
    Harris v. Wilson.
    In an action upon a promissory note, signed by a married woman together with her husband, brought for the purpose of charging her separate estate, the petition averred among other things that she “ then and thereby intended and agreed that her said separate property should be liable for the money named in said promissory note, and that she promised then and there that her said separate property was and should be held bound and liable for the payment thereof.”
    As her first defense in her answer, she denied “that by the execution of the note she intended or agreed that her separate property should be liable for the money named in the note, if the same Was not or should not be paid by her husband,” and denied “that she promised then and there, or at all, that her separate property was, or should he held liable for the payment of the note.”
    
      Held: That a demurrer to this defense was properly overruled.
    Eeeoe to the District Court of Licking County.
    This action was brought for the purpose of charging the separate estate of Mary D. Wilson with the payment of a note signed by her husband and herself. The petition alleged as facts that Mary D. Wilson was seized and possessed of real and personal property as a separate estate, and that jointly with her husband she executed and delivered the promissory note, a copy of which is set out. These averments were followed by allegations that “ she then and thereby intended and agreed that her said separate property should be liable for the money named in said promissory note, and that she promised, then and there, that her said separate property was and should be held bound and liable for the payment thereof.”
    To this petition Mary D. Wilson filed an answer containing two defenses. As her first defense she denied “that by the execution of the note she intended or agreed that her separate property should be liable for the money named in her note' if the same was not or should not be paid by her husband, and that she promised, then and there, or at all, that her separate property was, or should be, held liable for the payment of the note.”
    To this defense the plaintiff demurred, and the only complaint of error in this case is in the action of the court of common pleas in not sustaining this demurrer, and of the district court in affirming the judgment of the court of common pleas.
    
      L. B. Harris, for plaintiff in error.
    
      H. B. Sprague, for defendant in error.
   Nash, J.

The only question in this case is, “ was the demurrer properly overruled?” It has been determined by the supreme court that a married woman, who is possessed of a separate estate and signs a promissory note as surety for her husband, is presumed without further proof to intend thereby to charge such estate. This presumption may be overcome by proof of facts or circumstances surrounding the execution and delivery of the note which show that such was not her intention. Avery v. Van Sickle, 35 Ohio St., 270; Williams v. Urmston, Id., 296; Hershizer, Adams & Co. v. Florence, 39 Id., —. It is settled bjr what kind of evidencé this presumption may be overcome, but it remains a question of fact to be determined by the court in each case. We are of the opinion that this issue may be made by an averment in the petition that by the signing of the note the married woman intended thereby to charge her separate estate and a denial of the allegation in the answer. Such an answer is good upon demurrer, but a court upon a motion, for that purpose made, might properly require the answer to be made more definite and certain by setting forth the facts surrounding the transaction which show that she did not intend to charge her separate estate.

The petition in this case not only contained the averment of which we have spoken, but also the additional allegation that Mrs. Wilson promised, then and there, that her said separate property was and should be bound and held for the payment of the note. Both allegations were denied in the first defense.

We do not commend the pleading in this case as perfect, but simply say that the issue was so made that there was not error in the overruling of the demurrer.

JucLgment affirmed.  