." And that principle The foregoing conditions being present, a of construction applies with full force here. vacancy occurred in the office of lieutenant If any layman of ordinary intelligence, be governor upon the death of the incumbent, he merchant, doctor, or mechanic, should and the governor had the power to fill such have the question submitted to him as to the vacancy by virtue of 8, art. 5, of the Con proper signification of the words here under stitution. That section reads as follows: consideration, to wit, the officer's commission "When any office shall from any cause be- | shall expire "at the next election by the peocome vacant, and no mode is provided by the ple," he would say without hesitation that Constitution and law for filling such vacancy, the commission expired at the next general the governor shall have the power to fill such election. Such is the fair and legitimate vacancy by granting a commission, which construction of the language. There are some shall expire at the end of the next legislature decisions of courts of other states which in a or at the next election by the people." It measure look in an opposite direction from follows that the result of this litigation in the views here expressed. But these decipart rests upon the true construction of the sions are largely based upon provisions of law words "the next election by the people. It not identical with the one here involved. is conceded by the present incumbent of the Many of those provisions use the term “regoffice that the next election by the people ¦ ular election," and in such cases stress by the since his appointment will be the coming court is laid upon the word "regular" as a presidential election to be held in November, most material element in arriving at the true but he claims the words should be construed construction of the language. Notwithstandto mean "the next election by the people at ing the foregoing construction of the constiwhich a lieutenant governor is regularly to tutional provision is favorable to the peti be elected." If the framers of an instrument tioner, still the relief he asks must be denied. of the dignity and importance of a state Con- For, though the appointee's commission exstitution had intended such to be the law, it pire at "the next election by the people, was easy for them to have said so, and they still, in the absence of some law authorizing should have so declared in terms. And, in the election of a lieutenant governor at that the absence of a declaration of that kind, I time, no election can be held, and I find no do not consider myself authorized to so in- such law. A provision of Constitution or terpret a phrase of that instrument; certainly statute declaring a certain day upon which not unless the intent of its authors to that the commission of an officer shall expire is effect is plainly apparent; and we look in in no sense a provision that an election shall vain for such intent. Upon a question of be held upon that day to fill the office. Under statutory construction it was said in Blythe these conditions the present appointee of the v. Ayres, 96 Cal. 582, 19 L. R. A. 40: "We governor will hold until his successor is are not here to construct a statute, but to con- elected and qualified, regardless of the day strue a statute. We can neither interpolate upon which his commission may expire; and nor eliminate, and we are bound to assume his successor can only be elected at a time that the legislature enacted the law as it now fixed by law, which time will be at the regstands with a due comprehension of the mean- ular state election in the year 1898.

favor of plaintiff in an action brought to set aside certain conveyances of real estate as in fraud of plaintiff's rights. Reversed.

Statement by Hayt, Ch. J. :

of $40,000, and allege that it was only of thevalue of $15,000. They deny that on the 16th day of August, 1892, Horace G. Smith. was pronounced to be in extremis, or that his death was then and there expected. They deny that the deeds were in his possession, as alleged in the complaint, and allege that. the deeds, as soon as executed, were deliv. ered to the defendants, respectively, and retained by them. It is denied that the grantor,. after the execution of the deeds, retained possession or control over the property, and also that he received the rents, income, or revenues therefrom. After the answers were filed, the causes were consolidated upon the motion of plaintiff, and against the objection of the defendants, and each of them. Upon these issues the cause was tried to the court without a jury. Upon the evidence the plaintiff, and decreed that the defendants, and each of them, be compelled to convey to her the one half of all the real estatedescribed in the complaint, and conveyed to the defendants, respectively, by the quitclaim deeds of August 28, 1888. The defendants, having excepted to the findings and decree, bring the case here by appeal.

In this one appeal are embraced three sev eral actions, commenced in the district court by Jane H. Smith, as plaintiff, against Horace G. Smith, Jr., Ralph Smith, and Jessie F. Smith, defendants, respectively. In the court below the actions were consolidated, and tried as one action. The complaints are alike in each of the three cases, except as to the party defendant. It is alleged that appellee, Jane H. Smith, was married to Horace G. Smith in November, 1884, and that she remained his lawful wife until the 17th day of August, 1892, upon which last-mentioned date he died, at the age of seventyfive years; that at the time of the intermar-the court determined the issues in favor of riage of plaintiff and the deceased he had three children living, the defendants in these several cases; that on the 28th day of Au gust, 1888, the deceased, being the owner of a large amount of real estate in the city of Denver, to the value of $40,000, free and clear from all liens and encumbrances of any kind and nature whatsoever, executed deeds to all of such real estate to the defendants in severalty. Plaintiff alleges that these deeds which bear date August 28, 1888, were made secretly, without her knowledge, and without consideration, with the intent and design to defraud plaintiff in the event of her hus band's death. It is further alleged that by these deeds the deceased conveyed to each of the defendants about a one-third portion in value of all his real estate; that the deeds The deed to defendant was made, acknowlwere acknowledged on the 28th day of Au-edged, and delivered to the defendant by gust, 1888, but that none of them were filed for record until the 16th day of August, 1892, this being the day before the death of the grantor. It is further alleged that at the time the deeds were filed for record the said Horace G. Smith was in extremis, and expected to die, and also that from the time of the execution of these deeds until the same were recorded they remained under the exclusive care and control of the grantor; that during all this time he retained the possession, do minion, and absolute control over all the property thus deeded, receiving all the rents, income, and revenues therefrom, the same as if the deeds had never been made, and in all respects exercised the exclusive rights of ownership over all the property. It is fur-do. ther alleged that these deeds are testamentary in character, and were made by the grantor, acting in collusion with the grantees, for the purpose of defrauding plaintiff of her right as heir of her husband. It is further alleged that plaintiff was thereby left with out means for her support, and that she was physically frail, and in delicate health, and unable to work for a living. To these complaints a general demurrer was in cach instance interposed and overruled. Thereupon the defendants each answered separately. The answers are the same in all the cases. In their answers, the defendants admitted that Horace G. Smith was the owner of the real estate described in the complaints, but denied that the real estate was of the value

Messrs. David Mitchell and N. M. Laws, for appellants:

Plaintiff's husband had a perfect right to dispose of the property if he was entirely freefrom debt, and in any event only creditors before or subsequent to the act could question it. Bump, Fraud. Conv. 2d ed. 271, 272; Wait, . Fraud. Conv. SS 89-91.

Horace G. Smith, the grantor. This was and is sufficient to transfer the title, even though Horace G. Smith may have desired and intended thereby to prevent his wife, the plaintiff, from ever acquiring any right, title, or interest in or to the real estate so by him conveyed, or from ever deriving any benefit therefrom; she being only an heir and basing her claim on that ground.

Diefendorf v. Diefendorf, 132 N. Y. 100. The grantor cannot procure his deed to be set aside.

Colee v. Colee, 122 Ind. 109; 1 Story, Eq. Jur. § 371; Woerner, American Law of Ad- ̧ ministration, § 296.

What the grantor cannot do his heir cannot

Bump, Fraud. Conv. 437; Wait, Fraud. Conv. 121; 1 Story, Eq. Jur. § 371.

The complaint does not allege that the grantor was in any way incapacitated, or that he was moved by undue influence on the part of the defendant in any way or manner, or that defendant did or said anything to procure the making of the conveyance sought to be set aside. In such case the deed must stand.

Wait. Fraud. Conv. 481; Smith V. Meaghan, 28 Hun, 423.

In this state a husband or wife has the right absolutely to do whatever he or she will with his or her property independent of the other toall intents and purposes the same as if sole and unmarried.

Crain v. Wright, 114 N. Y. 311; Palmer v..

Each of said defendants has a clear right Thayer v. Thayer. 14 Vt. 107, 39 Am. Dec. to show by competent witnesses who had 211; Killinger v. Reidenhauer, 6 Serg. & R. knowledge of the facts that the said several 531; Youngs v. Carter, 10 Hun, 194; Jiggitts deeds were actually and unconditionally dev. Jiggitts, 40 Miss. 719: Bigelow, Fr. § 96; livered by the grantor to the respective grantees on the day of their date and acknowledgment: but this right was denied to each of said defendants by the orders and rulings of the court above excepted to; and each of said defendants was injuriously affected thereby.

An absolute deed takes effect on its delivery, and the right of possession in the grantee can- Gregory v. Filbeck, 12 Colo. 379; Johnson not be limited or postponed by parol agree- v. Johnson (Ky.) 2 S. W. 487; Hanna v. Palment between the parties, and if the grantor i mer, 6 Colo. 156, 45 Am. Rep. 524.

Where the husband during coverture secretly makes a conveyance of all his property, and keeps the knowledge thereof from his wife, and thereafter retains the control and management of his property, such instrument should be treated and considered as a will, for it is testamentary in its nature, and not as a deed; and considering it as such, inasmuch as it deprives his wife of more than one half of the property, it should be held to be void as to her.

Lines v. Lines, 142 Pa. 149; Swaine v. Perine, 5 Johns. Ch. 482, 9 Am. Dec. 318; Gilson v. Hutchinson, 120 Mass. 27; Cranson v. Cranson, 4 Mich. 230, 66 Am. Dec. 534; Jones v. Jones, 64 Wis. 301; Tucker v. Tucker, 32 Mo. 464; Smith v. Smith, 12 Cal. 216, 73 Am. Dec. 533. The same rule applies to personalty which is given with the intent of depriving a widow of her distributive share. It will be set aside as a fraud upon her.

Manikee v. Beard, 85 Ky. 20.

Hayt, Ch. J., delivered the opinion of the

court:

ment of his debts. Id. § 1534. It is further
provided that, when an inventory shall have
been made of such personal estate, the widow
may relinquish her rights to all property
allowed to her, and that in lieu thereof she
may claim the value of such property in
money or other personal property, at her
election. Id. § 1535. It is also provided:
"In case any married man shall hereafter
deprive his wife of over one half his prop-
erty, by will, it shall be optional with such
married woman, after the death of her hus-
band, to accept the condition of such will,
or one half of his whole estate, both real and
personal." Id. § 3011. It is the obvious
intent and purpose of the foregoing acts to
provide the widow with the necessary means
for her support in case of the death of the
husband, whenever his property is sufficient
for that purpose.
Under these statutes, ap-

To

pellee contends that where the husband, during coverture, secretly makes conveyance of all his property, and keeps the knowledge thereof from his wife, thereafter retaining The record in this case discloses that the control and management of the same, such real estate deeded to his children, the issue conveyance should be treated and considered by a former wife, was all the real estate as testamentary in character, and not as a owned by Horace G. Smith, Sr.; that, aside deed; and, in so far as the wife is deprived from this, he had no other property or choses thereby of more than one half the real propin action, except a few hundred dollars in erty, it should be held void as to her. cash, deposited to his credit in a bank; and this proposition the zeal and ability of counthat a few hours before his death he executed sel have been largely directed, and our ata check for this to oue of his sons. As a re- tention has been called to numerous authorisult of these transactions, he left his widow ties upon either side of the controversy, some absolutely penniless at his death. She was of them directly in point, and others bearthen old and infirm, and has since been de- ing more or less upon the question presented. pendent upon the charity of friends for her Our examination of the cases cited, however, support. Appellants contend that under does not disclose one showing a parallel to the statutes of this state the obligation of the heartlessness and inhumanity manifested the husband to provide for his wife upon by the deceased. In many of the cases the his decease is simply a moral obligation, husband has attempted to convey his personal and one that cannot be enforced by the courts. property by a gift, to the exclusion of his Wherever the common law has prevailed, it widow, leaving for her reliance such interest has from the earliest times required the hus- as she might be entitled to in his real estate band to support the wife so long as the mar- under the law. In other instances the husriage relation existed between them, and she band has attempted to convey his real estate, remained true to her marital vows. More leaving his personal property to be shared over, it imposes the duty upon the husband by his widow and other heirs but this dehaving property to provide for the support cedent has attempted to strip his widow, at and comfort of his widow after his demise. his death, of all his property, both real and The obligation in this latter respect is to a personal. As to whether such a transaction large extent mutual, and the books are full should be upheld, the authorities are not uniof authorities to the effect that, where either form, and to reconcile them would be imposhusband or wife attempts secretly to convey sible. In Stewart v. Stewart, 5 Conn. 316, property on the eve of marriage, such con- the husband executed a deed conveying all vevances would be set aside for the benefit his real estate to his children, placing the of the defrauded party. So, also, where the conveyance in the hands of a third person, to husband has attempted to convey real estate be delivered to them upon his death, on the in fraud of his wife's right of dower, the happening of which event, two years after courts have never been called upon in vain the execution of the deed, it was delivered to protect such rights. Although in this pursuant to the trust, and the court held that state dower and the tenancy by curtesy are the instrument was strictly a deed, and not abolished, the statute provides that whenever a testamentary disposition; second, that it either party shall die intestate, possessed of was not fraudulent in relation to the widow's real estate, if such intestate leave a husband right of dower. The case is the strongest we or wife and children, one half of such estate have found in favor of appellants' position. shall descend to such surviving husband or The action was, however, at law, and not in wife. Mills' Anno. Stat. § 1524. It is also equity, and the court in the course of the provided that, if any decedent leaves a widow, opinion mentions the fact that that may be a residing in this state, she shall be entitled fraud in equity which is not at law." The to certain personal property, particularly de- case of Small v. Small, 56 Kan. 1, 30 L. R. scribing the same, and that she may have the A. 243, is strongly relied upon by appelsame set apart for her, not subject to the pay.lants. It is held in that case that, subject to

certain limitations, and against any claim of | to the conclusion that they were so withheld the widow made after death, a married man as a result of an understanding between the in Illinois or Kansas may, during coverture, grantor and the three grantees, and that these give away to his children the bulk of his grantees were guilty of collusion in the matproperty, although the well-known effect of ter for the purpose of preventing information the gift will be to deprive the widow of a of the transfer from reaching the wife of the fair share of the property, which would oth- grantor, and to permit the grantor in the erwise have fallen to her. In the course of meantime to continue to exercise exclusive the opinion the Kansas court quotes with ap. dominion and control over the property. In proval the following language from the case the case of Youngs v. Carter, 10 Hun, 194, of Williams v. Williams, 40 Fed. Rep. 521: the facts were that Daniel Youngs, a widow"The main question in its broadest sense, iser, was engaged to be married to the plaintiff simply this: Can a married man give away his property, during coverture, for the pur pose of preventing his wife from acquiring an interest therein after his death? The law seems to be that if such gift is bona fide, and accompanied by delivery, the widow cannot reach the property after the donor's death. Neither the wife nor children have any tangible interest in the property of the husband or father during his lifetime, except so far as he is liable for their support, and bence he can sell it or give it away without let or hindrance from them. Of course, the sale or gift must be absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor it would bind his heirs." The writer of the foregoing seems to have understood that a colorable sale could be set aside. Set aside by whom? If made for the purpose of defrauding an heir, it could only be set aside at the suit of the party defrauded, while the grantor, being a party to the fraud would be refused relief by the courts; hence it does not necessarily follow, as stated by him, that all sales or gifts which are binding upon the grantor are likewise binding upon his heirs.

in August, but in consequence of his sickness the marriage was put off until September. In the interim he, without the knowledge of the plaintiff, conveyed nearly the whole of his real estate to two daughters by a former marriage, and took back from them a lease for his life. The plaintiff did not learn of this conveyance until after marriage, and then immediately brought suit to have the same set aside. The court held that the conveyance was a fraud upon the inchoate right of the wife to dower, and adjudged her entitled to dower in the land so conveyed. In the course of the opinion, which is an instructive one, the court advances the following argument: "When the conveyance in controversy was executed, the relation of the grantor to the plaintiff was of a strictly confidential nature, and a natural expectation inspired as well as implied by it was, that upon its consummation, she should succeed to all the legal rights of a wife in the property owned by him. She acquired by means of it an equitable claim upon him to that extent. But, at the same time, it was not so entirely controlling as to prevent him from discharging such other equitable obligations As our statutes are borrowed from Illinois, as he might have previously incurred to his decisions in that state are entitled to great children. It simply restrained him from disweight. The case of Padfield v. Padfield was posing of his property, fraudulently, for the before the supreme court of Illinois three purpose of preventing it from becoming subtimes. 68 Ill. 210, 72 Ill. 322, 78 Ill. 16. The servient to the rights which the laws of the conclusion of the court is, we think, fairly ex-state secured to a wife." This principle is pressed in the following from Kerr on Fraud announced and carried to its logical result in and Mistake, which is quoted with approval the case of Manikee v. Beard, 85 Ky. 20, in the last opinion: "There can be no doubt where the husband, in contemplation of death, of the power of a husband to dispose abso gave to his children the whole of his personal lutely of his property during his life inde-estate, with the fraudulent intent to deprive pendently of the concurrence, and exonerated from any claim of his wife, provided the transaction is not merely colorable and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition by the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her." Kerr, Fraud & Mistake, p. 220. Accepting this as a correct statement of the law, we think the case made by the pleadings and proofs before us brings the present case within the exception; for here, as we have shown, the transaction was merely colorable, and made under circumstances strongly indicative of fraud upon the rights of the wife. The proof shows that these three several deeds were held from record for the period of four years after their execution. If one of these deeds had been withheld from record for that length of time, this would be a suspicious circumstance, while the fact that all were thus withheld leads very strongly

his wife of the interest therein to which she would be entitled as his widow; and the court did not hesitate to set aside the gift at the suit of the widow. This case is a much stronger one in favor of the widow than that case, for the reason that there the gift was of personal property only, over which the owner has, by the commercial law, greater freedom than over his real estate; and her dower interest remained in the lands left by the husband at his demise, and this dower interest was sufficient to support her. Here, by the fraudulent conduct of the husband, the wife was stripped of all her rights as heir to his personal estate and to his real estate as well. It is not necessary in this case, and it is not our intention, to say anything that will prevent the husband, during his lifetime, from selling his personal property or transferring his real estate for such consideration as he may be willing to accept, or without consideration, provided always that the transaction shall be absolute and bona fide, and not