
    Dean, Executor of Richards, v. Richards.
    
      Wednesday, May 29.
    Suit by a surviving wife against the executor of her deceased husband, to recover $800 of the assets in his hands. The executor answered: 1. by a general denial; 2. setting up an ante-nuptial agreement. A demurrer was sustained to each paragraph of the answer; and the defendant failing to answer further, the Court gave judgment for plaintiff, for want of an answer. . •
    
      Held, that it was error to sustain a demurrer to the general denial.
    
      Held, also, that a judgment, without proof, fot want of an answer was also erroneous.
    APPEAL from the Grant Common Pleas.
   Per Curiam.

Suit by Sarah Richards against the executor of her deceased husband, to recover $300 of the assets in his hands. The defendant answered in two paragraphs. One 'was the general denial. The other set np in bar the following ante-nuptial agreement:

“Memorandum of an agreement made and entered into by and between Henry Richards, sen., and Sarah Allen, both of the county of Grant, Indiana, Witnesseth: That in consideration hereafter mentioned, to wit: the parties propose to unite in matrimony, and both owning property, it is therefore . agreed by the said parties, that, in consideration thereof, the said Henry Richards, sen., is to have the right to dispose of • his lands by will or otherwise, agreeably to his own views; provided if he dies first, the said Sa/rah is to be furnished with a house and home, and support on the home farm during her lifetime; she is also to be entitled to such property as may be left of what she brings to him; also a share of what ' may be made and laid in for the support of the family, she taking care of his children while they are willing to stay with her. It is. further agreed, that so much money as the said Henry Richards, sen., may have over and above what may be needed .for the support of the family, the said Henry Richards, sen., is to dispose of by will or otherwise, as to him shall seem right; whereof the said Sarah claims no part, and hereby relinquishes all right thereto; that is, what is now accumulated. And the said Sarah is to take care of said children, or cause them to be taken care of or provided for, if the said Henry shall die before they are able to take care of themselves; that is, the young children, or those by Mary-The said Sarah is to pay the taxes and keep up the farm after bis death, if lie dies first.”

This agreement was signed, witnessed, and acknowledged before a justice of the peace.

A demurrer was filed to the answer, which, says the record, was sustained as 'to each paragraph of the answer, and the defendant excepted. Whereupon, says the record, the defendant failing to answer further, the Court, for want of an answer, entered judgment for the plaintiff for f300, &c. We see no reason why the general denial was not a good answer, and it was clearly erroneous to sustain a demurrer to it. The judgment without proof was, of course, erroneous. As to the second paragraph of the answer, see Houghton v. Houghton, 14 Ind. 505.

I. Van Devanter and Jas. F. McDowell, for the appellant.

John Brownlee, for the appellee. 5 rr

The judgment is reversed, with costs. Cause remanded, &c., with instructions to overrule the demurrer.  