affirming the judgment, the supreme court, after quoting the first section of the statute (2 Gavin & H. St. p. 632; Burns' Rev. St. 1894, $1613), said: "By this provision it will be seen that the complaint for such purpose is to be filed with the justice who issued the writ on which the levy is made, or, if made on more than one writ, then with the justice who issued the oldest writ. Perhaps the reason of requiring the complaint to be filed with the justice who issued the writ was that the Kaintiff in the writ, and especially the officer who has it to serve, who is required to be made a party to the proceeding, should not be required to go to a forum where the writ was neither issued nor returnable, and defend such proceeding. There seems to us to be much propriety in confining the jurisdiction in such cases to the court in which the writ issues and is returnable." In Firestone v. Mishler, 18 Ind. 439, the question was whether the party was confined to this statutory proceeding (chapter 5, 2 Rev. St. 1852, p. 493) to try the right of property, or whether he was entitled to resort to the ordinary proceeding in the nature of replevin. The court said: "We are of the opinion that the remedy given in chapter 5 was intended to protect the officer, who acted in good faith, and purchasers at sales under such proceedings; but, so far as the plaintiff in the writ is concerned, it is merely cumulative." Reasoning from these cases and the wording of the statute, it was evidently the intention of the legislature to provide an exclusive remedy for the recovery of property, where the action is against the officer alone. Had the execution plaintiff been made a party defendant with the officer, the case of Firestone v. Mishler, supra, would be in point. But the officer in the case at bar is made sole defendant, and in such case, where he gives the statutory notice, there is no good reason to deny him the protection given by the statute. But did appellant in the notice given comply with the statute? We think he did not. In the complaint the property is described as "one cow, red in color, with brindle stripes and a partly white tail, dehorned, and about three years old." In his first paragraph of answer he alleges that he levied on and took into his possession the cow now in dispute, and then embodies in the answer the notice given appellee; and in this notice the property is described as "one brindle heifer, supposed to be four years old." It does not appear that this was the only animal levied upon, nor that it was the only one owned by the parties. There is no averment that in any way reconciles the variances in the two descriptions. The object of the notice is to call the attention of the party to the specific property levied upon. We see no good reason for requiring less particularity in describing the property in such

notice than is required in describing the property in a complaint seeking the recovery of its possession It cannot be said that the description of the property contained in the

notice would enable an officer to find and take into his possession the property described in the complaint. Smith v. Stanford, 62 Ind. 392. Judgment affirmed.

(57 Ohio St. 27)

SMITH v. SMITH et al. (Supreme Court of Ohio. Oct. 26, 1897.) POSTNUPTIAL AGREEMENT- RELEASE OF INTEREST -DEATH OF HUSBAND RIGHTS OF WIDOW.

A husband and wife made and entered into an agreement of separation, whereby the husband conveyed to the wife certain real estate, paid her $500 in money, and allowed her to re move her own furniture; and both then stipulated that "each party releases any and all claim, right, title, or interest, either vested or contingent, in or to any property, present or future acquired, belonging to the other." The wife survived the husband, who died intestate and without issue, leaving certain real estate, subject to descent as nonancestral property, under the provisions of section 4159, Rev. St. Held, that the effect of the language was to give to the husband of the wife the full dominion of his own property, with power to dispose of it, by will or other wise, without the assent of the wife, during her life, but did not affect her right to inherit from him, as his widow, any property of which he died seised.

(Syllabus by the Court.)

Error to circuit court, Athens county.

Action by Columbus C. Smith and others against Lizzie Smith. Judgment for plaintiffs, and defendant brings error. Reversed.

Wood & Wood and Grosvenor, Jones & Worstell, for plaintiff in error. J. M. McGillivray, Sleeper & Sayre, and L. M. Jewett, for defendants in error.

MINSHALL, J. The brothers and sisters of Charles D. Smith, deceased, brought suit in the common pleas of Athens county against Lizzie Smith, the widow of the deceased, to compel a conveyance to them of the land she inherited from her deceased husband. He died seised of the land, and without issue; and, being nonancestral, it descended to her, as his surviving wife, under the provisions of section 4159, Rev. St. The conveyance is sought by reason of the provisions of an agreement of separation that had been made and entered into between them during their marriage. It is as follows: "Agreement made and entered into this 8th day of July, 1891, by and between Charles D. Smith and his wife, Lizzie Smith, witnesseth, that said parties having concluded that they can and will live together no longer as husband and wife, not being able to dwell together in peace, they do mutually agree to the following division of the property of said parties: Said husband agrees to convey in fee simple to his said wife part of inlot No. 501 in the village of Athens, Ohio; and to also pay said wife the sum of $500.00 cash in hand; to allow her to remove all furniture belonging to her; and each party releases any and all claim, right, title, or interest, either vested or contingent, in or to any property, present or future acquired, be

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longing to the other; and it is further agreed, that, if either should secure a divorce, that neither shall ask or receive any alimony of the other; and each party agrees to execute any deeds or papers necessary to convey a clear title, that the other may ask, to property owned by him or her, free of any further compensation than herein provided, in order that the spirit of this agreement may be carried out; and it is agreed that each may have free and untrammeled use and enjoyment of the property owned by them, respectively, with full power of incumbrance or sale without the other's consent. It is further agreed that, if said wife should agree to sell said real estate, she shall give said C. D. Smith the option to take it at the price she may finally agree to take of any other perWitness our hands the day above written. Charles D. Smith. Mrs. Lizzie Smith." The common pleas sustained a demurrer to the petition, and dismissed the action. On error, the circuit court reversed the judgment, and remanded the cause to the common pleas for further proceedings.

son.

No question is raised as to the validity of the agreement; and it is well settled that such agreements, when reasonable, and fairly made and entered into, will be enforced. Nor is there any question that, but for this agreement, the widow, Lizzie Smith, would be the owner of the property, at law and in equity, under our statute of descents. The contention of the brothers and sisters is that by the language of the agreement, "and each party releases any and all claim of right, title, or interest, either vested or contingent, present or future acquired, belonging to the other," she is precluded now from the right to také or claim the property as the heir of her deceased husband, under the statute, and that she should be required to convey it to them. The only question that need be determined in this case is, as we think, whether by the above language she thereby waived the right to inherit such property as her husband might die seised of. If not, then it is not necessary to determine whether an agreement, for a consideration, to renounce an expectancy of inheritance, is valid or not. It has generally been held not to be the subject of a contract of any kind. Needles v. Needles, 7 Ohio St. 432, and authorities there cited. But, conceding the contrary to be true, what, then, is the proper construction of the language in the agreement just quoted? After carefully considering it in connection with the whole agreement, we are satisfied that it cannot be construed to include the wife's expectancy of inheritance under the statute to such real property as her husband died seised of and intestate. Broad as the language is, it falls short of this construction. It simply includes a "vested or contingent" title or interest in any of the property "belonging to the other"; that is, such an interest as cannot be affected by any disposition made of it, by will or otherwise,

by the one without the consent of the other. But an expectancy of inheritance by one of the property of another is not such an interest. It is regarded in law as a mere possibility, as it may be disposed of by the ancestor either by deed or will, as he may see fit, and is therefore neither a vested nor contingent right of any kind. A contingent right, of whatever nature, in any subject of property, is one so far fixed that it cannot be affected by the disposition of any one, subsequent to its creation, without the consent of the party affected. It may never take effect as a vested estate, for the contingency may never happen on which it is limited; hence it cannot and does not rest upon the uncertainty as to whether one who is the owner of the property in fee simple will exercise the power incident to his ownership, of disposing of his property as he sees fit, or not. Such an Interest is not a contingent one, within the meaning of law, but a mere possibility, and in no way the subject of property.

There is nothing unfair or unreasonable in the construction given this agreement. It gives full effect to what must be supposed to have been the object of both parties to it. They were dealing with respect to each other, and not with respect to others. Each desired to secure the full dominion of the property allotted to himself or herself, and did so by this agreement. Each, by the agreement, acquired the right to dispose of the property given him or her to whoever either might see fit, without the consent of the other. This is seen more clearly from the stipulation that each should have the "free and untrammeled use and enjoyment of the property owned by them, respectively, with full power of incumbrance or sale without the other's consent." They were not then dealing for their heirs, or for any one else, but for themselves. Though, under the terms of the agreement, they lived separately, yet they chose to sustain, and did sustain, to the time of his death, the relation of man and wife. While he might have disposed of his property by will or by deed of conveyance to his brothers and sisters, yet he did not, but left it to descend as at law. How, then, can a court say that this, under the agreement, is contrary to his intention, and that his widow, to whom the property has descended, shall be compelled to convey it to his brothers and sisters? They are simply volunteers, and have no rights with respect to the inheritance other than such as are derived from the law. Permitting the widow to take the inheritance under the statute does not violate a single term of the contract of separation. He enjoyed during his life the full dominion of his property, and that is all he stipulated for. He could, had he desired, in the exercise of this full dominion, have given the property to his brothers and sisters, but he did not. Hence, permitting the property to descend as appointed by the law can be a matter of surprise or injustice

to no one, living or dead. The fact that they lived separately is not a sufficient reason for supposing that he desired that his property should descend to his brothers and sisters, rather than to his wife. It is reasonable to suppose that he knew that he could dispose of his property by will as he saw fit, and that, from making no will, he purposely left it to descend to his wife. But it is not now material what he may have thought about it. The agreement contains no stipulation indicating that either renounced any right of inheritance in the property of the other. All that either renounced was any right or interest, vested or contingent, in the property of the other, that would restrain the latter in exercising full dominion over his or her portion of the property divided.

The case of Miller's Ex'r v. Miller, 16 Ohio St. 528, is relied on in support of the claim of the brothers and sisters. In that case it

was decided that a postnuptial agreement, whereby the wife, for a fair consideration paid by the husband, relinquishes all claim to a distributive share of his personal estate in case she survives him, will be upheld and enforced in equity. The case is distinguishable from the one at bar in two important particulars: (1) The thing to be relinquished is specifically stated. It is, all claim to a distributive share of the husband's personal estate, should she survive him. In the case at bar there is no stipulation to renounce the possibility of heirship, could such a stipulation be made. (2) The interest renounced in that case is not a mere expectancy or possibility. The right of a wife to a distributive portion of her husband's personal estate, in case she survives him, cannot be defeated by the will of her husband. Doyle v. Doyle, 50 Ohio St. 330, 34 N. E. 166. And there are many respectable authorities to the effect that it cannot be given away, in the lifetime of the husband, in fraud of her rights. Cases cited in Doyle v. Doyle, 50 Ohio St. 345, 34 Ν. Ε. 166. It is, then, such an interest of the wife in the personal property of her husband as that he cannot by will deprive her of it without her consent. With respect to such an interest, a contract by the wife to release it to her husband for a fair and reasonable consideration paid her might, with reason, be sustained against her, as was done in the above case. But this, as already pointed out, is not so in regard to the right of inheritance, which depends entirely upon the will of the ancestor. The judgment of the circuit court is reversed, and that of the common pleas affirmed.

(168 111. 224)

HARTFORD DEPOSIT CO. v. PEDERSON. (Supreme Court of Illinois. Nov. 1, 1897.) TAKING CASE FROM JURY.

By subsequently putting in his evidence, defendant waives a motion made by him at the close of plaintiff's evidence to instruct the jury to find for him.

Appeal from appellate court, First district. Action by John Pederson against the Hartford Deposit Company for personal injuries. A judgment for plaintiff was affirmed by the appellate court (67 Ill. App. 142), and defendant appeals. Affirmed.

Burnham & Baldwin, for appellant. J. Warren Pease (W. S. Elliott, Jr., of counsel), for appellee.

CARTER, J. The appellate court has affirmed a judgment for $3,000 in this case against appellant, for a personal injury received by appellee by the falling of an elevator owned and operated by appellant, in which he (appellee) was descending, as a passenger, from an upper story in appellant's building in Chicago. Counsel undertook to preserve the questions of law which have been argued in this court by moving the trial court, at the close of the plaintiff's evidence, to instruct the jury to find for the defendant. This motion was overruled, and the defendant then adduced its evidence, and, at the close of all the evidence (using the language of the bill of exceptions), "renewed the motion to take the case from the jury on the plaintiff's testimony." No instruction directing the jury to find the defendant not guilty was presented or asked. By electing to put in its evidence, the defendant waived its motion, made at the close of the plaintiff's evidence, to instruct the jury to find for it on the case as made by the plaintiff. Railway Co. v. Carey, 115 III. 115, 3 Ν. E. 519. And after all of the evidence it was clearly proper for the court to deny the motion, as made, "to take the case from the jury on the plaintiff's testimony." To raise the question of the sufficiency of all the evidence, as a question of law, to sustain a verdict against the defendant, the defendant should have presented an instruction at the close of the evidence, and asked the court to give it to the jury, directing them to find the defendant not guilty. No such instruction was asked. See Swift v. Fue (in which case an opinion was filed at the present term) 47 N. E. 761. As no question urged here was preserved otherwise than by this motion, the judgment of the appellate court must be affirmed. Judgment affirmed.

IAGO v. IAGO.

(168 111. 339)

(Supreme Court of Illinois. Nov. 1, 1897.) DIVORCE-DECREE AGAINST INSANE DEFENDANTWRIT OF ERROR-BY WHOM PROSECUTED.

1. Where defendant in a divorce suit is insane, and a decree is rendered against him for a cause committed before he became insane, his next friend may prosecute a writ of error to reverse the decree.

2. It is not essential that the person that represented defendant as guardian ad litem on the trial should appear as next friend in the writ of

error.

Appeal from appellate court, First district. This was a bill in chancery filed in the circuit court of Cook county by Selina Iago, de