The individual circumstances which will justify this result are variable, but the fundamental situation inevitably present is that title has been conveyed without fair consideration, and without the knowledge of the prospective wife, at some time before marriage, and usually the husband has retained, by some means, the use of the property during the marriage. Representative cases are: Roberts v. Roberts, 131 Ark. 90, 198 S.W. 697; Murray v. Murray, 90 Ky. 1, 13 S.W. 244, 8 L.R.A. 95; Collins v. Collins, 98 Md. 473, 57 A. 597; Kavanaugh v. Kavanaugh, 279 Mass. 238, 181 N.E. 181; Ward v. Ward, 63 Ohio St. 125, 57 N.E. 1095, 51 L.R.A. 858; Rubin v. Myrub Realty Co., 244 App. Div. 541, 279 N.Y.S. 867; Weller v. Collier, Mo., 199 S.W. 974; and Goff v. Goff, 60 W. Va. 9, 53 S.E. 769. See also Deke v. Huenkemeier, 289 Ill. 148, 124 N.E. 381; Rowe v. Ratliff, 268 Ky. 217, 104 S.W.2d 437.

, that plaintiff's dower in certain real property be admeasured, reversed, on the law and the facts, and new trial granted with costs to abide the event; findings of fact numbered "Ninth" and "Eleventh" are reversed and new findings are made as indicated herein; and appeal from order of said court dated October 18, 1965, denying defendants' motion for a new trial or, in the alternative, for a partial new trial, dismissed as academic, without costs. In this action to admeasure dower, Special Term granted plaintiff judgment after having found that the real property described in the complaint had been conveyed by George Papouchis, who died on September 9, 1962, to his brother, defendant Peter Papouchis, in November, 1923 in fraud of the dower rights of plaintiff, whom George Papouchis married in January, 1924. The judgment, however, must be reversed because the record does not contain evidence that, at the time of the conveyance, plaintiff and George Papouchis intended to intermarry (cf. Rubin v. Myrub Realty Co., 244 App. Div. 541; Le Strange v. Le Strange, 242 App. Div. 74; Youngs v. Carter, 10 Hun 194; Pomeroy v. Pomeroy, 54 How. Prac. 228; Swaine v. Perine, 5 Johns. Ch. 482). Nor was evidence given by plaintiff showing that she lacked knowledge of the conveyance ( Pomeroy v. Pomeroy, supra, p. 233; Daniher v. Daniher, 201 Ill. 489; 1 Walsh, Commentaries on the Law of Real Property, § 101). Last, plaintiff failed to establish that $10 was the sole consideration given for the deed.

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.

But with the passage of time these decisions became more and more feeble. This is particularly true of the decisions governing inter vivos transactions in the form of Totten and joint accounts ( LeStrange v. LeStrange, 242 App. Div. 74; Rubin v. Myrub Realty Co., 244 App. Div. 541; Bodner v. Feit, 247 App. Div. 119; Newman v. Dore, 275 N.Y. 371; Burns v. Turnbull, 266 App. Div. 779, affd. 294 N.Y. 889; Debold v. Kinscher, 268 App. Div. 786, affd. 294 N.Y. 668 [Totten trust]; Krause v. Krause, 285 N.Y. 27 [Totten trust]; cf. Matter of Halpern, 303 N.Y. 33 [Totten trust]; Inda v. Inda, 288 N.Y. 315 [Joint account]). In this same regard, however, mention should be made of a 1933 decision, Matter of Greenberg ( 261 N.Y. 474) as it expresses policy.

According to the terms of the subsection it is only a document of this particular description and presenting this prescribed characteristic which will be effective for the purpose of depriving the surviving spouse of the enlarged statutory rights of participation in the estate of her deceased husband accorded her by section 18. In view of the remedial nature of the legislation effected in this enactment as a whole and the liberal interpretation of its terms in favor of the enlarged rights of the survivor which has continuously been practiced and enjoined ( Matter of Byrnes, 260 N.Y. 465, 474; Rubin v. Myrub Realty Co., Inc., 244 A.D. 541, 544; Matter of Greenberg, 141 Misc. 874, 885, 886; affd., 236 A.D. 733; affd., 261 N.Y. 474, 479; Thompson v. Thompson, 163 Misc. 946, 950; affd., 254 A.D. 601; Matter of Moore, 165 Misc. 683, 690; Matter of Collins, 156 id. 783, 785; Matter of Brown, 153 id. 282, 287; Matter of Harris, 150 id. 758, 760, 761; Matter of Simeone, 141 id. 737, 746), it seems apparent that any document should be subjected to strict scrutiny which is tendered in support of a contention that the relief made available for spouses in general, may not be claimed by the particular spouse whose rights are in question. The present document does not comply with the specification of the statute which is applicable in this regard, namely, that the rights of a surviving spouse may be foreclosed only by an "agreement" "subscribed and duly acknowledged," since this instrument is not acknowledged. The opponents of the widow contend, however, that if the statute be interpreted as invalidating this instrument, it must be hel

To constitute a waiver of the right of election, the instrument must necessarily be drafted in clear and unmistakable language. The provisions of the statute were designed to provide for the proper support of the wife after the death of her husband and should be liberally construed in her favor. ( Matter of Brown, 153 Misc. 282; Rubin v. Myrub Realty Co., Inc., 244 A.D. 541.) The agreement that the widow would accept in lieu of other provisions for her support the sum fixed by the instrument, which was to be paid during the lifetime of both parties, must necessarily be construed that the widow intended to retain any rights she might have after decedent's death.

In all of them there is an element of fraud which is so blatant that it is impossible to ignore it. "In Rubin v. Myrub Realty Co., Inc. ( 244 A.D. 541) and Lestrange v. Lestrange ( 242 A.D. 74) there was a definite misrepresentation by the prospective husband to his prospective wife as to her share in his property after his death, followed by a deliberate stripping of himself of all his inheritable property. In Thayer v. Thayer ( 14 Vt. 107), quoted by the objectant, the court says that the disposition of the property `in the manner disclosed in this case, was mala fide.'