v. Steele et al., 18 Ohio St. 38; Morgan et al. v. Spangler, 14 Id. 102; Beardsley v. Fort, 14 Id. 416; McAfferty et al. v. Conover's Lessee, 7 Id. 105; Lessee of Buckingham v. Hanna, 2 Id. 551; Vance v. Vance, 8 Shepley (Maine) 364. Applying these principles of law to the present case, there is no foundation upon which an estoppel in pais can rest, for the very elements necessary are wanting in this case. Can fraud or bad faith be imputed to the defendant in error, because she permitted herself to be a party to the antenuptial agreement and signed the same? What legal right or interest of William H. Grogan, who sets up this defence, in his father's estate, has been interfered with or prejudiced, which existed at the period when this antenuptial agreement was made? The making of this antenuptial agreement was, and the attempt to enforce it is, an endeavor to take from the widow a right given to her by law, and which, from time immemorial, has been jealously guarded and protected by the courts, for the purpose only of enlarging the interest of the heir. Is this what the law means by the rights of others being prejudiced? Certainly not; especially when, as in 4 Ohio 495, the court say: "Estoppels are not favored by courts of law, and less by courts of chancery."

The opinion of the court was delivered by

JOHNSON, J.-By the record, it appears that the case came on for hearing at the general term, on the petition, amended answer, and demurrer thereto, upon the questions presented by the pleadings.

The court, without directly passing on the demurrer, virtually does so by special findings of the truth of the facts stated in the petition; also that the defendant is in possession of the premises described in the petition, claiming the estate of the plaintiff therein, and that the plaintiff had notified him of her claim, and requested that her dower be assigned, which he refused to do. It is then adjudged that she be endowed of one equal third part of the lands in the petition described. The court then proceeds to find that as, by certain proceedings in the Probate Court of said county, the plaintiff's dower interest in said premises "has been set off in dollars and cents, all proceedings therefore to set off the same by metes and bounds, by virtue of any order of this court, is waived by the parties thereto." Upon this finding, it is ordered "that the plaintiff receive her dower in money, as set off to her in said

Probate Court, and that defendant pay the costs," &c. No mention is made of the demurrer; but the findings and judgment that she was entitled to dower was, in effect, sustaining it. It is a little difficult to understand these two orders-the one that she is entitled to dower in one equal third part of the premises, and the other that the land had been sold in another court, and dower in money already assigned; in which last proceeding she had waived her right to the relief sought in this action. Assuming, however, that the record is defective upon this point, we proceed to an examination of the errors complained of.

The errors assigned are:

1. The court erred in holding that the amended answer did not constitute a statutory jointure in bar.

2. In holding said answer did not amount to an equitable bar. 3. In holding that the petitioner was not estopped by reason of the facts stated in said answer.

4. In holding that the burden of proof was on the defendant to show that said antenuptial contract was reasonable.

As to this last assignment, it is sufficient to say that there is nothing of record to show that the court did so hold. The demurrer having been virtually sustained, though not formally, there remained no defence to the action. The defendant being a minor, it became the duty of the court to be satisfied of the truth of the petition, before rendering a judgment. The record shows the facts specially found, but no such holding as is complained of appears.

The remaining errors assigned make it necessary to give a full synopsis of the defence. The amended answer, with the antenuptial contract which it sets up, states that previous to February 23d 1867, there was a treaty between the plaintiff and said William Grogan, concerning marriage between them; that she was of full age, and under no restraint; that he was many years her senior, and of feeble health, and was the owner of the premises described in the petition, and a small amount of personalty; that he had one child, the defendant, by a former wife; and that the terms of an adjustment of the rights of the plaintiff, in the event of their marriage and her survivorship, were freely discussed and agreed on.

He agreed to enter into said marriage only on the condition that she would bind herself to accept, in the event of his deathan event then anticipated as not, likely, very remote-a certain

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interest in his estate, in full satisfaction of her claims as his widow; and on the 23d of February 1867, she freely and voluntarily entered into a written agreement to that effect, which was duly executed and acknowledged by both parties, whereby it was stipulated that said Grogan, in consideration of said marriage about to take place with plaintiff, whose name was then Emma Mitchell, did thereby grant, bargain, sell and convey to her, during her natural life, real estate in Cincinnati, described as follows:

"All that lot of land, situate in said city, and being the one undivided one-third part of the southwest part of lot No. ten [10], in Ewing's subdivision, fronting ten [10] feet on Fifth street, and running ack on Kilgour street, on lines parallel with said street last named, one hundred and sixteen feet, nine inches [1163 feet], said lot hereby conveyed being part of ground purchased by said city for the purpose of extending Kilgour street." It is averred that this land so conveyed was in full satisfaction of her dower. The parties were married February 24th 1867, and he died in August thereafter.

The answer concludes: "Wherefore, he denies that said petitioner is entitled to dower, as claimed in the petition, and asserts that adequate provision was made for her by the aforesaid jointure, and prays that her claim may be restricted to the premises set forth in the contract."

The prayer that her claim, which was to have dower in this ten feet as well as in the twenty-five feet in lot No. 9 adjoining, be restricted to the premises just described-that is, to the ten feetwould seem to imply that the pleader understood this contract as embracing a life-estate in the undivided one-third of ten feet front by one hundred and sixteen feet deep, though, in argument, it is insisted that this description embraced all of the ten feet front, and not an undivided one-third. We do not so understand it. The will of deceased is printed as part of the record. There is no statement of facts showing the extent and value of William Grogan's property at the date of the marriage, nor the value of the part conveyed, nor of that remaining, to enable the court to say whether it was adequate or not. There is no averment that the deed was ever delivered to her, or that she, either during or after coverture, ever had possession; on the contrary, the court finds, as one of the reasons doubtless for sustaining the demurrer, that the premises

are in the possession of the defendant; and still more, that, by proceedings in the Probate Court, instituted, as they must have been, by the defendants, or one of them, the property had been sold and converted into money. We mention this as accounting for the absence of such important averments in this defence. Grogan died in August 1867, and this petition was filed in 1870, and the presumption is that, during the interval, this real estate, now set up as a jointure, was held and controlled by the heir, and, for aught that appears, she declined to accept the provision thus made. Was she bound to accept it? The petitioner declined to take under the will. The will refers to this antenuptial contract, and declares that "she shall not have any dower in my real estate described in the contract; *** that is to say, that said Emma Grogan shall have no dower in the real estate mentioned and described in said contract."

Let us inquire:

1. Was this antenuptial contract a legal bar to an action for dower? If it was, then this action was improperly brought. The Statute of Ohio, on this subject, reads:

"Sect. 2. If any estate shall be conveyed to a woman as jointure, in lieu of her dower, to take effect immediately after the death of her husband, and to continue during her life, such conveyance shall bar her right of dower.

"Sect. 4. That when any conveyance, intended to be in lieu of dower, shall, through any defect, fail to be a legal bar thereto, and the widow, availing herself of such defects, shall demand her dower, the estate and interest conveyed to such widow with intention to bar her dower, shall thereupon cease and determine."

What, then, is a jointure, under this statute? It is a word having a fixed legal signification, long prior to the enactment of our dower act. The section quoted is, in fact, but the adoption of a similar provision, found in stat. 27 Henry VIII, c. 1056, which enacted that where lands are settled to the use of the wife, "that then, in every such case, every woman having such jointure *** shall not have title to any dower in the residue." This Act of Parliament was enacted to prevent a woman from having both dower and jointure. Before its passage, accepting a jointure was not a bar to her action for dower.

Under this statute, the word jointure had as definite and welldefined legal meaning as any other legal term. It was an estate

made to the wife in satisfaction of dower. Sir EDWARD COKE says, "that to the making of a perfect jointure, within that statute, six things are to be observed:

"1. It is to take effect for her life, in possession or profit, presently after the death of her husband.

"2. It must be for her own life, or for a greater estate.

"3. It must be made to herself, and to no other for her.

"4. It must be made in satisfaction of her whole dower, and not of part of her dower.

"5. It must be expressed or averred to be in satisfaction of her dower.

*

"6. It may be made either before or after marriage."

He adds: "So as to comprehend all in a few words: a jointure ** is a competent livelihood of freehold for the wife, of lands or tenements, to take effect presently in possession or profit after decease of the husband; now, as dower ad ostium ecclesiæ, or ex assensu patris, is better for the wife, because, in respect to certainty, she may enter, than dower at common law where she is driven to her action, and therefore Britton calleth dower ad ostium ecclesiæ and ex assensu patris, establishment of dower by the husband, and assignment of dower after his decease (for nothing that is uncertain is established); so jointure (that hath the force of a bar or dower by said Act of 27 Henry VIII.), is, as hath been said, more secure and safe for the wife than dower ad ostium ecclesiæ or ex assensu patris, for besides it is as certain as these others she may enter into it, after the death of her husband, and not be driven to her action:" Coke on Lit., sect. 41, note 8.

A jointure with all these qualities is binding on the widow, and a complete bar to her claim: 1 Cruise Digest, title 9, chap. 1, sect. 19. But it had to be as certain as dower ad ostium ecclesiæ or ex assensu patris, and to be better than these; and, as Coke says, more secure and safe for the wife than either of these, or than dower at common law. It had to be established, so the wife could enter, after the death of her husband, and not be driven to her action. It is said jointure is to be as certain as dower ad ostium ecclesiæ or ex assensu patris. How certain were they? Coke says: "Dowment ad ostium ecclesia is where a man of full age, seised in fee-simple, who shall be married to a woman, and when he cometh to the church-door to be married, then after affiance and troth plighted between them, he endoweth the woman of his whole