In speaking of the policy of such contracts the supreme court of Ohio, in Stilley v. Folger, 14 Ohio, 649, say:

"Antenuptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes,-contentions about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled, at this day, that almost any bona fide and reasonable agreement made before marriage, to secure the wife in the enjoyment either of her own separate property or a portion of that of her husband, whether during the coverture or after his death, will be carried into execution in a court of chancery."

It would seem from the authorities that agreements of this kind are generally looked upon by the courts with favor, and are to be liberally interpreted with a view of carrying out the intention of the persons engaging in them. We entertain no doubt, in the present state of our statutes, of the validity of an antenuptial contract entered into in good faith by parties competent to contract, and which, considering the circumstances of the parties at the time of making the same, is reasonable and just in its provisions, and that the rule thus agreed upon will take the place of that prescribed by the statute in the distribution of their property upon the death of either. 1 Bish. Mar. Wom. §§ 24-29, 360, 363, 418, 420, 422, 427, 805; 2 Bish. Mar. Wom. § 334 et seq.; 1 Bish. Mar. & Div. §§ 14, 15; Scrib. Dower, 385; Naill v. Maurer, 25 Md. 532; Jacobs v. Jacobs, 42 Iowa, 600; McGee v. McGee, 91 Ill. 548; Stilley v. Folger, 14 Ohio, 610; Mintier v. Mintier, 23 Ohio St. 307; Andrews v. Andrews, 8 Conn. 79; Findley v. Findley, 11 Grat. 434; Charles v. Charles, 8 Grat. 486; Pierce v. Pierce, 71 N. Y. 154; 17 Cent. Law J. 384, and cases cited. It was also held that the contract was without consideration. Clearly this is not so. In addition to the reciprocal agreements therein, it has for its support the consideration of marriage, which is not only a valuable consideration, but has been held to be "the highest consideration known in law," and is indisputably sufficient to sustain an antenuptial contract. 1 Bish. Mar. Wom. §§ 775, 805, 806; Naill v. Maurer, 25 Md. 532; Johnston v. Dilliard, 1 Bay, 232; 4 Kent, Comm. 464.

Another reason given why the contract should be held invalid was that it was inequitable. Wherein its inequity consists we cannot see. At the time the contract was made Godfrey Hafer was a widower, 56 years of age, with seven children, all of whom had reached majority except the younger one, who was 14 years of age. They, together with his deceased wife, had by their labors accumulated a property of the value of $14,000 and upwards. Virginia Bowser was a maiden of 26 years, and the only property she could bring to the union, aside from her clothing, was two cows and $40 in money. It was his duty, under these circumstances, to make suitable provision for the children by his first wife. By the terms of the contract Virginia was

given the sole control of her own property, together with the increase and profits thereof; and, in case she survived him, she was to share equally in the estate with his children. Considering his age, his expectancy of life, under the ordinary rules of computing its duration, was but short; and the fact is that he died in less than three years after the marriage. At the time of his decease his property had increased to the value of $19,000.

In view of these considerations we are all united in the opinion that adequate provision was made for Virginia, and that the contract, as far as it concerned her, at least, was fair and highly equitable. 1 Bish. Mar. Wom. §§ 422, 423; Naill v. Maurer, supra. Nor do we think that it can be held to be invalid upon the alleged ground of uncertainty. An examination of its provisions convinces us that they could not well be misunderstood. The chief complaint in this regard is that the proportion of his estate which she could take under the agreement is uncertain. It is provided therein that during coverture each shall have the untrammeled control of his or her property, as well as the profit thereon, and if she should outlive him she will receive a child's part; "that is, his estate shall be divided into an equal number of parts equal to the number of children of the said Godfrey Hafer, plus one, and the said Virginia Bowser shall receive one of the said parts, and no more." The rule of division prescribed by the contract is as definite and certain as the rule provided by the legislature for the distribution of the estate of an intestate; and applying the maxim, "That is sufficiently certain which can be made certain," we hold the contract to be unobjectionable by reason of uncertainty. The same strictness is not required in these contracts as in the case of a statutory or legal jointure. See authorities heretofore cited.

It is further claimed that the contract is invalid because "it was not shown that at the time of the signing thereof the financial condition of said Godfrey had been disclosed to or was known by said Virginia, and that it was not understood by said Virginia when she signed it." Transactions of this kind should be characterized by frankness, and the good faith of the parties. Any imposition or designed concealment, by which either of the parties might be misled or defrauded, would operate to defeat the contract. We search the record in vain, however, for any testimony that will sustain the finding that there was any deceit practiced by Godfrey Hafer, or that his conversation and conduct in the transaction was other than open, honest, and fair. She had reached mature years, and the testimony shows her to be fairly intelligent, and capable of understanding the provisions of a contract so plain and intelligible as were those in the one under consideration. She testified that "Godfrey Hafer spoke to her about entering into a written contract of marriage about 15 or 20 minutes before they were married; that they went together to the residence of J. T. Price, the probate judge of Jackson v.6p,no.9-35

county, who had a contract already drawn up. It was read over once and signed by them a few minutes before they were married." No other testimony was given regarding the conduct of Mr. Hafer at the time the contract was executed, except that of the probate judge who drew the contract. He says that before the contract was signed he read it over and explained its provisions to the parties before they signed it; and that some portions of the contract were read over and explained to them more than once. It is true, as she states, that at the time they were married he was indebted to his sister for money which he received from the estate of his brother, George Hafer, and to which the sister was entitled as the heir, and that she did not know of this indebtedness at the time of the marriage. No claim is made by her that he misrepresented his financial condition in any respect, nor that he purposely concealed any fact in relation thereto from her, nor does it appear that any complaint or dissatisfaction was ever expressed by her in this regard after the marriage and before his death. The mere fact that he may not have disclosed his assets and liabilities in detail to her will not, in the absence of anything showing fraud or deceit, invalidate the contract, nor will it raise a presumption of fraudulent concealment; and especially is this so where the terms and provisions of the contract are so manifestly fair and reasonable as in this case.

It is further claimed that the contract ought not to be held valid because the conduct of the parties, after it was executed, showed that they had abandoned and abrogated it. We see nothing in the testimony brought up in the record which warrants this assumption. On the other hand, it appears to us that their conduct was entirely consistent with the theory that the instrument was always regarded by both as a subsisting and valid agreement. Upon the trial, some testimony was offered by Virginia Hafer, in her own behalf, concerning communications which she had personally with Godfrey Hafer in respect to the making of the antenuptial agreement, and which was objected to by the plaintiffs. It clearly came within the prohibition of section 322 of the Code, which provides that "no party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with the deceased person, when the adverse party is *heir at law, where they have acquired title to the cause of action immediately from such deceased person," and therefore, to that extent, her testimony was inadmissible, and should have been excluded.

*

Plaintiffs finally complain of the ruling of the court in finding that the home farm was occupied by the family as a homestead at the time of trial, and its conclusion that it was not subject to partition. finding of fact upon this question is as follows:

The

"The south-east quarter of section 23, tp. 7, R. 15, except the three acres sold therefrom, had for many years before said marriage been the homestead of said Godfrey, after said marriage remained, and at the time of his death

was, the homestead of himself and family, and since his death has been and now is occupied as the family homestead by said Virginia and two of said Godfrey's sons, and the said Emma B. Hafer."

This finding, we think, is sufficiently supported by the testimony, and the court rightly held that partition of the homestead could not be made. The antenuptial contract in question does not in terms refer to the homestead privilege, nor do we think any of the provisions of the contract embrace what was intended by the parties as a release or waiver of such privilege. But, independent of the contract, we remark that the homestead is not made alone for the benefit of the husband and wife, or of either one, but it was also designed as a protection for the family, who may be dependent upon them for maintenance. Considerations of public policy also entered into the enactment, by making such provision as will prevent their helpless children and dependents from becoming a public charity. To this end, and with a view of carrying out these purposes, guards have been thrown around the homestead. Strict constitutional and statutory restrictions have been placed upon its alienation. When it is occupied by the family, it can only be alienated by the joint consent of husband and wife, when that relation exists, and at the death of the owner, if the homestead is still occupied by the widow and children, the law prohibits its distribution under any of the laws of the state, and from the payment of the debts of the intestate, and provides that partition shall not be made until such time as the widow shall again marry, or when all of the children arrive at the age of majority.

In view of these considerations and of the policy of the law, which has been so frequently stated by this court, we think the right of occupancy of the homestead by the family of the intestate is not affected or disturbed by the antenuptial contract. We are not without authority upon this question. The supreme court of Illinois held, in a case analogous to this one, that the policy of the law in relation to the homestead privilege is to preserve the same for the benefit of the family as well as the owner, and could not be abrogated by an antenuptial contract theretofore entered into between the husband and wife. McMahill v. McMahill, 105 Ill. 596; Phelps v. Phelps, 72 Ill. 545; McGee v. McGee, 91 Ill. 548.

It has been contended by plaintiffs that the minor child having appeared in court and asked partition of the homestead, that she too has thereby waived her right to the homestead privilege. But keeping in view the policy of the homestead laws, and the motives of public concern which led to their enactment, we cannot agree to a construction of the homestead law that would permit a homestead, occupied by the widow and minor child, to be defeated, and the fam ily relation broken up, by a wayward child appearing in court, and through, perhaps, a meddlesome friend, asking for a partition of the property. We conclude that so long as the homestead is occupied by the family of the deceased, and until the widow again marries or the

children arrive at the age of majority, no partition of the homestead can be made.

From the views herein expressed it follows that the order and decree of the district court must be reversed.

1. DEBTOR AND CREDITOR-ACCOUNT Rendered.

An account rendered is only prima facie evidence against the party making it.

2. SAME-PAYMENT-EFFECT OF RECEIPT.

A party who has given a receipt, admitting payment in full, has the right always to show, by parol evidence, that it was given by mistake, and that it

was untrue.

3. SAME-MUTUAL ACCOUNTING-ACTION ON ORIGINAL ACCOUNT.

Where there has been no mutual examination of an account consisting of many items, and the creditor notifies the debtor of a round sum being due thereon, which, by the mistake of the creditor, is much smaller than the actual balance due, and the debtor gives his note for such balance, and receives in return a receipt in full, held, that the creditor may bring his action upon the original account, and if the debtor, as a defense, answers, and attempts to prove an account stated and settled, the creditor may show, under a reply containing a general denial, that there has been no adjustment or settlement of the items of the account between him and the debtor; that the receipt was given by him to the debtor through mistake; and that the debtor is only entitled to credit for the amount of the note given by him.

4. SAME-PLEADING ATTACHMENT OR GARNISHMENT AS A DEFENSE.

In pleading a pending attachment or garnishment as a defense, the defendant should show whether the whole or what portion of the debt has been attached or garnished.

Error from McPherson county.

Action by W. W. Marbourg against R. M. Clark and John F. Appleby, as partners, doing business under the firm name and style of R. M. Clark & Co., brought February 15, 1883, in the district court of McPherson county, to recover $1,467.58, together with interest thereon from September 22, 1882. The petition, among other things, alleged that on September 22, 1882, R. M. Clark & Co. were indebted to the Western Hardware Company in the sum of $1,467.58, for merchandise before that time sold to them by said hardware company, and that the plaintiff, Marbourg, was assignee for value of such indebtedness. The separate answer of R. M. Clark was-First, a general denial; second, that after such indebtedness contracted prior to September 1, 1882, the defendant and the hardware company had an accounting and settlement, and there was found to be due from them to the company the sum of $539.22, which sum, on September 22, 1882, was paid, and upon such payment the company gave a receipt in full of all indebtedness up to September 1, 1882. As to the remainder of said indebtedness, the answer alleged that after the date to which such settlement and accounting were made, they purchased