text:
    Bank of Cadiz v. Slemmons et al.
    ■1. Where a national hank makes to one of its directors a loan of money( which in amount and in the rate of interest is in contravention of the national hanking act, the borrower is not estopped to defend against a recovery of interest.
    '2. If a payee take from the maker a promissory note, and at the same time surrender the maker’s note of an earlier date given for a loan of money, the facts, and not merely what the payee called or considered the transaction, will determine whether it was a renewal or payment of the original loan.
    ■3. In rendering judgment on a promissory note given to a national hank, in renewal, into which note illegal interest on the original note was incorporated, the whole interest on both notes will be disallowed.
    4. Payments made generally on a promissory note to a national bank, which note embraces illegal interest, will be applied in satisfaction of the principal.
    5. The refusal of .the court to compel a witness, on cross-examination, to answer a question as to a matter not relevant to the issue, for the purpose of impairing his credibility, is no ground for a reversal.
    >6. Where a judgment on a warrant of attorney is opened by proceedings under the civil code, sections 534-542, and on issue joined, the amount of the judgment is reduced, and the plaintiff takes a second trial, which results in a finding in his favor of the same amount as on the former trial, it is not error to render judgment against Mm for the costs of the latter trial.
    Error to the Court of Common Pleas of Harrison county. Reserved from the district court.
    The defendants executed to the plaintiff, a national bank, a promissory note, dated January 9, 1871, for $10,066.37, due at sixty days, with warrant, authorizing any attorney at law to appear and confess judgment against them.
    The bank, on May 23, 1873, caused judgment to be entered on the note and warrant, in the Court of Common Pleas of Harrison county, on the confession of an attorney, for $4,581.85,
    The defendants, on June 6, 1873, filed in the same court .a petition under the code, section 534 et seq., asking that the judgment be opened and they allowed to .answer, on the ground that the judgment embraced illegal interest. The prayer was granted, and an answer and a reply thereto were filed.
    On trial of the issue to a jury, at the February term, 1874, it was found that there was due to the plaintiff on the note, on May 23, 1873, only $3,268.30; and thereupon the •court ordered that the judgment be modified so as to stand .as a judgment for that sum, instead of the amount for which it was rendered. The plaintiff then asked for a second trial, which was allowed, and the cause was tried to the court, without a jury, on May 12, 1874. On that trial the court found the facts, which are in substance as follows: The defendants, on July 26, 1869, executed to the bank a note for $4,000, and subsequently executed to the bank another note for $7,000, due January 11, 1870. The amount of the note on which judgment was rendered was thus ascertained, on January 9, 1871: Balance of principal on $7,000 note, $5,441.23; interest on that balance, $474.93 ; principal of the .other note, $4,000; interest thereon, $150.21, making $10,066.37. The interest was computed on each of the notes at a rate exceeding six per cene, per annum in advance. The defendants then (January 9,1871) gave the note sued on and paid to the bank $176.16, as interest in advance at the rate of ten per cent, per annum until the note became due. There was no other consideration for the note' for $10,066.87. The original notes were delivered by the bank to the defendants at the time the latter note was executed, and payments were made as follows: May 10, 1871, $5,000; January 29, 1872, $1,000; July 10, 1872, $172.93. These sums were credited on the note, and no specific application was made of such payments by either party.
    The finding and judgment of the court conclude as follows : “ The court further find that said note for $10,066.37, to the bank, of the date of January 9, 1871, did ‘ carry with it,7 within the meaning of section 30 of the act of Congress, under which the plaintiff was established, the interest calculated on the former notes, amounting to the sum of $625.14, and which sum must be here held and adjudged to be forfeited under the law; and that the payments made on the note above stated must be applied exclusively to the payment of the principal of the note exclusive of any interest. The court, therefore, finds that the amount legally due on said note on May 23, 1873, the day on which the judgment by confession was entered herein against the defendants, was $3,268.30. Thereupon the plaintiff filed a motion to set aside the findings and decision of the court, and grant the plaintiff a new trial, for causes stated in the motion; and the court having heard and considered the motion, overruled the same, to which overruling of the motion the plaintiff excepted, and tendered its bill of exceptions, which was signed and sealed by the court, and the same was ordered to be made a part of the record. Thereupon it is considered and adjudged that the original judgment rendered in this ease, by confession, on May 23, 1873, be and the same is hereby modified, so as to stand as a judgment for $3,268.30, instead of its original amount of $4,581.85. It is further ordered and adjudged that the defendants pay all the costs herein, except the costs made on the second trial, and that the plaintiff pay the costs on second trial.”
    On the last trial evidence was given by the bank tending-to show that the original notes w^ere paid off, and that the-note for $10,066.37 was given for a new loan and not as a renewal of the other loans. On the other hand, Thomas, one of the defendants, who was a director of the bank from 1863 until after the last mentioned note was negotiated,, testified that the new note was given as a renewal of the-original loans; and thereupon counsel for the bank asked him, on cross-examination, whether at the time the last, note was discounted, he did not owe the bank upward of $20,000, which he had borrowed of it, besides the loans-above mentioned. The witness objected to the question, the courfisustained the objection, and the plaintiff excepted.
    The plaintiff prosecuted error from the district court, and. that court reserved the case for the decision of this court.

      Laois Lewto'n, for plaintiff in error:
    Section 30 of the national banking act creates a forfeiture, and hence must be strictly construed. Bank of Canton v. Brainard, 8 Ohio, 292; Hall v. The State, 20 Ohio, 7. The law applied the payments to the interest. Miami Ex. Co. v. Bank U. S., 5 Ohio, 260; Wright, 169; 1 John. Ch. 17; 2 Ib. 213; 1 Pick. 4.

      J. M. Estep, for defendants in error:
    The transaction was a .renewal. Horsey v. Heath, 5 Ohio, 353; Merrick v. Bouvy, 4 Ohio St. 60. The whole interest was forfeited. 22 Ohio St. 502, 513. Thomas had a right to object to the question asked on-cross-examination. 1 Greenleaf’s Ev. secs. 451, 454. That the parties are particeps criminis does not estop Thomas. 1 Cowp. 341; 1 Ohio St. 265.
   Okey, J.

Three questions are presented. First, as to-the amount legally due on the note; secondly, whether the the court erred in excluding certain evidence; and, thirdly, whether there is error in the judgment as to costs.

1. There is conflict in the evidence, but it is with respect to immaterial matters. True, an officer of the bank testified: “We did not think of renewing any old debts. The question of the amount due on the old notes, or of renewing "them, was not before us, or considered by the board at all. 'There was no agreement to renew, but only to loan.” But when the facts are considered, they fully support the finding that the real transaction was simply a renewal of usurious loans.

Where interest at a rate exceeding that allowed by law is retained or stipulated for, the contract is, under the laws ■of this state, invalid only as to the excess; while under the ■30th section of the national banking act, “ the statute ■operates on the instrument given for the loan, and, in ■effect, declares it to be invalid as to the entire interest, but •valid and binding as an obligation for the payment of the principal.” First National Bank v. Garlinghouse, Shunk v. First National Bank, 22 Ohio St. 492-502, 508; Hade v. Mc Vay, 31 Ohio St. 231. But it has been decided that under ■the laws of this state, in an action on a note given in renewal, where the original note embraced illegal interest, the consideration may be inquired into, and the illegal interest ■deducted. Baggs v. Loudenback, 12 Ohio, 153. And see Tyler on Usury, ch. xxx. The same principle applies in ■cases arising under the national banking' act (Overholt v. National Bank, 82 Pa. St. 490); though, as we have seen, in those cases the whole of the interest must be deducted.

Under some circumstances, no doubt, one note is regarded .as merged in, or discharged or satisfied by another, so that no suit can be brought on the former; while, in others, the right to sue on an original note is unaffected by the execution and delivery of another note, based on the same consideration. But the principle of those cases has no application here. The inquiry in this case is whether the real ■transaction was an extension of the time of payment of the -original loans; and it is quite clear to us that it was. It is .also clear, in matter of law, that none of the notes coulcl bear interest, for the reason that their interest-bearing power was destroyed by the illegal agreement; and, therefore, payments made generally could only apply to the principal. The court below proceeded on that principle in ascertaining the amount due to the plaintiff- and' hence the finding is correct. The case is wholly unlike Shinkle v. First National Bank, 22 Ohio St. 516; and the cases in which payments, made generally, have been applied first to the payment of interest, have, for the reason stated, no application here.

2. Did the court err in refusing to compel Thomas to answer the question asked on cross-examination, for the purpose of impairing his credibility ? The capital stock of the bank is $120,000. Section 29 of the national banking act provides, among other things: “ That the total liabilities to any association, of any person,' or of any company, corporation, or firm, for money borrowed, including in the •liabilities of a company or firm the liabilities of the several members thereof, shall at no time exceed one-tenth part of the amount of the capital stock of such association actually paid in.” 13 TJ. S. Stats, at Large, 108. Section 9 of the ■same act provides, among other things, that a director “ shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of such association, and will not knowingly violate, or willingly permit to be violated, any of the provisions of this act.”

The matter concerning which the counsel made inquiry, on cross-examination of Thomas, was not relevant to the issue. And, as held in Wroe v. The State, 20 Ohio St. 460 : ■“ The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging ■of his character and credit, from his own voluntary admissions, rests in the sound discretion of the court trying the ■cause.” See State v. Carson, 66 Maine, 116. Hence, there was no error in refusing to compel the witness to answer. "We need not determine what the duty of the court would have been if the answer sought had related to the issue.

Recurring, in this connection, to the defense, it is clear that Thomas, the principal in all the notes, was no more estopped from setting up the illegality, by reason of his position as director than if he had not been officially connected with the bank. Goudy v. Gebhart, 1 Ohio St. 262. It is equally clear that, notwithstanding the unauthorized character of the loan, his contract to pay the principal may be enforced. Gold Mining Co. v. National Bank, 96 U. S. 640.

3. Did the court err in rendering judgment against the plaintiff for the costs made on the second trial ? The act. of 1852, relating to appeals to the district court, provided, “ That if the plaintiff’ appealing shall not recover a greater sum in the district court than in the court from which said appeal is taken, exclusive of costs and interest which may have accrued since the rendition of the judgment in the said court, he shall pay all costs that may have accrued in the district court.” 2 S. & C. 1168. No corresponding-provision having been made in the act of 1858, in relation to second trials (2 S. & C. 1155), the question is, whether the provision, which in terms is only applicable to the district court on appeal, may, by a fair construction, be made applicable to second trials in the court of common pleas.

The provision, as to causes and matters appealable, was, when enacted, quite comprehensive. Appeals were permitted, where the court of common pleas had original jurisdiction, “from all final judgments in civil cases at law,, decrees in chancery, and interlocutory decrees dissolving injunctions.” But, under that system, the district court became overburdened with business. The second trial act was passed, as stated in its title, “ to relieve district courts.” It provided, among other things, that instead of appealing to the district court, a party might have a second trial in the court of common pleas, if that court- had original jurisdiction of the cause, and an issue of fact was joined therein which either party had the right to have tried by a jury; and the act further provided, that the district court should still have jurisdiction, as in the act ■of 1852, except as to the cases for which a second trial was provided. If a second trial was taken by either party, a bond was required, and the trial took place in the ■same manner, and the lieu was preserved, as in cases appealed. Taken together, the statutes secured the right of retrial, either in the district court or court of common ■pleas, as the case might be, in precisely the same causes and matters provided for in the original act, and no others. As originally enacted, the provision, as to costs, was so comprehensive that the plaintiff who appealed, and failed to recover more than in the court below, was required to pay the costs on appeal, although an issue of fact was joined which either party had the right to try to a jury. No change has been made in the terms of the provision; but no reason can be given why the provision should not apply to a second trial in the court of common pleas. Nor can there be any doubt that a proper construction of the statutes requires us to hold that it does so apply. It is to be inferred, that in framing statutes relating to one subject, the legislature was governed by one spirit and policy, and intended the laws should be consistent and harmonious. .In Gill v. Miner, 13 Ohio St. 182, the court went further in ■applying to one court provisions, in terms applicable to •another, than we are required to go in this case. There the question was as to the liability of a sheriff for an escape, where the debtor was imprisoned on process from the court of common pleas, and the creditor failed, on demand, to pay the jail fees weekly in advance. The court say : ■“ The 168th section of the act of March 14, 1853, ‘ of the jurisdiction and procedure before justices of the peace,’ etc., provides: ‘It shall be lawful for the sheriff or jailor, receiving any person imprisoned on execution issued on any civil procedure, at any time, when there is no money in his hands to pay for the sustenance of such prisoner, to ■discharge him from prison.’ Now, the terms in this statutory provision are quite broad enough to cover the question before us; but, inasmuch as the statute in which.it is found is one concerning ‘ the jurisdiction and procedure before justices of the peace,’ its application to cases of imprisonment, under process issuing from courts of record, is. questioned. Be this as it may, it is at least so distinct an indication of legislative policy, as to render it safe for us to-make its provisions a rule of decision in analogous cases.”

It is said, however, that there was no right to a second trial in this case; that the provisions on the subject of second trials are inapplicable ; and it is insisted that the parties, having appeared in court voluntarily, and submitted to a second trial, the plaintiff was entitled to a judgment, for costs, under section 551 of the civil code, which provides : “ Where it is not otherwise provided by this and other statutes, costs shall be allowed, of course, to the plaintiff upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific, real, or personal property.” The proceeding, as we have-seen, was under the civil code (sec. 53.4, et seq.), to modify a judgment rendered on a warrant of attorney, on the ground that it embraced illegal interest; and it is said that, in all the subsequent stages the case remained merely a proceeding under those provisions. If we admit this to be-true, does it follow that section 551 controls the case ? In a case under the former practice it was said : “ It has long-been the unquestioned doctrine in this state, that judgments-rendered upon warrants of attorney may, on motion, upon a proper case being made, be opened and the party let in to defend.” Bank of Wooster v. Stevens, 1 Ohio St. 233-237.. And in Critchfield v. Porter, 3 Ohio, 518, in speaking of the-power to set aside a judgment improperly entered, Sherman, J., said: “ The relief which is now given by courts of' law, upon motion, is equitable in its character, extended upon equitable terms, and so framed as to protect the rights of one party, without sacrificing or jeopardizing those of the other.” And such is clearly the character of the proceeding by petition under the code, section 534, et seq. True, in a case like this, either party would have the right to a trial by jury (Frazier v. Williams, 24 Ohio St. 625 ; Watson v. Payne, 25 Ohio St. 340); but that does not determine the question of costs. There would be very little reason in saying to a defendant who, after resistance, perhaps vexations, had obtained the precise modification of a judgment which he had prayed for, that he must pay all the costs. The proceeding requires nothing of the sort. It is of an equitable nature, and the question of costs is determined according to the code, sections 550 and 554, which vest in the court a discretion as to costs in cases of an equitable nature, and on motions, and the like. Hence, if the last trial can be regarded as strictly in and a part of the proceeding to modify, the court had power to render judgment against the plaintiff for the costs on the second trial. And even if this could be doubtful, the plaintiff is estopped to deny that the second trial was taken in pursuance of the statute then in force on the subject. It follows that, however the retrial may be regarded, there was no error in the judgment for costs.

Judgment affirmed. .


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Lyon v. Fleahmann.
    In an action for damages resulting from the sales of intoxicating liquor, under the seventh section of the statute on that subject (67 Ohio L. 102), it is not necessary that the illegal sales should be proved beyond a reasonable doubt.
    Error to the District Court of Hamilton county.
    Keziah Lyon brought an action, before a justice of the peace, against Philip Eleahmann. After judgment, the case was appealed to the court of common pleas, where the plaintiff filed a petition, setting forth that on July 18,1852, she was married to Thomas Lyon ; that she has been his wife ever since; that during a period óf more than one year immediately preceding the commencement of the suit (May 14,1874), said Thomas was in the habit of getting intoxicated, of which habit the defendant had notice ; that ■during that period, at divers times, the defendant, with such knowledge, unlawfully sold and gave away to said Thomas intoxicating liquor, to wit, whisky, to be drank where sold, to wit, at the defendant’s saloon, in Hamilton county; that said Thomas frequently became intoxicated on the liquor so purchased, and unable to work, and he squandered his money, and failed to provide a subsistence for the plaintiff, who has thus been injured in her means of support. The answer was a denial of any such knowledge or sale. On the trial, evidence was given by the plaintiff tending to prove the allegations of the petition, and, on the other hand, evidence was given by the defendant tending to prove the answer. After the evidence was heard, the court charged the jury, among other things, as follows : “ "What illegal sales of intoxicating liquor, if any, during the period named in the petition, were made by the defendant to the plaintiff’s husband ? Any such sale, if made, was punishable as a criminal offense, upon indictment and conviction. Proof, therefore, upon this point must be beyond reasonable doubt. If the evidence, although sufficient to show that the balance of probabilities is on that side, still leaves some reasonable probability on the other, it will be insufficient.” To this charge the plaintiff excepted. A motion for a new trial, based on that, among other alleged errors, was overruled, and judgment was entered on a verdict in favor of the defendant. The district court having affirmed the judgment, the plaintiff asks in this court to revérse the judgments of both courts, on the ground, among others, that the court erred in the charge to the jury.
    The act of 1854, in relation to intoxicating liquors (2 8. & 0. 1431), provided, as amended (67 Ohio L. 102), as follows :
    Sec. 1. “ That it shall be unlawful for any person or persons, by agent or otherwise, to sell, in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold, or to sell such intoxicating liquors, to be drank in any adjoining room, building, or premises, or other place of public resort connected with said building.”
    Sec. 8. “ That for every violation of the provisions of the first . . . section of this act, every person so offending shall forfeit and pay a fine not less than five nor more than fifty dollars, or be imprisoned in the jail of the county for not less than ten nor more than thirty days, or both of them, at the discretion of the court, and shall pay the costs •of prosecution.”
    Sec. 7. “ That every husband, wife, child, ... or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, . . . shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of •such person or persons, . . . for all damages sustained, as well as exemplary damages.”
    Since the commencement of this suit, changes have been made in these provisions (72 Ohio L. 35 ; 74 Ohio L. 268), but they do not affect this case. 1 S. & S. 1.

      John Johnston, for plaintiff in error.

      Archer ¡j¡¡ McNeill, for defendant in error.
   Okey, J.

In Baker v. Beckwith, 29 Ohio St. 314, it was held that in order to recover in a civil action, under the ■seventh section of the liquor law, it is necessary to aver in the petition, and prove on the trial, facts showing that the sales were made in contravention of the penal provisions •of that statute. The pleader in this case has substantially complied with that requirement. But in Fuller v. The State, 12 Ohio St. 433, it was held that in a prosecution under the first section of that act, the crime must be proved beyond a reasonable doubt. The question here is whether the same rule applies in the civil action.

The penal part of the act, it has been truly said, “ belongs to that class of legislative acts commonly called) 6 police laws/ and is framed with a view to regulate and not destroy. It seeks to do by constitutional means, what the assembly is expressly authorized to do, provide against the evils resulting from the traffic in intoxicating liquors. One of the greatest of these evils is the congregation of idle and dissolute persons at places where liquors are sold and drunk; hence the sale of liquor to be drunk at the place where sold is prohibited.” Miller v. The State, 3 Ohio St. 475-486, Thurman, O. J. This misdemeanor was not an offense at common law, but is malum prohibitum. However serious and deplorable the offense may be regarded, it does not, strictly speaking, belong to that class which involves great moral turpitude; and, although the learned judge’s charge seems to be warranted, aud was doubtless induced by general expressions in Lexington Ins. Co. v. Paver, 16 Ohio, 324, and Strader v. Mullane, 17 Ohio St., 624, no authority can be found for saying an offense of such a grade, when put in issue in a civil case, must be proved beyond a reasonable doubt; nor have I been able to find in the numerous cases on the subject, an intimation from the court that such a rule has been applied in any analogous case. The civil cases in which that rule has been applied, all involved enormous or at least odious crimes, such as murder, arson, robbery, perjury, and larceny, which, if proved, would exclude the perpetrator from society.

The fact that exemplary damages might be recovered in this case (Schneider v. Hosier, 21 Ohio St. 98), is”of no importance, for that may be done in any action for a tort which involves the ingredient of fraud, malice, or insult. Roberts v. Mason, 10 Ohio St. 277. This action for damages is purely statutory. There is, indeed, no such thing as a civil action for a crime as such. It was entirely competent for the legislature to afford the wife a remedy for injuries thus indirectly caused by a seller of liquor, without making the act of selling a crime. If that had been done, the suggestion that in the civil action the sales must be proved beyond a reasonable doubt, would never have been made. But the fact that the seller may be subjected to a criminal prosecution should in no respect affect the degree of proof in the civil action; for the record in the civil case— between different parties — would be inadmissible in the criminal prosecution, which must stand, if at all, on its own merits. Hall v. Barnes, 82 Ill. 228, was the same kind of an action, and the court held, as we do\iere, that the sales need not be proved beyond a reasonable doubt.

Originally, no doubt, civil and criminal cases were alike determined by a preponderance of evidence; but as men became more enlightened, regard for life and liberty increased, and this naturally led to an exception to the rule, or rather to the introduction of another rule, that in criminal cases the accused should not be convicted if there was reasonable doubt as to his guilt. When this rule of the criminal law was first applied to a civil case is involved in some uncertainty, but it has been said that it was so applied by reason of still another rule of the criminal law— never applicable here — that where, in an action of slander or the like, a defendant justified words which amounted to a charge of felony, and proved the justification, the plaintiff might be placed on trial upon that record, without the intervention of a grand jury. Johnson v. Browning, 6 Mod. 217; Cook v. Field, 3 Esp. 80. However that may be, the rule has been applied in many cases, chiefly actions for slander and actions on. policies of insurance, where the issue was directly made in the pleading that one of the parties had committed a high crime; and in Lexington Ins. Co. v. Paver, supra, it seems to have been held by this court that if, in an action on a policy of insurance to recover for a loss, the company allege the fraudulent destruction of the property by the accused, the defense will fail unless the allegation is proved beyond a reasonable doubt. But this court has indicated a purpose in Strader v. Mullane, supra, and Jones v. Greaves, 26 Ohio St. 2, not to extend the doctrine of Lexington Ins. Co. v. Paver; and it is said by some able writers that the tendency of the modern de■cisions is to exclude such rule from all civil cases. 2 Wharf. Ev. § 1246; 10 Am. L. Rev. 642; 2 Greenleaf’s Ev. (13 ed.), §§ 408, 426, notes; Bigelow on Fraud, 475. And see Sloan v. Gilbert, 12 Bush, 51; Ellis v. Buzzell, 60 Maine, 209 ; Decker v. Somerset, etc., Ins. Co., 66 Maine, 406. On the other hand, that such rule of the criminal law is still applicable to certain civil cases is maintained in Barton v. Thompson, 46 Iowa, 30 (1877), and the well-considered case of Kane v. The Hibernia Ins. Co., 39 N. J. (L.), 697 (1877). And see Townshend on Slander, § 404; Wood on Ins. § 101. Because of this conflict in the authorities, and in view of the decision of this court in Lexington Ins. Co. v. Paver, we prefer to express no opinion as to the rule in an action of libel or slander where a justification is pleaded, or an action on a policy of insurance, where a ■criminal destruction of the property by the assured is relied on as a defense, until a case is presented which will directly call for such opinion.

We usually meet, in connection with the claim that all civil cases must be determined by a preponderance of evidence, the admission that if the issue in a civil action involves a crime, the accused is entitled to the presumption of innocence. 2 Whart. Ev. § 1246. In Decker v. Somerset Ins. Co., supra, it was said : “ It can never be improper to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or in■different ones. Such an instruction does not vitiate the rule that in civil suits a preponderance of evidence is all that is required to maintain the affirmative of the issue; for, as already stated, to create a preponderance of evidence, it must be sufficient to overcome the opposing presumptions as well as the opposing evidence.”

We are all of opinion the judgment of the district court and court of common pleas must be reversed, and the cause remanded for a new trial.

Judgment reversed.


text:
    Shaul v. Norman.
    1. Where issue is joined, in an action to recover damages for an assault and battery, as to the guilt of the defendant, and whether or not the injury to the plaintiff was occasioned by his own fault in first assaulting the-defendant, and the jury by their verdict “ do find and say that the plaintiff is entitled to nine hundred and ninety dollars, damages in the » above case,” such verdict is substantially a finding of the issue in favor of the plaintiff.
    2. In such action it is not necessary for the plaintiff to prove the assault. and battery beyond a reasonable! doubt. Lyon v. Fleahmann, ante, 151,. followed.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Champaign county.
    Norman prosecuted an action in the Court of Common Pleas of Champaign county, against Shaul, for an assault and battery. The answer contains, first, a denial; and,, secondly, a statement that the injury to Norman was occasioned by his own misconduct in first assaulting the defendant below. The plaintiff by reply denied the allegations of answer No. 2. Evidence having been given tending to prove the allegations in the answer as well as those-in the petition, Shaul, by his counsel, asked the court to> charge the jury, that in order to entitle Norman, to recover,, he must prove beyond a reasonable doubt that the defendant did unlawfully assault and beat him. The court refused so to charge, and the defendant below excepted. The verdict of the jury, signed by the foreman, was, after stating the title of the case, as follows: “ We, the jury in this case, do find and say that the plaintiff is entitled to-nine hundred and ninety dollars, damages in the above case.” A motion for a new trial was overruled, and judgment was entered on the verdict. In the district court,, where the error in the charge and the supposed defect in. the verdict were relied on, the judgment was affirmed;. .and leave is asked, on the same grounds, to file a petition in error in this court.

      War nock $ Eiehelberger, for plaintiff in error.

      J. K. Mower, for defendant in error.
   Okey, J.

There was no error in the refusal to charge. Perhaps the issue did not necessarily involve the question whether a crime had been committed, but that is immaterial; for, while in the criminal prosecution it would be necessary to prove an unlawful assault and battery beyond a reasonable doubt (Fuller v. The State, 12 Ohio St. 433), I have found no case in which it was even claimed that the ■same rule applied in the civil action. The request to charge was doubtless based on the general language in Strader v. Mullane, 17 Ohio St. 624. The difference between this case and Lyon v. Fleahmann, a,nte, 151, is that here the •criminal offense and the right of civil action exist, not by statute merely, but at common law; yet, as to the question here involved, they ai’e in principle the same. In Elliott v. Van Buren, 33 Mich. 49 (1875), the action was for an assault and battery with intent to ravish; but the court held it was not necessary to prove .the charge otherwise than by .a preppnderance of evidence, and so we hold here.

2. The verdict was, substantially, a finding of the issues in favor of the plaintiff. Markward v. Doriat, 21 Ohio St. 637.

Motion overruled.


author: "White, C. J.

text:
    Knisely v. Evans.
    "Where a negotiable promissory note is transferred by indorsement, after maturity, the legal title is thereby vested in the indorsee; and, after such indorsement, the amount due on the note can not be garnisheed in the hands of the maker, whether he has notice of the transfer or not, as a debt due to the original holder.
    'Error to the District Court of Tuscarawas county.

      The original action was brought by Nathaniel W. Evans, the defendant in error, as indorsee of a promissory note, .against Elias Knisely, the plaintiff' in error, as maker of the note. The note was executed by Knisely on the 14th •day of June, 1872, and was payable one day after date to Harrison P. Arnold, or order, for four hundred and four dollars and seventy cents.
    On the 20th of the same month the note was indorsed .-and delivered to Evans by the payee, Arnold.
    The issues in the cause were submitted to the court for ■trial.
    The following extract from the record shows the findings •of the court, both as to the facts and law arising in the case:
    “ And the court having heard the testimony, and one of the parties having requested the court to state in writing the conclusions of fact found, separately from the conclusions of law, with the view of excepting to the decision of the court upon the questions of law involved in the trial, states the conclusions of fact as follows, to wit: That the -defendant, Elias Knisely, did, on the 14th day of June, a. d. 1872, make and deliver his negotiable promissory note — a copy of which is set out in the petition of the plaintiff — to one Harrison P. Arnold; that on the 20th day of June, a. d. 1872, between the hours of 11 o’clock a. m. and 1 o’clock p. M. the plaintiff, Evans, purchased the note from Arnold, .giving therefor one hundred dollars in money, and cancelling the indebtedness of Arnold to him for two hundred dollars for money before that time by him lent to Arnold, and forty-■two dollars for goods before that time sold by him to Arnold, and that Arnold then indorsed and delivered the note to the plaintiff — a copy of the indorsement being set out in the petition of the plaintiff. That on the 20th day ■ of June, A. D. 1872, at 9 o’clock p. m., the defendant, E. Knisely, was served with a copy of an order of attachment and garnishee notice, issued by John Albaugh, a justice of the peace in and for Goshen township, Tuscarawas county, Ohio, at the suit of -Hummell & Brother against said Harrison P. Arnold; that E. Knisely, on the 27th day of June, a. d. 1872, in pursuance of said notice, appeared before said justice and answered as garnishee, admitting his indebtedness to said Arnold upon said promissory note; that the justice afterward, on the 6th day of August, a. n. 1872, to which time said action had been continued by said justice for service of the said Arnold by publication, made an order that Knisely should pay to the justice so much of his said indebtedness as would pay the claim of Hummell & Brother against Arnold, to wit, the sum of $218.75; and that afterward, to wit, on the thirtieth day of August, a. d-1872, pursuant to said order, Knisely did pay to the justice the sum of $218.75, which was applied to the satisfaction of the judgment rendered by the justice in the action of Hummell & Brother against Arnold, in which the order of attachment had issued; and that Knisely down to, and at the time of, the payment of' said money by him to the justice had received no notice that his said note to Arnold had been indorsed, and transferred to the plaintiff, or any other person.
    “And as conclusions of law upon the facts so found the court states as follows, to wit; That said promissory note was overdue when the same was so indorsed by Arnold to Evans, on the 20th day of June, A. d. 1872; that as against the plaintiff, Evans, the defendant, Knisely, is entitled to be credited as for a payment upon said promissory note, with said sum of $218.75, so paid by him to the justice in said attachment proceeding, as of date of August 30, 1872.”
    Whereupon, the court, after crediting on the note the amount so paid by Knisely, rendered judgment in favor of Evans, for the l’esidue.
    On petition in error, prosecuted by Evans, the district court reversed the judgment of the court of common pleas, and rendered judgment in his favor, for the full amount of the note.
    The object of the present proceeding is to obtain the reversal of the judgment of the district court, and the affirmance of that of the court of common pleas.

      Hanee O'Donnell, for plaintiff in error.

      Charles H. Kibler, for defendant in error.
   "White, C. J.

We see no error in the judgment of the district court.

Whether Knisely, the maker of the note, is entitled, as against Evans, to be credited with the payment made by him as garnishee, depends upon the effect of the process, of garnishment with which he was served in the attachment proceeding of Hummell & Brother against Arnold,, the payee of the note.

The answer to this question is to be found in the statute-under which the proceedings in attachment were had.

But before referring to the statute, it will be well to understand the relation of the parties to the note.

The note was negotiable, and was indorsed to Evans, for value, after maturity. The fact, however, that it was overdue, did not destroy its negotiability. It was still competent for Arnold, the payee, to invest Evans with the full, legal title, by indorsement.

The effect of the indorsement was to make the indorsee,, instead of the payee, the creditor of the maker. Erom the time of the indorsement and delivery, the relation of debtor and creditor arose between the maker and Evans,, and ceased between the maker and Arnold. Nor, in the-absence of statutory requirement, is the indorsee bound to-notify the maker of the indorsement, in order to perfect-his title. Baxter v. Little et al., 6 Met. 10; Davis v. Miller, 14 Gratt. 1.

In order to obtain the process of garnishment, the code- (§ 200) provides, that “ when the plaintiff, his agent or attorney, shall make oath, in writing, that he has good reason to, and does, believe, that any person or corporation, ■in said affidavit named, has property of the defendant in. his possession (describing the same), if the officer can not get possession of such property, he shall leave with such garnishee a copy of the order of attachment, with a written, notice that he appear in. court and answer, as provided in section two hundred and fourteen.”

By section two hundred and fourteen, the garnishee is required to answer, under oath, all questions put to him touching the property, of every description, and credits of the defendant, in his possession or under his control, and is required to disclose truly the amount owing by him to the defendant.

Section two hundred and five declares that the order of ■attachment binds the property attached from the time of ■service, and that the garnishee shall stand liable to the •plaintiff in attachment, for all property, moneys, and credits in his hands, or due from him to the defendant, from the ■time he is served with the written notice.

Erom these provisions, it is apparent that the process of .garnishment could only operate on what Knisley, the garnishee, might bo owing Arnold, the defendant in attachment, at the time of the service of notice. Prior to this -service of notice, the note in question had passed, by indorsement, to Evans. There was, therefore, at the time •of service, nothing owing by Knisely to Arnold, as respects the note, to be garnisheed.

The fact that Knisely, in answering as garnishee, admitted that he was still indebted to Arnold, can not prejudice Evans. The latter was no party to the proceeding, -and is not concluded by it. The answer of Knisely was •doubtless unadvisedly made. Before answering as he did ^and submitting to judgment, he ought to have informed himself whether Arnold still held his note. He admitted •to be true what was not true in fact; but he can not visit the consequence of his mistake upon Evans, who was in no •way privy to its commission.

It is claimed by counsel for plaintiff in error that the defense is authorized by section three of the act relating to ■negotiable instruments. 1 S. & C. 862.

The section provides, in respect to promissory notes, that if the indorsee of a note indorsed after maturity shall institute an action thereon against the maker, the defendant ■shall be allowed to set up the same defense that he might have done, had the action been instituted in the name and for the use of the person to whom the note was originally made payable.

Without undertaking now to define the scape of the operation of this section, it is sufficient in the present case, to say, that independent of the process of garnishment, the payment by Knisley 'to Hummell & Brother would have constituted no defense to an action instituted on the note by the payee himself. And, as already shown, the process of garnishment constitutes no defense, for the reason that, .at the time of service, the garnishee was not indebted to Arnold, the defendant in attachment, the note having previously been indorsed and delivered to Evans.

Judgment affirmed.


author: By the Court.

text:
    Kosminski et al. v. Barrett.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Montgomery county.

      W. C. Howard, for the motion.

      William Craighead, contra.
   By the Court.

Under the act of May 14,1878, to revise the laws relating to civil procedure, § 3, chapter 1, title 4 (75 Ohio L. 804), the applicant may file his petition in error in the district court without leave. Hence, where there are no special reasons for coming directly to this court, the applicant should seek his remedy in the district court.

The rule applied to applications for leave, made to this, court directly from the court of common pleas, is applicable in the present case. Benham v. Conklin, 3 Ohio St. 509; State ex rel. v. Williams, 26 Ohio St. 170.

Leave refused.


author: McIlvaine, J.

text:
    Bowen v. Bowen et al.
    1. Where dower is harred by a legal jointure, an election, under section 43 of the wills act, is not necessai'y to entitle the widow to take the provisions made for her in her husband’s will; but where the bar is by an equitable jointure or settlement merely, qucsre.

    2. The year within which the election under said section must be made begins to run from the date of the service of a citation, and where the widow, appearing in open court without service of a citation, declines to make her election, she does not thereby waive the issuing and service of a citation, or estop herself from denying that a citation had been issued and served.
    3. Whether a widow can take the provisions made for her in the will of her-husband, and also under an ante-nuptial contract, whereby her right of dower is barred, depends on the intention of the testator.
    4. Where, by ante-nuptial settlement, a sum of money is secured to the wife, to be paid after the husband’s death, and, by a subsequent will, the husband directs all his just debts of every kind to be first paid, and makes provision for the support of his wife during widowhood, with a declaration that the intent and meaning of the testator was to give to-his wife the provision made for her in his will, she may claim the provision in the will, and also that made for her in the settlement.
    Appeal. Reserved in the District Court of Marion county.
    The original action was brought by Thomas C. Bowen, administrator, with will annexed, of Ozias Bowen, against Emma M. Bowen, his widow, and other legatees and devisees under the will, to obtain the advice and instruction of the court as to his duties in the premises, and especially as to the rights of Emma M. Bowen, widow.
    Previous to the marriage of the testator and his surviving wife, whose name was Emma M. Wilson, the following contract was made and entered into by them :
    “This agreement, made this 20th day of April, 1871, between Ozias Bowen, of Marion county, Ohio, and Emma M. Wilson, of Branch county, in the State of Michigan, witnesseth:

      “ That whereas, the said Bowen and the said Emma M. do contemplate a marriage with each other; and whereas, the said Bowen, in consideration thereof, is desirous of settling upon and securing to said Emma M. a reasonable and just competency out of his estate, to be held by her in lieu of dower in his lands, and in place of any homestead, year’s allowance, or other share in or distribution of any part of his personal estate, moneys, or effects to the said Emma M., as widow, survivor, or heir of him, the said Bowen:
    “ Now, know ye, that I, the said Ozias Bowen, have paid unto the said Emma M. Wilson the sum of two thousand dollars, and to carry out the purposes of this settlement have executed and delivered to the said Emma M. my promissory note for eighteen thousand dollars, to be paid to her within thirty days after my decease (if she shall so long live) ; and by this instrument I acknowledge myself •bound to pay unto her the said sum of $18,000, and declare that the same shall operate upon and be a valid first lien upon all of my real and personal estate, moneys, and effects wherever situated.
    “ And I, the said Emma M. Wilson, in consideration of the premises, and of two thousand dollars, now paid to me, by the said Bowen, and of the further sum of eighteen thousand dollars to be paid to me, out of the estate of said Bowen, as above stated, do hereby release, and forever quit claim unto the said Bowen, all the right, title and claim of every kind, which I now have, or which, by virtue of my said marriage, I may acquire, or become entitled to claim or to hold. And, also, for like consideration, I release all of my right, title, and interest to the moneys and effects' and personal property of the said Bowen, which he may now ■or hereafter possess, and as well as any right or claim . thereto which I may now have or that I may acquire by means of my said marriage.
    “ To have and to hold said lands, personal property, moneys, and effects, wheresoever situated, unto the said Bowen and to his heirs and assigns forever, free and wholly discharged from, any claim of mine, as wife, widow, or heir oí said Bowen, arising under any law of the State of Ohio,, or of Michigan, or of any other state or territory whatsoever, or under what is known as the common law.
    “ This instrument to take effect and become operative,, to all intents and purposes, according to the true object and meaning of the parties hereto, from and after the marriage of said pai’ties.
    “ In testimony whereof, the said Ozias Bowen and the said Emma M. "Wilson have hereto set their hands and seals, this 20th day of April, 1871.

      “ Signed, sealed, and acknowl-^ edged in presence of [
    M. B. "Wilson, [
    Ozias Bowen, ' [seal.]
    Emma M. "Wilson, [seal.] ”
    Jno. S. Wilson.
    The “ promissory note ” referred to in the foregoing agreement was as follows:
    “ Marion 0., April 19,1871.
    “ For value received, I promise to pay Emma M. Wilson eighteen thousand dollars with interest from and after my decease. No part of the principal is payable until thirty days after my death. This note is given by me and accepted by the payee, upon an ante-nuptial settlement made by me and the payee, in relation to which a deed, signed and sealed by us has this day been duly executed, to which reference-is made for more certainty.
    “ $18,000. O. Bowen.” .
    Immediately after the execution of the above contract,, the contemplated marriage was consummated.
    On the 17th of September, 1871, Ozias Bowen, the husband, executed his last will and testament, of which the following is a copy :
    “ In the name of the Benevolent Father of all—
    “I, Ozias Bowen, of Marion, Ohio, do make and publish this my last will and testament:
    “ Item, 1. I direct that all my just debts of every kind, "be first paid.

      “ Item, 2. Having always made prompt payment of all collections, and all moneys that have in any wise, come to my hands, I direct and require my executrix hereinafter named to interpose the statute of limitation as a defense for the purpose of preventing fraud.
    “ Item 3. I give to my present wife, Emma Bowen, the use of my house, and the thirty-three acres of land on which the same is situated, and which makes my present homestead, together with all the furniture and books therein contained: Also, all my carriages, horses, and chattels used by me on this the place which constitutes my present home: Also, the use of and benefit of fifty thousand dollars; to be held and enjoyed by her, together with said real estate, and personal property, so long as she shall remain my widow. If this allowance shall prove insufficient to pay the taxes and repairs of said premises and the support of said wife, then I give to her the use and benefit of ten thousand dollars more, to be held during her widow-hood as aforesaid.
    “ Item 4. I give to my grandson, Corwin Harper, the sum of four thousand dollars, to be paid to him when he shall arrive at the age of twenty-one-years which sum I direct to be invested, as soon as my estate shall be settled, in government stocks or bonds, for his use until he shall arrive at the age aforesaid.
    “ Item. 5. I give to my son, Thomas C. Bowen, in fee simple, my law-office building, and the lot on which the same is situated, together with all the books and furniture therein contained. Also, the sum of four thousand dollars.

      “ Item 6. I give to my son, Laurin D. Bowen, the sum of six thousand dollars, to be deducted from the amount I now hold against him as due to me. The sum so due to me being fifteen thousand dollars, the balance of his note for said sum so due me, with the interest thereon, must be paid to my estate.
    “ Item 7. I give to my son, Marcellus Bowen, the sum of six thousand dollars.
    “ Item 8. I give to my son, Alburtus Bowen, the sum of six thousand dollars.

      “ Item 9. I give to my son, Orville Bowen, the sum of six thousand dollars, to be paid to him when he shall arrive at the age of twenty-one years, and which sum I direct to be invested for his use in government bonds, and so remain until he shall arrive at the age aforesaid, and then to be paid to him.
    “ Item 10. I give to my daughter, Flora P. Bowen, the sum of six thousand dollars.
    “ I have made advances to some extent to my son, Thomas O. Bowen, my son, Marcellus Bowen, and my son, Alburtus Bowmn, which will appear on my books in part and in part by notes; and it is my will, and I hereby direct my executrix to deduct such advances so made by me to my said sons as shall be found charged on my said books, or be evidenced by note.
    “ Item 11. I direct that so much of my estate as is not hereinbefore disposed of shall, at the end of three years after the taking effect of this my will, be by my executrix distributed equally to and among my children and grandchild above named.

      “Item 12. I hereby direct that at the death of my said wife, Emma Bowen, or when she shall cease to be my widow, the estate hereinbefore devised and set apart for her use be, as soon as the same can be done without sacrifice, reduced to money, and the amount arising therefrom, together with the sums hereinbefore set apart to raise an income for my said wife, be disposed of as follows :
    “ First. There shall be paid therefrom to my said daughter, Flora P. Bowen, the sum of two thousand dollars.
    “ Second. There shall be paid therefrom to my son, Marcellus Bowen, the sum of two thousand dollars.
    “ Third. There shall be paid therefrom to the Presbyterian Church, of Marion, Ohio, the sum of two thousand dollars.
    “And that the balance thereof that shall then remain, I hereby direct to be equally distributed to and among my children and grandson above named. For the purpose of carrying into effect this, the 18th provision, I hereby appoint Philip Dumbaugh as said trustee ; and in the event of his death or declining to accept my trust, I hereby appoint John R. Garvenou as trustee as aforesaid.
    “ I hereby declare it to be my intent and meaning in Item 3 of this my will to give to my said wife, Emma Bowen, the income arising from the said sums of fifty thousand dollars and ten thousand dollars, and to give her the use of the house and land therein mentioned during her widowhood, as therein stated.
    “ I hereby constitute and appoint my wife, Emma Bowen, •executrix of this my last will and testament, and direct that my son, Thomas 0. Bowen, aid her in the discharge of her duties as such executrix; and I hereby revoke all former wills by me made, and I declare it to be my will that my said wife, Emma Bowen, shall not be required to give bail for the discharge of her duties as executrix. I hereby appoint Cooper K. Watson as attorney, to act with my son, Thomas C. Bowen, in the settlement of my estate.
    “ In testimony whereof, I have hereunto set my hand and seal, this 17th day of September,-a. d. 1871.
    “ 0. Bowen, [seal.] ”
    Shortly after the execution of the will, the testator died* .and the will was duly probated on the 28th of September, 1871, and letters of administration cum testamento annexo were issued to the plaintiff.
    On the 30th of September, the following entry was made in the records of the probate court:
    In the matter of the Estate) of Ozias Bowen, deceased, j

      M Marion coimtv Ohio September 30, 1871.
    This day came into open court Emma Bowen, widow of Ozias Bowen, deceased, who, being asked by the court whether she would now elect to take under the will of said Bowen, or under the provisions of the statute, and being informed that she had one year from this date in which to make her election, she thereupon declined to make her election at this time. J... R. Garberson, Probate Judge.

    On the 6th of February, 1873, the widow elected to take under the will, and thereupon the following entry was recorded in the probate coui’t:
    In the matter of the Last Will and) Testament of Ozias Bowen, de- V ceased. j

      In Probate Court, Marion county, 0., February, 6,1873.
    Be it remembered, that on the 6th day of February, a. d. 1873, personally appeai’ed in said court Emma M. Bowen, widow of said Ozias Bowen, who, being fully infox’med in the premises, elects to take under the will of her said husband, and to accept the provisions made for her therein, and requests that her said election be entered on the minutes of this court; which is done accordingly.
    J. R. Garberson, Probate Judge.

    No other entry was ever made in relation to the election of the widow, and no other testimony was offered on the point, except, it is admitted, that ever since the death of her husband, she has claimed her rights under the ante-nuptial contract.
    The cause was tided in the court of common pleas, where a decree in her favor, as to her claim under the will, was rendered, but her claim under the contract was denied. On appeal to the district court, the cause was submitted upon the pleadings (from which the foregoing facts ai’e abstx-acted), and the following agreed statement:
    1. That the note and contract copied in the petition were found, after the death of said 0. Bowen, in his safe, at his law office, and immediately after his death were demanded by said Emma, and were soon after delivered to her by said administrator, as stated in the petition.
    2. That the said administrator has paid to said Emma M. the sums of money following, and has taken her receipts therefor:
    October 9, 1871.................................... $500
    January 17, 1872................................. 100
    Januaxy 22,1872......... 900
    April 3, 1872....................................... 200
    May 1, 1872......................................... 300
    October 11, 1873,.................................. 2,500

      Eor all said sums, except the last, receipts were taken, to be refunded to said administrator out of, or deducted from,, the first or any money coming to said Emma M., or to be paid to her out of said estate, as widow, heir, distributee, or otherwise; and the last was indorsed on and receipted for on said note and ante-nuptial agreement. The administrator has also paid the taxes on all the property of the estate, and has charged the amount in his account rendered to the probate court.
    3. The ages of the several children and the grandchild of the said Ozias Bowen, were as follows :
    Thomas C...,..................................... 31 years.
    Laurin ........................................... 27 “
    Marcellus ........................................ 25 “
    Albertus.......................................... 24 “

    Flora.............................................. 20 “
    Orville............................................. 16 “
    Corwin Harper.................................. 9 “
    None- of them had property of their own, except one, and he owed the testator largely. Three of them — Laurin, Albertus, and Marcellus — were married. Laurin was in business at Cleveland.
    4. The indebtedness' of the estate amounted to $10,000. Thomas Dye had sued Bowen in his lifetime, on account of matters growing out of the administration of an assignment, in which, by amendment since his death, he claims-$150,000 — no part of which is admitted to be due him.
    5. The personal estate of the testator was returned by the appraisers, at $133,000, which included some bad accounts, and some personal property included in the third clause of tbe will as given during widowhood to the said Emma M. Exclusive of them, the fair value of these assets was $120,000. There is real estate belonging to tbe estate, besides that devised in said clause of the will, and that devised to T. C. Bowen, worth about $9,000. The real estate included in that clause was worth $30,000.
    6. Said O. Bowen’s age at the time of his marriage was-sixty-six years, and the said Emma M. twenty-six years.

      7. The property of said 0. Bowen was acquired previous to his marriage with the said Emma M.
    C. K. Watson,

      Attorney for Petitioners and Heirs.

    Scott & Harris and R. P. Ranney,

      For defendant, Emma M. Bowen.

    Upon this record, the cause was reserved for decision in this court.

      W. Z. Davis, for plaintiff:
    1. The ante-nuptial contract is not a debt, nor a covenant in consideration of marriage; but is a contract in view of approaching marriage, and in consideration of mutual covenants, on the part of the husband to pay, and on the part of the wife to accept, a sum of money in lieu of dower, etc. Goldsmith v. Goldsmith, 1 Swanston, 219; Gilliam v. Chancellor, 43 Miss. 437; Smiley v. Smiley, 18 Ohio St. 543; Gibson v. Gibson, 15 Mass. 111.
    2. If not a debt what is it ?
    It partakes of the character of a jointure, but is not a legal jointure. 1 Swan & C. 518; 1 Wash. Real Prop. 264. A legal jointure is, however, a provision. “The words jointure or provision are synonymous terms.” Per Lord Hardwicke in Harvey v. Harvey, 1 Atkins, 561; Peachy on Mar. Set. 356-358; Atherby on Mar. Set. 509. And it implies a reasonable and competent livelihood. See 1 Wash. Real Prop. 265. And it is a provision in lieu of dower. 1 Wash. Real Prop. 264; Atherby Mar. Set. 504, 508.
    This contract possesses those qualities of a legal jointure, and such a contract will, in equity, be made effective as a jointure. 1 Wash. Real Prop. 268, § 19; Stilley v. Folger, 14 Ohio, 650.
    But an equitable jointure is a contract for a provision in bar of dower, and hence is subject to all the rules applicable to' contracts. 1 Wash, on Real Prop. 267, § 17; Peachy on Mar. Set. 356, 357, 358.
    If, therefore, it be not purely voluntary, but is a contract •upon a consideration, if the consideration fails the contract fails. Vide Hasting v. Dickinson et ux., 7 Mass. 153, and Gibson v. Gibson et al., 15 Mass. 106 passim.

    So that, if the husband die intestate, the wife’s inchoate right of dower, homestead, etc., is vested eo instanti, and in the same instant the contract becomes an equitable bar. But if the husband die leaving a will containing a provision in favor of the wife, the wife’s right of dower, etc., is not vested, but is suspended until her election, and meantime the ante-nuptial contract remains dormant. If she elects, to take under the statute, the contract then becomes effective. If she elects to take under the will, the contract falls, because she does not, as she agreed, accept tbe money in lieu of dower.
    3. The question of satisfaction is to be determined from the intention of the testator, rather than from any artificial rules concerning difference in nature, amount, time of payment, or beneficial character of the devise or bequest on the one hand, and the iointure on the other. Atherby on Mar. Set. 539.
    4. Cases of satisfaction and of performance must not be confounded. In cases of satisfaction the question is: Was tbe thing done intended as a substitute for the thing covenanted? and the right of election is incident. ' In cases of performance the question is: Has that identical act which the party contracted to do been done ? and there is no election. 1 Swanston, 219; Atherby on Mar. Set. 546.
    5. A ease for election arises whenever the intention of the donor is either expressed or implied that the second gift shall be effectual only in the event of the donee declining the first, and the substance of the gifts combined is an option.. Dillon v. Parker, 1 Swanston, 394, note.
    6. We affirm, and we regard it as a very important point in the present case, that the rule that a legacy is prima facie a bounty is abrogated by the statute in Ohio, so far as it may apply to legacies in favor of the wife of the testator.
    We go further than that, and maintain that by force of the statute, it is, in Ohio, a presumtion of law that a legacy to the wife of the testator is prima fade given in lieu of her legal rights and claims upon the testator’s estate; and that .a testator’s widow can take nothing under her husband’s will without an election under the statute.
    The court is referred to the 43d and 44th sections of the .act relating to wills. 2 Swan & Critch. 1623.
    The statute is distinct, unqualified, and imperative. In all cases, unless it plainly appear from the will that the provision is in addition to dower, there must be an election. In no other way can the widow acquire title to what is •given under her husband’s will. Stilley v. Folger, 14 Ohio, 610. There are cases which hold that under certain circumstances the widow will be estopped to deny that she has elected. Thompson v. Hoop, 6 Ohio St. 480; Stockton v. Wolley, 20 Ohio St. 184. But these cases do not imply that, as against an heir or co-devisee, the widow may claim under the will, without an election, as required by the statute. And see Peachy on Mar. Set. 367, citing Gibson v. Gibson, 1 Drew, 51; Broughton v. Errington, 7 Brown’s Parl. Cas. 12; Strohan v. Sutton, 3 Ves. Jr. 252.
    7. The 43d section of the statute which we have been ■considering is a statute of limitations. 2 Disney (Cin. S. C.), 284, 285; and the widow failing to elect within the statute (which is one year) is plainly remitted to such rights as she may have independent of the will — in this case her contract.
    The citation will be presumed to have been issued and .served. Davis v. Davis, 11 Ohio St. 388.

      S. Burke, also for the plaintiff:
    In the view I take of this case, it seems to me quite unnecessary to spend much time in the consideration of .authorities of other nations and of other states where they ■have no statute similar to our wills act, §§ 43, 44. It will not be denied that the intention of the testator is to govern in all cases in the interpretation of his will. When■ever the court can ascertain what was the intention of the testator the court will give effect to that intention. That intention is to be gathered, not from the will alone, nor by one rule of interpretation rather than another, but it is to. be sought in the language of the will, aided by such extraneous facts and circumstances as will put the court as near as possible in the position occupied by the testator at the time he made the will; and looking at this will, and standing in the position of the testator, it will be observed that the testator desired to provide for the widow liberally, munificently, while she remained his widow, and that he desired that his children should inherit the residue of his estate; and I think we may properly add in this case, as bearing upon the intention of the testator, that he was a man of learning and intelligence, and that he was, from his long experience at the bar and upon the bench, familiar with our statute of wills, with the rights of his widow, and with the rights of his children.
    It is clearly established that the ante-nuptial contract took the place of, and was substituted, by the agreement of the parties, for the provision made by statute for a widow. Now, what we contend for is, that as the contract was, by the agreement of the parties, substituted for the provision made for a widow by statute, that when a will is afterward made that the widow is put to the same election between the will and the thing substituted for the provision made by the statute, that she would have been required to make between the statute and the will. It seems to us, without going into the question as to whether the amount agreed to be paid by the ante-nuptial contract as a substitute for the amount that the widow would be entitled to by the statute, creates a debt, technically considered, or not; that when, such a contract having been made, the husband afterward makes a will by which he makes ample provision for the support of the wife, that she is necessarily put to her election between the contract and the will, and that she clearly is not entitled to both. The authorities cited in the brief of my associate very clearly and very fully sustain this point.
    1. It is very clear, under our statute, that a widow can take nothing under the will of her husband without an election upon her part to take under the will. In other words, it is very clear under the statutes of Ohio that whatever a widow may take under the will of her husband must be taken by her free choice, by her accepting the provision made for her in the will. Now, we think, in this case, that the record clearly shows that Mrs. Bowen was cited upon the 30th of September, 1871, to make her election. The gentleman upon the other side claimed that the record does not show affirmatively that the citation issued. We hold this is unnecessary. The record does not show that it did not issue, and there is no proof in the case showing that it did not issue. The record clearly shows that she was in court upon that business; that the probate judge explained to her what her rights were, and called upon her to make her election. He informed her, however, that she had one year from that time within which to make it. The probate judge clearly understood his duty and the law, and, taking the record as it reads, it appears with sufficient clearness that she was cited into court for the purpose of making her election. She failed to do so within a year from this time, and we claim by such failure she lost the right to make an election and to take anything under the will.
    2. The construction of the will and ante-nuptial contract, which we contend for, is not only consistent with reason and sound in principle, but it is also sustained by adjudicated eases. The case of Williams v. Gray, 1 Cald. 104, is clearly in point. Indeed, it covers every point in the case, and, if followed, is decisive of it. See, also, 2 Story’s Eq. 1075 to 1077; Bouvier Hie. 460.
    In principle the case of portions to children, where there is a contract obligation to give them a portion, is like the case at bar. In all such eases the courts lean against double portions, and uniformly hold that legacies, unless the contrary expressly appear, operate as a payment or satisfaction of the obligation to give a portion. See 2 Williams on Executors, 1410, and eases in note; 2 Story’s Eq. Jur. 1109; Roper on Legacies, 68; 2 Redfield on Wills, 194.
    The above construction is also maintained by numerous cases upon the subject of elections. 2 Williams on Ex’rs, 1547 to 1559; lb. 1600; 83 Grov. 387; 13 Ohio St. 95; 2 Redfield on Wills, 352, 354, 857; 3 Redfield, 388; 37 Yt. 414; 3 Ohio, 5; 21 Pa. St. 376; 31 Barb. 413; 29 Mo. 408.

      C. K. Watson, also for plaintiff'.

      S. R. Harris, for Mrs. Bowen :
    We claim that Mrs. Bowen is entitled to the legacy left, her by the will, in addition to the promissory note ; that she is a creditor of the testator for the note mentioned in the ante-nuptial agreement; and that she is also his legatee for an annual income from his estate during her life and widowhood. One she has by contract; the other by a subsequent devise of the testator.
    The testator owed her the note as a debt, and he chose,, in addition, to bequeath to her by his will an annuity contingent upon her life and widowhood, to keep up taxes- and repairs of the homestead and support herself.
    One she gets of right by contract as a creditor ; the other' she gets as an object of the testator’s bounty — one being; absolute and the other uncertain and contingent; no presumption can arise that the legacy satisfies the debt. Forsight v. Grant, 1 Vesey, Jr., 298; Richardson v. Elphistone, 2 Vesey, Jr., 463; Folson v. Collins, 4 Vesey, Jr., 482;: Stocten v. Stocten, 4 Simons, 152 ; Story’s Eq. Jur., §§ 1122, 1123 ; Cloud v. Clinkenbeard, 8 B. Mon. 398 ; Ford v. Gooding, 9 Barb. 377 ; Owens v. Simpson, 5 Rich Eq. 420.
    Her election to take under the will does not estop her from setting up her claims against the estate of every other character than as widow. Her election affects her rights as widow, and nothing else. Gardner v. Comm’rs, 16 Ohio St. 366, 367.
    Mrs. Bowen being a creditor of the estate, we claim the legacy in this case is not a satisfaction of the debt.

      We concede the rule.to be that a legacy given to a creditor, equal to or greater than the debt, is, in general, deemed a satisfaction of it; but the rule has so many exceptions that it is regarded with disfavor by the courts. Chancey's case, 1 P. Wms. 409, note by Cox; Strong v. Williams, 12 Mass. 392 ; Smith v. Smith, 1 Allen, 130.
    In Williams v. Crary, 4 Wend. 449, Savage, C. J., says: ■“ There are so many exceptions that the rule on this subject seems to be that a legacy shall not be deemed a satisfaction of a debt unless it appears to have been the intention of the testator that it should so operate. See also Clark v. Bogardus, 12 Wend. 68 ; Mulheran v. Gillespie, 12 Wend. 351; Eaton v. Benton, 2 Hill, 579.
    Where a legacy is given upon a contingency, it has never “been held to be a satisfaction, for in these cases it must be a satisfaction at the time, and there must be no uncertainty whether the legacy will take effect or not. Spinks v. Robins, 2. Atk. 493.
    It does not apply to an open and running account. Rawlings v. Powell, 1 P. Wms. 299. Nor to an extinguish-ment of a negotiable security, such as a bill of exchange. Carrr. Eastbrooke, 3 Ves. 561, 564.
    In the present case there is no pecuniary legacy to op•erate as a set-off against the pecuniary liability. On the •contrary, Judge Bowen’s will contains an express direction to pay all the testator’s debts. This rebuts the presumption that the legacy to his wife was intended as a satisfaction. Ford v. Gooding, 9 Barb. 371; Cole v. Willard, 4 Jur. 11. S. 988; 8 B. Mon. 398 ; Ford v. Gooding, 9 Barb. 377; Berry v. Berry, 6 Ir. Oh. 497 ; 2 Strange, 1217.
    One counsel claimed in the court below that the ante-nuptial agreement constituted a jointure.
    The answer to that is brief:
    The first requisite of a jointure is thus stated in Hilliard’s Law Dictionary, 513 : “ The provisions for the wife must take effect in possession or profit immediately after the husband’s death.”
    “First, it is necessary that the jointure should take place immediatlely after the death of the husband.” Peachy on Marriage and Family Settlement, 358.
    The thirty days’ clause in the ante-nuptial agreement destroys it as a jointure. Suppose, however, that, by virtue of Mrs. Bowen’s agreement to relinquish dower, the instrument could be called an equitable jointure, what follows?
    She thereby relinquished her right of dower, but not her right to receive a legacy. A jointure, legal or equitable, is a bar to dower alone.
    That the widow may have a jointure and legacy both, is too well settled to require argument. Sugden’s Essay on the Real Property Statutes, 257; Peachy on Marriage and Family Settlements, 363, and cases cited; Creswell v. Byron, 3 Br. C. C. by Belt, 362, cited by Lord St. Leonards, in Creag v. Creag, 8 Ir. Eq. 70; also see Pickering, v. Lord Stamford, 3 Ves. 332; Knight v. Galthorpe, 1 Vern. 347; Berry v. Berry, 6 Ir. Ch. 497; Peachy on Mar. Set. 501, and cases there cited; 1 Roper on Legacies, 374 (4th ed.); 2 Story’s Eq. Jur. 529, 530.

      B. P. Ranney, argued the case orally for Mrs. Bowen.
   McIlvaine, J.

The questions presented for decision in this case relate to the right of the widow in the estate of the testator. She claims as a creditor under the ante-nuptial agreement, and also as devisee and legatee under the will. The residuary legatees deny her right under both the contract and the will, and contend that she is entitled to take under the contract only. They contend, in the first place, that there was no election, under the statute, by the widow to take under the will.

Before this point need be determined, another of some •difficulty arises, namely, Did this case come within the statute? The provision of the statute (section 43 of the wills act, as amended April 2,1848, S. & C. 1623), is as follows:

“ (43.) Sec. XLIII. If any provision be made for a widow in the will of her husband, it shall be the duty of the probate judge, forthwith after the probate of such will, to-issue a citation to said widow to appear and make her election, whether she will take such provision or be endowed of the lands of her said husband, and said election shall be made within one year from the date of the service of the citation aforesaid; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she should have such provision in addition to-her dower.”

And section 44 provides, “ and if the widow shall fail to make such election she shall retain her dower,” etc.

By the terms of the ante-nuptial contract, the right of the widow to dower, in the real estate of the testator, as well as her distributive share in the personal estate, was barred. This proposition is not disputed. Her election under the statute, to be endowed, would, therefore, have-been fruitless; she could not thus have avoided the effect of her valid and subsisting ante-nuptial contract.

It is only as between the right to be endowed and the right under her husband’s will, however, that the statute requires the widow to make an election. There is no election required, under the statute, as between the provisions of a will and the rights of the widow under a settlement or jointure. Nor does it make any difference whether the settlement or jointure be in bar of dower or not. We are not authorized to extend the presumption which this statute creates beyond its terms. The presumption under the statute is, that provisions in a will in favor of the testator’s wife are in lieu of dower and her distributive share, unless an intention to the contrary plainly appears in the will. Whether or not any other interest or claim, which a widow may have in or against the estate of her husband, is satisfied by provisions in her favor in his will, must be determined, not by the rule of the statute, but upon principles of reason and right which exist entirely independent of the statute.

But, inasmuch as the ante-nuptial contract before us does not constitute a legal or statutory jointure (section 2 of the act relating to dower, S. & C. 518, also see Grogan v. Garrison, 27 Ohio St. 50), and is not, therefore, a bar to dower by virtue of any statutory provision, the question arises whether an election under the statute should not have been made between the provisions in the will and her technical right of dower, although such right of dower was subject to be defeated under the contract as an equitable jointure.

While we are inclined to the opinion • that, under such circumstances, such election was not necessary to protect the widow in her claim under the wTill, we do not find it necessary to decide the point, as we are all satisfied that her •election to take under the will was duly made in accordance with the statute.

The objection made against the validity of the election to take under the will, as recorded in the probate court, of the date of February 6,1873, is that it was not made within the time prescribed by the statute. The time fixed by the -statute is, within one year from the date of the service •of the citation ” for her appearance. No citation was ever served upon her, and, therefore, time did not begin to run against her right to elect. It is claimed, however, that the widow is estopped from denying the service of a citation, by the entry found in the record of the probate court of the date of September 30, 1871. The claim is that it must be inferred from this entry, either that the citation was issued and served previous to that date, or that the widow waived the issuing and service thereof.

If the propriety and absolute verity of this entry were conceded, there is nothing in it that raises the slightest suspicion that a citation had been issued and served. And it would certainly be violent .to presume, from the fact that the widow came into open court, and, upon being asked, declined to make an election at that time, that she thereby waived the issuing and service of a citation. Certainly nothing short of an express waiver would suffice, and we think the entry does not tend to prove such waiver.

We are, therefore, unanimous in the opinion that Mrs. Bowen is entitled to the provisions made for her in the will of her late husband.

The next question is: being entitled to take under the will of her husband, can the widow also claim under the-ante-nuptial contract? This question must be determined by ascertaining the intention of the testator ? By her election to take under the will, as recorded in the probate-court, she became legally barred of her technical i-ight to-dower and to a distributive share in the personalty, as, in equity, she was already barred by her ante-nuptial contract. But further than this, such election has no bearing upon the question now under consideration, unless it shall appear that her right to both provisions is contrary to the intention of the testator. It was competent for him to make the provisions for her in the will additional to those secured to her in the contract, or it was competent for him to tender the provisions of the will as satisfaction of, or substitute for, those of the contract, and thus put her to an election between them. If the testator intended that she should have both provisions, there is no case for an election ; if he intended by the will to satisfy the contract, her election to take under the will excludes her from all benefit of the contract, for the plain reason that she can not claim under the will and also in contravention of it.

What, then, was the testator’s intention ? Did he intend that her right under the will should be in addition to her right under the contract, or did he intend that the former should be a substitute for and satisfaction of the latter ?

It is contended on behalf of the residuary legatees, that this case is analogous to one of double portions, and that the law will presume that the testator intended by his will to satisfy the widow’s claim under the contract. It is quite true that where a parent or a person in loco parentis, being bound by a promise to make provision for a child, as upon a marriage settlement, gives a legacy to such child, the law presumes that the legacy was intended as an ademption of the promise, because it would be unnatural and unjust to other children to regard it as a double portion. This presumed intention, however, may be repelled by other clauses in the will, or by extrinsic circumstances.

But the case at bar is not in perfect analogy with cases of portions from either a natural or assumed parent. The provisions made for the intended wife were not gratuitous on the part of the testator. He paid and agreed to pay an agreed sum for a valuable consideration. That consideration moved from the promisee. It consisted in her engagement to marry him, and to remit all claims against his estate as widow, in the event that she should survive him. The sum so agreed to be paid, upon the consummation of the marriage, became a debt, for the payment of which the estate of the debtor, the testator, is charged.

I am aware that in the case of Wathen v. Smith, 4 Madd. 325, it was held by Sir John Leach that such a claim was not a debt within the meaning of a testator who directed the payment of all his just debts. But afterward, in the case of Cole v. Willard, 25 Beavan, 568, the authority of Wathen v. Smith was impugned by Romily, M. R., who said: “I do not concur with Sir John Leach in his observation in Wathen v. Smith, that the testator must not be understood to include under the word debt his liability on a bond or covenant made on his marriage, although to be discharged after his decease.”

And in a recent case, Pinchin v. Simms, 30 Beavan, 119, where, in a marriage settlement, the use of £5,000 was secured to the wife, and afterward the husband bequeathed the use of £10,000 to her upon the same conditions, the Master of the Rolls said: “The testator not only bequeathed the £10,000 to different trustees from those of the settlement, but he directs them ‘ to pay and discharge all his just debts’ The £5,000 was one of them. I am clearly of opinion, on the form of this will, that the testator intended his widow to enjoy both provisions, and I wall make a declaration to that effect.”

But it is contended on behalf of the residuary legatees, that the law presumes, where a debtor gives a legacy to his creditor, that a satisfaction of the debt is intended. It is true, that the authorities recognize such a rule, but the courts uniformly have held that slight circumstances will take a case out of the rule. Indeed, the presumption against double portions is only prima facie; but while the courts lean toward this presumption, they are exceedingly jealous of the presumption that a legacy is a satisfaction of a debt. To illustrate : While a legacy of less or uncertain value, will be regarded as a satisfaction of a portion pro tanto, or in full, if it turns out to be sufficient, such circumstance, where the legacy is to a creditor will take the case entirely out of the rule.

The distinction here taken is very clearly stated by the Lord Chancellor Cottenham, in Thynne v. Glengall, 2 House of Lords Cases, 158. “ However similar the two cases may at first sight appear to be, the rules of equity, as applicable to each, are absolutely opposed, the one to the other. Equity leans against legacies being taken in satisfaction of a debt, but- leans in favor of a provision in. a will being in satisfaction of a portion by contract, feeling the great improbability of & parent intending a double portion for one child, to the prejudice generally, as in the present case, of other children. In the case of debt, therefore, small circumstances of difference between the debt and the legacy are held to negative the presumption of satisfaction; whereas, in cases of portions, small circumstances are disregarded. So, in the case of debt, a smaller legacy is not held to be a satisfaction of part of the larger debt; but in case of portions, it may be satisfaction pro tanto. • It has been decided that in the case of a debt, a gift of the whole or part of the residue can not be considered as satisfaction, because, it is said, that the amount being uncertain, it may prove to be less than the debt.”

In support of these general views, we may also cite Chancey’s case, 2 Leading Cases in Equity, and cases therein cited, also, Peachey’s Marriage Settlements, and cases there cited.

How, then, stands the case before us ? The claim of Mrs. Bowen, uuder the contract, was a debt of the testator, though uot payable during his life time. By his will, he directed that “all his just debts of every kind be first paid.” We must assume that this claim of his wife was in the testator’s mind when he executed the will, hence, this direction affords a strong, if not conclusive indication, that he intended she should have both payment of her claim under the settlement and the provision made for her in the will. Some cases, it is true, hold that a mere direction to pay debts will not prevent the legacy satisfying the debt. Edmonds v. Law, 3 Kay & J. 318 ; Rowe v. Rowe, 2 De G. & Sm. 297. All the cases, I believe, agree that a direction to pay debts and legacies will suffice to prevent a satisfaction; while others, perhaps more numerous, hold that a direction to pay debts alone will have that effect. Chancey’s ease, 1 P. Williams, 410; Cole v. Willard, 25 Beavan, 568; 30 Beavan, 119. But this case is stronger, for here the direction is, that all my just debts of every kind, be first paid.

It would indeed be hazardous to say that the testator, when he gave this direction, did not intend to include the debt of his wife, which was, by far, the largest outstanding and undisputed debt against him or his estate.

But we need not turn the case on this point alone, as all the authorities agree, that a simple direction to pay debts is an ingredient to be considered with other circumstances in determining the intention of the testator.

The claim of the wife under the settlement was fixed and known to be $18,000, payable in thirty days after the testator’s decease. The provision for her in the will was the use of certain moneys and property during widowhood, subject to be reduced by taxation and repairs. The former was an absolute property, the latter a temporary use, depending, at the farthest, upon the duration of her life, and subject to be defeated by her marriage.

Under the rules above stated this uncertainty in the value of the provisions in the will would, alone, rebut the presumption that they were intended as a satisfaction of the <lebt. But the real purpose of the testator is apparent on the face of the will, and that was to provide for the current expenses of his wife during widowhood. After giving her the use of his mansion and certain other items of property, he gives her the use and benefit of $50,000, all of which was limited to her widowhood, and then provides r “ If this allowance shall prove insufficient to pay taxes- and repairs of the premises and the support of my wifer then I give to her the use of $10,000 more, to be held during her widowhood as aforesaid.” This declared object of the testator’s bounty appears to us to be inconsistent with an intention to discharge an absolute indebtedness. It looks-more like an inducement to celibacy than the payment of a “'just debt.”

And, again, in the third subdivision of the twelfth item of the will the testator says :

- “ I hereby declare it to be my intent and meaning in item 3-of this my will to give to my said wife, Emma Bowen, the income arising from the said sums of fifty thousand dollars and ten thousand dollars, and to give her the use of the house and land therein mentioned during her widowhood, as therein stated.”

This declaration certainly was not intended to deprive his-wife of the use of the furniture, and books, and cari’iages, •.and horses, and chattels used by the testator on the place,, although these things are not here mentioned.

The third item in the will did not leave in the least obscurity the extent of the interest which the wife might take-under its provisions.- Why, then, this carefully penned declaration, unless it was to declare the provisions made for the wife to be a gift, a bounty from his large estate, and not a payment of a debt previously incurred. Except for the ante-nuptial contract, the wife would have been entitled to-forty thousand dollars, and upwards, on distribution of his-personal estate, and dower in about $40,000 worth of real property — an interest vastly in excess of the amount limited to her under the contract. Now, with full knowledge-of these facts, and in contemplation of approaching death, the testator declares the provisions for his wife in the will to be a gift: “ I hereby declare it to be my true intent aud meaning in item 8 of this my will to give to my said wife,” etc.

The correctness of this construction of the clause under consideration becomes more apparent, when taken in connection with other clauses, which show that the provisions for the widow, under the will, have no correspondence, either in character or amount, to her claim under the contract, hut were intended to meet her current expenses during widowhood; and especially with that clause in which the testator directs that all his “just debts of every kind be first paidthat is, before any bequest should become a charge on his estate; so that, upon the face of the will itself, it indubitably appears that the testator intended his widow to have the benefit of her contract as well as the provisions of his will.

Some other questions on the agreed statement of facts, have been raised by counsel for the residuary legatees, but we find nothing in them to change the result above indicated.

A decree -will, therefore, be entered (all the judges concurring) in favor of defendant, Emma M. Bowen, on hex-claims under the provisions of the will, and also on hex-claim under the ante-nuptial contract.

Judgment accordingly.