The New York herald., 1922-07-12
Ante-Nuptial Agreement
Never Existed, Insists
COhalan.
CHARGES ARE RIDICULED
Defense Plans Appeal, Saying
Battle Over Big Estate Has
Just Begun.

right In approximately S6,OO0.000 OF
New York real estate. which. she
charges. had been signed away under
conditions Of fraud and duress.
Justice Daniel F. Cohalan. before
whom the case was argued in January
end February and concluded in April.
handed down decision in which he
held that the deeds vesting title to
forty-eight parcels of real estate with
the Meroyn Realty Company were
merely a subterfuge" which in no
way releases Mrs. Stokess inchoate
right Of dover.
Justice Cohalan ruled against each
Of the three points raised by Mr.
Stokes, holding that he saw nothing
upon which to base holding that an
ante-nuptial agreement ever existed
as alleged. and also that the technical
claims Of laches (inexcusable delay
and the statute of limitations made
by Mr.. Stokes ARE without founda-
tion."
Stokes to Make Appeal.
Isidor Gainsburg, Of counsel for Mr..
Stokes. said last night that an appeal
would be filed ''at once" He also re-
marked that Mr.. Stokes 'is Just be-
ginning to fight" Samuel Untermyer.
who appeared for Mrs. Stokes. is in
Europe; Louis Marshall, his ASSOCIATE,
who has taken Mr.. Untermyer's work
IN Mrs. Stokes's application for $4,000
of her two children. Is out Of the city.
The action was to set aside two deeds
that Mr.. Stokes executed in favor of the
Mervyn Realty Company in which Mrs.
that these deeds were without con-
sideration and that their execution by
her was obtained by fraud. coercion,
suppression of facts. and undue in
! fuence." Justice Cohalan reviews her
contention that wife may not release
her dover right to her husband, and
that the procuring of her signature to
the deeds was for the purpose OF Ge-
frauding her OF her inchoate right OF
dover.
The points Of defense. also cited by
Justice Cohalan, were: An ante-nuptial
agreement alleged to have been drawn
by Mr.. and Mrs. Stokes prior to their
marriage in February, 1911. In which
Mr.. Stokes agreed to give her $500 a
month for her personal use while she
lived with him. the claim Of laches.
and also reference to the statute Ct
limitations.
Justice Rules on Agreement.
The alleged ante-nuptial agreement
was not produced before Justice Co
halan, who wrote as follows on this
point:
Whether or not there was such ar
agreement Is the real crux Of the case.
The defendant (Mr. Stokes) says tina,
he does not know II he destroyed II OF
whether II Is among his many scattered
papers His attorneys claim that as II
was an executed agreement, its exist.
| ence at this time and its non-productior
are immaterial. In this 1 differ with
them.
1T was material 20 know II there
was such a paper. When one considers
the defendants story Of his desire tt
protect himself from any dover claim
under his second marriage, It seems i'm
probable IL there were such an agree
ment that the defendant did not keer
/ 4. safely.
'.The impression that this leaves l.
| that there never was any such agree.
ment made or executed. 1t Is true there
was an attempt to show the existence
| OF the agreement by the defendants for
mer attorney 1.-THE reference. 1t Is be-
| lieved, is to A. II. Gleason1. but tha'
testimony does not change my view"
Later he wrote that he sees nothing
upon which to base a holding that an
ante-nuptial agreement ever existed"
wife Can't Give Up Her Rights.
| "It is an elementary principle that a
! wife may not release to her husband
her inchoate right Of DOVER" the opin-
ion continues. "She may enter into an
| ante-nuptial agreemen. covering the re-
lease OF dover. but she may not release
her dover to him directly"
Justice Cohaian then asks pcrtinently
II by Joining In a deed to a corporation
whose stock Is controlled by her hus-
band. a wife may release that dover
right. He continues:
"a corporation Is ordinarily to be con-
sidered q separate entity. but when
consider all the circumstances before
'me-the claim of an ante-nuptial agree
ment and the evidence introduced to sus-
tain that claim; the non-production OF
the agreement; the Withholding Of the
deed to the corporation by defendant
Stokes for over eight years his possess
sion Of II during all that time the facts
attendant upon the execution Of the
deeds, as evidenced by the oral and docu-
mentary EVIDENCE do not believe a
court OF equity should be estopped by o
mere legal fiction Of entity ~
THE evidence fully sustains the claim
that this defendant controlled her
actions. at least In the early days Of
their marriage, and that in signing the
deeds she did so under his influence and
had no knowledge that she was being
called upon to release forever every
right she had In the property"
In the event Of Mr.. Stokes's death
Justice Cohalan's decision gives to Mrs
Stokes, who last year won a legal sep
aration from him, the right to approx
imateiy s2,000.000 of his real estate
holdings Her income from this source
might be about 100000. which would
be exclusive Of the $4,000 annual ali.
mony which she is asking In proceedings
before Justice Edward II. Finch. which
will be resumed next month.