
    John G. Lowe and Gates P. Thruston, Executors of Horatio G. Phillips, deceased, v. Catherine P. Phillips, by Andrew Barr Irwin, her Guardian.
    1. Whether an antenuptial contract, making provision for the wife in case of her survivorship, and expressed to be “in bar and full satisfaction of aft such part or share of the personal estate of the” husband “which she may claim, or be entitled unto by law,” will operate as a bar, in equity, to her claim under the statute, to an allowance for a year’s support after the death of her husband, gttere,
    
    2. However this may be, such contract will not so operate, unless it appear that the provisions of the contract in favor of the wife have been fairly performed.
    S In an answer under the code of civil procedure, the allegations that said contract “has been a valid and subsisting contract ever since the date of its execution, and is still a valid and subsisting contract, and binding on the said” widow, is not a sufficient averment'of such performance, and is bad on demurrer.
    Error to the superior court of Montgomery county.
    The defendant in error filed her petition in the superior court of Montgomery county, on the 19th of February, 1861, against John G. Lowe and Gates P. Thruston, executors of Horatio G. Phillips, deceased, stating that Horatio G. Phillips died on the 10th November, 1859, that she is his widow, and as such entitled to a sufficient allowance out of his estate, to ■support her for twelve months from'the time of his death, under the 45th and 46th sections of the administration law. (S. & ■C. Stat. 571^5.) That the appraisers of the estate of deceased, ■duly appointed and qualified, set off to her according to the •requirements of the law, $2500 for said twelve months’ support, and made due return of the same to the probate judge ■of said county, which return was placed on file by said judge; that said executors were duly appointed and- qualified as such more than one year next before the filing of said petition; that said Catherine P. is insane, and Andrew Barr Irwin is her guardian, etc. Also, that on the ,16th of February, 1861, a statement of the amount so set off by said appraisers was made out and presented to said executors, who rejected and refused to pay the same or any part thereof; and she asks .judgment for $2500 and interest, from the 10th November, 1859.
    To this petition the plaintiffs in error answered, setting up a written instrument, which, it is alleged, was entered into and executed by Horatio Gr. and Catherine P. Phillips, on the 12th of December, 1836, previous to, in view and in consideration of their marriage, Catherine P. Phillips (then Catherine P. Irwin) being at that time of sound mind, and in all respects capable of contracting and being contracted with, and which is as follows:
    “ This indenture, made this 12th day of December, 1836, between Horatio C. Phillips of the country of Montgomery, and State of Ohio, of the one part, and Catherine P. Irwin of' said county, of the other part, witnesseth, that whereas, a marriage is agreed upon and shortly to be had and solemnized between the said Horatio Gr. Phillips and Catherine P. Irwin, and upon the treaty of said marriage it was agreed by and between the said Horatio Gr. Phillips and Catherine P. Irwin, that all the ■estate, real, and personal, of the said Catherine P. Irwin, and the rents, issues, and profits thereof, of every kind and description whatsoever, belonging to said Catherine P., or in any -manner hereafter resulting from any property, claim, demand, •aright, title, or interest of hers, the said Catherine P. Irwin, should be conveyed, assigned, settled, and assured to her, the' said Catherine P. Irwin, and together with the proceeds of the fund hereinafter created by the said Horatio Gr. Phillips, should constitute a jointure to the said Catherine P. Irwin, in lieu and full satisfaction of all or any dower, or right, title or claim, which may or might accrue to the said Catherine P. Irwin by virtue of said marriage, in all or any of the estate, real, personal, or mixed, which the said Horatio Gr. Phillips-may have upon the taking place of said marriage, or might subsequently acquire. Nov/this indenture witnesseth: That in pursuance and part performance of said agreement, and for and in consideration of said marriage, and for conveying, settling, and assuring the property and funds hereinafter granted for the uses and purposes hereinafter expressed and declared, and for divers good causes and considerations, the said Horatio Gr. Phillips thereunto moving, he, the said Horatio Gr. Phillips, for himself, his heirs, excutors and administrators doth promise, covenant, and agree with the said Catherine P. Irwin,, by these presents, in manner following, that is to say, in case the said intended marriage shall take effect, and the said Catherine P. Irwin shall happen to survive the said Horatio Gr. Phillips, he, the said Horatio Gr. Phillips, doth hereby charge upon his estate as a debt, and bind Ms heirs, executors-a.nd administrators for the performance of this covenant, that immediately upon the death of the said Horatio Gr. Phillips, his executors, or administrators shall, from the personal estate, and if insufficient, then from the real estate of the said Horatio-Gr., set apart the sum of ten thousand dollars, to be immediately invested in some good and safe stock, by his executors or administrators, and the proceeds thereof, as they accrue and become-payable, to be paid to the said Catherine P. during her life; and for the true and certain creation of this settlement in lieu, of dower, the said Horatio Gr. hereby expressly covenants and pledges Ms estate, personal,* real, and mixed, of which he shall' die seized or possessed, according to the true intent and meaning, object and purpose of this agreement, so that the provision may immediately and certainly take effect, and be chargable up&n his estate immediately upon the death of the said Horatio Gr. Phillips, without any power hereafter possessed by the said Horatio Gr. to defeat the same by any testamentary disposition of his property, or deeds of gift, in his lifetime, whatsoever; and the said Horatio Gr. Phillips doth hereby declare that he holds and will continue to hold, all the property, real, personal, and mixed, of said Catherine P., in trust for her use and separate benefit, and that he will pay over to the said Catherine P. all the rents, issues and profits which may at any time hereafter be received by him from her separate property to her, the said Catherine P., for her sole and separate use, or that she, the said Catherine P., may at any time appoint an agent to receive said rents, issues and profits, or any property which she may now possess, or avails that may accrue therefrom, to receive the same for her; and he, the said Horatio Gr., covenants now and at all times hereafter to discharge the separate property of the said Catherine P. from all claim or right of said marriage, and it is hereby declared to be received in trust for said purposes, subject, if in any manner attempted to be diverted from its trust uses as aforesaid, to be directed and controlled by the direction of a court of chancery to the legitimate intentions and uses of this deed. And the said Catherine P. doth hereby consent and agree to accept and take the provision before made for her, in and by these presents, for her jointure, and in lieu and bar, and full satisfaction of dower which she could or might have had, claimed or been entitled to out of or from any of the lands, tenements, or hereditaments whereof the said Horatio G. Phillips now is, or at any time during the said intended coverture between them, shall be seized of an estate of inheritance or any equitable interest in lands which said Horatio G. may die seized of, being all right of dower which could by any possibility accrue under the statutes of this state or any laws whatsoever, by reason of said coverture, in any property whatsoever, wheresoever, or whensoever accruing to said Horatio G. Phillips, or held by him; and also in bar and full satisfaction of all such part or share of the personal estate of the said Horatio G. Phillips, which she, the said Catherine P. may claim or be entitled unto by law.
    
      “ In testimony whereof, the parties have hereunto set their hands and seals the day and year above written; the said ten thousand dollars, upon the death of Catherine P., falls to the estate of Horatio Gr.” Signed, etc.
    The answer further states that this instrument was signed and sealed in the presence of two witnesses, duly acknowledged before a justice of the peace by both the parties previous to the marriage, and recorded in the office of the recorder of the county, and has been a valid and subsisting contract since the date of its execution,, and claims it still to be binding on Catherine P. Phillips ; also that there are no children of the marriage.
    To this. answer the defendants below interposed a general demurrer, which the court below sustained; and, there being no further pleadings in the case, gave judgment for the plaintiff below. The ruling of the court below, sustaining the demurrer to the answer, is assigned for error.
    
      Odlin Cahill, for plaintiffs in error,
    argued that the answer is sufficient, and that the marriage articles therein set forth are, of themselves, a bar to the widow’s claim to the year’s support set off to her by the appraisers.
    
      King &¡ Thompson, for defendant in error :
    If this were a claim for dower, it seems clear that under the second section of the statute of dower and the authority of Murphy v. Murphy, 12 Ohio St. Rep. 407, the defense would not hold.
    It does not appear that Mrs. Phillips has enjoyed or claimed any benefit whatsoever of the marriage articles, and for aught that the record shows the settlement remains wholly unexecuted. It is not, and will not be, pretended that the executors have set apart and invested the sum of ten thousand dollars in stocks for the support of Mrs. Phillips, as stipulated in these articles. As the case stands it is merely one of an unfulfilled promise against a plain statutory right, backed by the natural and moral obligation to provide for the wife’s main* tenance. To bar dower the statute requires the jointure to be by an “estate conveyed.” To constitute a good equitable bar, by analogy, the trust must have been executed. The defense, therefore, is entirely outside of the equitable circumstances wbicb controlled the court in the cases of Stilley v. Folger, 14 Ohio Rep. 610, and in Murphy v. Murphy; and upon this ground the case might safely be rested.
    These articles do not purport to convey or settle property. They are executory merely. They bind Mr. Phillips, that, immediately upon his death, his executors shall out of his personal estate, or, if that is insufficient, out of his real estate, set apart and invest $10,000 for the benefit of Mrs. Phillips ■during her life, and for the creation of this settlement he charges only the estate of which he may die seized. Being a mere covenant in futuro it constituted no conveyance, or even specific lien upon his estate, but made Mrs. Phillips a creditor only by specialty. This is neither in compliance nor analogy with the statute as to jointure. It is a case of marriage articles, which are differently construed from a settlement, and treated as an executed trust only where nothing further remains to be done.
    
      Odlin Cahill, in reply :
    Defendant in error assumes to treat the articles of marriage settlement, set up by the plaintiff in this case, as merely an unexecuted contract. But to do this, it is necessary to overlook the fact of marriage, 'and every part and covenant con-tained in these articles, excepting only the provision of $10,000 to be raised put of the estate of Mr. Phillips for the benefit of Mrs. Phillips, in case the marriage took place and she survived him. And we submit that even this is not a mere covenant in futuro. It had a present effect upon his estate, real, personal, and mixed. He was without any power to defeat this covenant “ by any testamentary disposition of his property, or deeds of gift in his lifetime.” He might change his estate from personalty to realty, or from realty to personalty, still, in whatever form, it was bound — no voluntary disposition of it would defeat this covenant, unless for the payxnent of just debts; but it does not appear that any disposition of this kind was necessary, or made. But it is said: “ It will not be pretended that the executors have set apart, and invested the sum of ten thousand dollars in stocks for the support of Mrs. Phillips, as stipulated in these articles.” To this we answer, that to pretend that the executors have, or have not, done so, \s simply to pretend to something that the record of this case does not show. But looking to the character of this covenant, and the length of time which it is apparent has elapsed since the death of Mr. Phillips, it may be presumed either that the executors have been wanting in the performance of a clear and well-defined duty, and the defendant somewhat remiss in the assertion of her rights, or that she has got the benefit of the investment provided for, or its equivalent.
    But if the assumption was right that these articles are but an unexecuted contract (which we by no means admit), the authorities already cited abundantly show that such a contract would be enforced. Hobson v. Trevor, 2 P. Wms. 191; Stilley v. Folger et al., 14 Ohio Rep. 610, directly sustain this proposition. Counsel for defendant take a different view from this of the case Stilley v. Folger. But we submit that excepting the marriage, which is admitted in this case, no other part of the contract in that case was executed during the life of the husband; and the report of the case- shows that the widow persistently refused to abide by its terms after the death of the husband.
   Brinkerhoee, J.

If it appeared from the record that the antenuptial contract set up in the answer had been fully and fairly performed on the part of the testator and his executors, we have no doubt that the contracts so performed would constitute a good equitable jointure, and would, in equity, bar the widow from claiming dower in the testator’s real estate, and a distributive share of his personal estate. But whether even then she would be barred from claiming, what she now claims, an allowance under the statute, for a year’s support after her husband’s death, all the members of the court are not entirely •clear. We are all of opinion, however, that the antenuptia’ contract can not operate to bar either dower, a distributive-share of the estate, or a claim for the allowance of a year’s support, unless it appear that the provisions of the contract in-favor of the widow have been fairly performed; and there is-nothing in Stilley v. Folger, 14 Ohio Rep. 610, or Murphy v Murphy, 12 Ohio St. Rep. 407, in conflict with this holding, Now, the answer in this case certainly does not contain any distinct averment, either general or special, of performance by the executors of the main and leading provision of the ante-nuptial contract in favor of the widow, to-wit: the setting apart of the fund of ten thousand dollars for her benefit; and a majority of the court are of opinion that such averment, even under the liberal construction of pleadings prescribed by the code of civil procedure, can not be fairly implied from the allegations that said contract “ has been a valid and subsisting contract ever since the date of its execution, and is still a valid and subsisting contract, and binding on the said plaintiff.” Eor want of such averment, either general, special, or necessarily implied, the majority of the court think the demurrer to the answer was properly sustained. And it is a somewhat significant fact that no attempt to amend the answer in this particular was made in the court below.

Judgment afSrmed.

Peck, O.J., and Ranney and Wilder, JJ., concurred.. Scott, J., dissented as to the third proposition of the syllabus.  