
    John Garver, Executor of John Miller, deceased, v. Sarah Miller.
    1. A parol post-nuptial agreement between husband and wife, made in view of a voluntary separation, and fully executed on the part of the husband,, whereby, for a consideration which, in the light of all the circumstances of' the parties at the time the contract is made, is fair, reasonable, and just, the wife relinquishes all claim to a distributive share of the husband’s personal estate in case she survives him, will be upheld and enforced in equity; and the intervention between them of a trustee, is unnecessary.
    2. But it is an essential element of the foregoing proposition, that the terms-of the contract shall be fair, reasonable, and just to the wife, in view of all the circumstances of the parties at the time when it was made; and such, contract can be made available, in pleading, as a full defense to an action, by the wife for a distributive share of her deceased husband’s estate, only when accompanied by such averments as show it to have been fair, reasonable, and just to her.
    3. Where, by the terms of a post-nuptial contract between husband and wife,. made in contemplation of a separation of the parties, the husband agreed to pay the wife a gross sum of money in hand, in consideration of which-she agreed to relinquish all claim to a distributive share of his personal estate in case she survived him; and the stipulated sum was paid and received accordingly, and the parties ever afterward lived separate from each other; and, after the death of the husband, the wife brings an action for the recovery of a distributive share of his personal estate, under the statute: Held, that the facts above stated constitute, prima facie, a good defense, inequity, to the action as to the amount so received by the wife, under the-contract.
    *Error to the court of common pleas of Wayne county. Reserved in the district court.
    December 11,1862, Sarah Miller filed her petition in the court of common pleas of Wayne county, against John Garver, as executor of John Miller, deceased, stating in substance that John Miller-died September 17, 1860, leaving her his widow; that the nuncupative will of the deceased was duly proved and admitted to record,, in the probate court of Wayne county, September 21, 1860, and that Garver, the executor, duly qualified and entered upon the duties of the trust; that on February 6,1861, he filed his account, in the probate court for final settlement of the estate; and that in pursuance of due notice, the court audited the account and found in the executor’s hands, after paying all debts, costs, and charges of administration, $5,816.32, which the court ordered him to distribute according to law; that the testator died, leaving two children, Martin and Mary, his heirs at law; that plaintiff is entitled, as widow, to a distributive share of the $5,816.32, to wit: one-half of the first four hundred, and one-third of the residue, being in all $2,005.44, and -that that sum is justly due her from the executor, with interest from March 12, 1861; that on June 14, 1862, she presented her account for her share to the executor, for his acceptance and payment, but that he refused to accept or pay it. Wherefore she asks judgment against him for the amount claimed, and interest.
    The executor demurred to the petition on the grounds: 1. That it does not state facts sufficient to constitute a cause of action; and, 2. That it shows the plaintiff has no right to recover.
    The demurrer was overruled, and the executor answered':
    1. He denies that the probate court, at any time, on settlement of his account, found any money in his hands belonging to the estate after payment of debts, etc., or ordered him to distribute any; but states that his account, filed in court, showed that, as executor, he had paid out, in the settlement of the estate, all the assets he received; and that in pursuance of due notice, the court, on the hearing of the account, found it correct; that he had received assets to •the amount of *$6,253.31, and that he was entitled to credits to the same amount, and that he had fully paid out and legally accounted for all the assets that came to his hands as executor; that no exceptions were taken to the account, and no appeal taken by the plaintiff to the finding and order of the court, and that the judgment and finding of the probate court remains in full force.
    2. That on or about November 18, 1856, said John Miller and the plaintiff, then his wife, having agreed to separate, the two made a verbal agreement—he to pay her $700; she, in consideration thereof, to release and relinquish all claim she then had or might have to his money or personal estate, and all claims as a distributee of his estate, in case she survived him. That in pursuance of this agreement, Miller paid his wife the $700, and she received it as her full share of his real and personal estate.
    The executor also claims in his answer that the $700, with interest from November 18,1856, should be deducted from any sum the plaintiff might be entitled to receive from him.
    The plaintiff demurred to the second defense set up in the answer, on the ground that it does not state facts sufficient to constitute a defense to the action.
    The court sustained this demurrer.
    The issues of fact made by the petition and first defense were submitted to and tried by the court, which found for the plaintiff, and that there was due her $2,208.81, including $203.50 interest, from 14th June, 1862, for which judgment was entered.
    To reverse this judgment the executor filed his petition in error in the district court, claiming that the common pleas erred:
    1. In overruling his demurrer to the plaintiff’s petition.
    2. In sustaining the plaintiff’s demurrer to the second defense set up in his answer.
    3. In not deducting from the amount found for the plaintiff the $700 paid her by her husband, November 18,1856.
    The district court reserved the case for decision in this court.
    
      * Jeffries & Welker, for plaintiff in error:
    1. The first and main question presented is, will a post-nuptial agreement between the testator and the plaintiff below, by which she agreed, for a consideration paid by him, be enforced against her after his death? We contend that such agreement is binding upon her, and that if she adopts it and accepts the consideration, she is precluded from obtaining dower, or any portion of the testator’s estate, as a distributee. Eillinger’s Case, 35 Penn. St. 357; Gar-lick v. Strong, 3 Paige Ch. 452; Thomas v. Brown et al., 10 Ohio St. 247.
    Such contracts may be made between husband and wife, and enforced in equity, without the intervention of a trustee. Reeves’ Horn. Bel. 97, 98, note 1; 2 Story’s Eq., sec. 1380; 10 Ohio St. 250, 373; 2 lb. 518.
    It is determined in Huber v. Huber’s Adm’r, 10 Ohio St. 371, that the wife may enforce such a contract against the husband or his legal representatives. We contend that the contract may be enforced against her—that it is binding on both parties—and that the wife, where she has received the benefit of the contract, will be estopped from claiming any further interest in the husband’s property or estate. Dillinger’s Case, 35 Penn. St. 357; see, also, Wilson v. Wilson, 1 House of Lords Cases, 538; Lucas v. Lucas, 1 Atk. 270; 3 Johns. Ch. 537-543, 77; 7 Ib. 57; 3 Paige Ch. 440.
    2. The agreement between the testator and plaintiff below was, in effect, a bargain and sale by her to him of her whole interest in his estate, present and contingent, for a consideration paid. In equity it should be enforced against her. Houghton v. Houghton, 14 Ind 506; 8 Blackf. 284; 9 Ind. 347; 4 Ib. 535; 2 Johns. Ch. 537; 2 Bright’s Husband and Wife, 90; 17 Johns. 548.
    3. The $700, the consideration for her agreement, and received by the wife, should, with the interest, be deducted out of any sum she may receive out of the estate.
    4. The remedy of the plaintiff below, if any she had, was in the probate court. She has no right to attack the judgment of that court in this collateral way.
    *5. Her petition is defective in not showing by what right she seeks to obtain distribution—whether under the will or the statute. It is defective also in not showing some disability on her part to assert her claim, ff he had any, in the probate court.
    
      B. Dean, for defendant in error:
    The testator died leaving children. Consequently, the widow is entitled only to her distributive share of the personal estate. Unless she elects to take under the will, she takes under the statute.
    It is a general rule of the common law,, that the wife can make no legal contract with her husband during coverture, that shall be binding upon her. 1 Bla. Com. 442; Finch v. Finch, 10 Ohio St. 501; 2 Story’s Eq. Jurisp., sec. 1367; 1 Ib., sec. 243.
    Courts of equity exercise only equitable jurisdiction in regard to' married women, for their protection, support, and relief. The question in this case is a purely legal question. The widow seeks her legal rights under the statute.
   Brinkerhorr, J.

The controlling questions in this case, and the only ones we shall refer to, are those arising from the order of the court below sustaining the demurrer to the answer number two. The first question is as to the sufficiency of that answer as a complete defense to the action, in toto, of the plaintiff below.

That a parol post-nuptial agreement made between husband and wife, in view of a voluntary separation, and fully executed on the part of the husband, whereby, for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable, and just, the wife relinquishes all claim to a distributive share of the husband’s personal estate, in case she survive him, will bo upheld and enforced in equity, and that the intervention of a trustee is unnecessary, are propositions now too firmly settled to require the citation of many authorities for their support. I therefore content myself with citing the cases of Thomas v. Brown, 10 Ohio St. 247; Houghton v. Houghton, 14 Ind. *505; Wilson v. Wilson, 1 House of Lords Cases, 538; and Dillinger’s Appeal, 35 Penn. St. 357.

But, in respect to contracts of this, and of a kindred kind, equity is properly somewhat jealous of the influence which it is commonly in the power of the husband to exert in their procurement, however that influence may arise—whether from her lingering fondness and habitual deference, the restraint of his presence, his superior knowledge of business and values, or his powers of coercion and annoyance. Hence it is an essential element of the proposition above stated, that the terms of the contract in favor of the wife shall be fair, reasonable, and just to her, in view of all the circumstances of the c.ase and of the parties at the time the contract is made. If the contract be relied on in pleading, either as a cause of action or as matter in defense, the pleading must contain averments which show the contract to have been fair, reasonable, and just to her under the then existing circumstances. If it become a question of fact, the proof must lead the mind of the chancellor satisfactorily to the same conclusion. It is not sufficient, either as a matter of pleading or of proof, to set up the naked contract and its execution by the husband. In addition to this, facts must be averred, or proved, or both, as the exigencies of the case may require, showing that the terms of the contract in favor of the wife were fair, reasonable, and equitable, under the circumstances of the parties at the time it was made. And this doctrine runs through all the cases bearing on the subject.

Tried by these principles, the second defense set up in the defendant’s answer is defective, as a complete bar to the plaintiff’s action, as set forth in her petition; for it sets up the naked contract between the husband and wife, and its execution on the part of the husband, unaccompanied by averments showing the fairness, reasonableness, and equitable character of its provisions in her favor, in view of all the circumstances of the case. In so far then as the said second defense was set up as a complete bar to the plaintiff's petition, we are of the opinion that there was no error in the court below in sustaining the demurrer thereto.

But the further question remains, whether the facts stated *in the same answer do not constitute a good defense to a part of the cause of action claimed by the plaintiff below in her petition ? That answer not only alleges the making of the post-nuptial contract between the husband and the wife, but avers the 'full execution of it on the part of the husband, in the payment by him, and the acceptance by her, under the contract, of the sum of seven hundred dollars. We are of opinion that these facts, prima facie, constitute a good equitable defense to the action of the plaintiff below, as to that sum, and that the court below ought to have so held. For error in failing to do so, the judgment will be reversed; and the cause will be remanded to- the court of common pleas, where counsel for the defendant below will have an apportunity to consider the question whether they are able so to amend their pleadings, and to adduce such proofs as will render the alleged post-nuptial agreement a full bar to the action.

Judgment accordingly.

Scott, C. J., and Day, White, and Welch, JJ., concurred.  