agreed to marry him and live with him as a true and loving wife, and to care for him as long as he should live. After their said marriage it appears that Walker and his wife moved onto the land in controversy, and she then began to persuade and to induce him to convey the same to her, and finally procured him, on the said 28th day of May, 1894, by warranty deed, to convey to her the lands in dispute. The real estate so conveyed to her embraced the 80 acres mentioned in the antenuptial contract, and the 36 acres in addition thereto. It is also alleged that at the time William C. Walker executed this deed to his wife he was old and weak in both body and mind, and that she procured him to execute the same by means of promises, persuasions, and threats. The deed recites that it is executed by the husband to his said wife in consideration of love and affection, and is made in pursuance to the antenuptial contract existing between the parties, and that the purpose of said conveyance was to vest at the time in the wife the real estate thereby conveyed; and the deed further provided that, in consideration of the 36 acres conveyed in addition to the 80 acres, the grantee, or wife, in the event of the death of the grantor, her husband, was not to be entitled to claim or receive any sum or consideration out of the estate of the grantor, as his widow or otherwise. It is further provided therein that, in the event the grantee should not live with the grantor, or should abandon him without just cause, and refuse to take care of him, as stipulated in the antenuptial contract, then the conveyance was to be void and the title to the real estate was to vest in the grantor. It was also provided in the deed that the antenuptial contract was to be continued in force, except as modified by the stipulations in said deed. It is alleged that, a short time after the execution of this deed to his wife, Walker became of unsound mind, and has so continued, and while in said condition, on December 3, 1894, his wife sold the real estate to the defendants Dudding and Moore, and by warranty deed, in which he as her husband joined, conveyed the same to these parties, who have ever since held it, and now claim to be the owners thereof. It is charged that the consideration for the conveyance of the said real estate, paid by Dudding and Moore, was received by the wife, and no part of the same was ever paid to the husband. It appears, however, by the stipulations and terms of the deed of Walker and wife to these defendants, that the land was conveyed to them subject to certain incumbrances therein mentioned, which they agreed to pay and satisfy. It also appears that, after the execution of the deed to Dudding and Moore by Walker and wife, she deported herself in an unchaste manner, and failed to comply with the terms of the antenuptial contract, or with the terms of said deed of conveyance, and finally left and abandoned her said husband. It is also alleged

that the defendants Dudding and Moore, at the time of the conveyance of said real estate to them, knew of the provisions and stipulations contained in both the antenuptial contract and the deed of Walker to his saíd wife, and knew that she had violated the same, and a disaffirmance of the deed by the guardian is alleged, and the prayer is that the antenuptial contract and the deeds in controversy be set aside, and that the title to the lands be quieted in the plaintiff. The facts averred by the second and third paragraphs are in the main similar to those alleged in the first, except in the second it is charged that the plaintiff's ward, at and before the execution of the antenuptial contract, and at the time of his said marriage to the defendant Gussie M. Walker, was a person of unsound mind, and so continued to the commencement of this action. The third paragraph avers a breach of the antenuptial contract on the part of the wife, and also her failure to comply with the provisions and stipulations contained in the deed of conveyance to her, and it is therefore sought to set aside each of these instruments.

Appellees unsuccessfully demurred to each paragraph of this complaint, and thereafter filed a joint answer in four paragraphs, all of which except the fourth were subsequently withdrawn, and the latter is the only one appearing in the record. This paragraph of answer, after admitting the execution of the antenuptial contract and the deeds in controversy, proceeds to allege that while the said William C. and Gussie M. Walker were husband and wife, and while they were living together as such, under and in pursuance of the terms of said antenuptial contract and deed, all of which terms and conditions, it is averred, have been faithfully complied with and performed on the part of the said wife, she and her said husband, William C. Walker, for and in consideration of $4,000, sold the land set out in the complaint to the defendants Dudding and Moore, and by warranty deed, in which her husband joined, conveyed the said realty to these defendants, who took possession thereof, and have ever since held it in fee simple as their own. It is averred that at the time these lands were sold and conveyed to said defendants the antenuptial contract was voluntarily surrendered by the said William C. Walker and wife to the defendants, and delivered up to them for cancellation, and was subsequently destroyed; that after the said conveyance by Walker and wife, at the December term, 1895, of the Hancock circuit court, the said William C. Walker instituted an action in said court against his said wife, Gussie M. Walker, for a divorce; that she appeared to this action by her attorney, and filed her answer in general denial, and that such proceedings were had between the parties in said divorce suit in said court that on the 5th day of March. 1895, the court rendered its decree in favor of the plaintiff.

William C. Walker, granting him a divorce from his said wife; that said decree was absolute, and not appealed from, and still remains in full force and effect; that after the execution of the deeds in dispute, and after said divorce was decreed in favor of said William C. Walker, he was adjudged to be a person of unsound mind, and the plaintiff was appointed as his guardian. It is alleged that, by reason of said divorce decree, the rights of plaintiff's ward in respect to said deeds of conveyance, and the rights and interest of his ward in and to the real estate in controversy, have been adjudicated and forever set at rest, and that the plaintiff is not entitled, by reason of the facts alleged in said answer, to maintain the action, etc.

Plaintiff demurred to this paragraph of the answer for insufficiency of facts, which the court overruled, and thereupon the plaintiff refused to further plead in the action, but elected to stand by his demurrer, and judgment was accordingly rendered in favor of the defendants. After the rendition of this judgment, and before the case was appealed to this court, plaintiff's ward died, and appellants, who are his children and grandchildren by a former marriage, and his only heirs at law, prosecute this appeal against the appellees, and assign that the court erred in overruling the demurrer to the fourth paragraph of the defendants' answer.

The first paragraph of the complaint apparently proceeds upon the theory that the execution of both the antenuptial contract and the deed of conveyance by Walker to his wife were wrongfully procured by the means of her undue influence over her husband. There is no express charge made in this paragraph that plaintiff's ward, at the time he executed either of said instruments, was of unsound mind, but it seems from the averments that his mind became unsound after he conveyed the land to his wife, but before it was sold and conveyed to the defendants Dudding and Moore. The theory of the second paragraph is that Walker, at and prior to the marriage in controversy, was of unsound mind, and continued to be in such mental condition when he executed the antenuptial contract and the deeds involved in this suit. The theory of the third paragraph seems to be that the wife, being bound by the provisions and stipulations contained in the antenuptial contract, and by those embraced in the deed whereby the real estate was conveyed to her by her husband, failed to comply with or carry out these provisions, and thereby the title to the land had been forfeited.

Counsel for appellants assert that the only question for our consideration in this appeal is, does a judgment divorcing a husband and wife settle all questions of property rights between such divorced parties? The answer here involved was directed to the entire complaint, and, upon the assumption that each paragraph thereof was sufficient in stating a

cause of action, it must, in order to withstand the demurrer, be good as an answer to all. Appellants insist that, so far as this pleading attempts to answer the second paragraph of the complaint, it is certainly bad, for the reason that it is alleged therein that William C. Walker, at the time of his marriage to the appellee Gussie M., was a person of unsound mind, and so continued until the commencement of this action; consequently, by reason of section 7290, Burns' Rev. St. 1894 (section 5325, Rev. St. 1881), which declares a marriage to be void when either party thereto at the time thereof is insane, they contend that said marriage was an absolute nullity, and all contracts between the parties thereto, growing out of or connected with it, likewise void. The subjectmatter involved in this action under each paragraph of the complaint is the real estate, the title to which the plaintiff seeks to have quieted as against all of the defendants. The appellees Dudding and Moore claim title to the land through the deed of conveyance executed to them by their co-appellee and her husband, William C. Walker. The title to this land, which Gussie M. Walker claimed to have, before she and her husband conveyed it to her co-appellees, was founded on the deed which her husband made to her in consideration of love and affection and in pursuance of the antenuptial agreement. It is evident that before the plaintiff can prevail in quieting title to the land in this action he would be compelled to avoid the deed of the ward to his said wife. By a long line of decisions, beginning with the case of Fischli v. Fishchli, 1 Blackf. 360, the doctrine has been generally affirmed and settled in this jurisdiction that a decree of divorce by a court having jurisdiction of the subject-matter and the parties is deemed and held to be an adjudication between the divorced parties of all property rights or questions growing out of or connected with the marriage. As a general rule, all such questions, unless excepted therefrom, are considered as put at rest by the judgment, and the parties thereto are precluded thereby until it is set aside in a proper proceeding. Muckenburg v. Holler, 29 Ind. 139; Rose v. Rose, 93 Ind. 179; Behrley v. Behrley, 93 Ind. 255; Hills v. Hills, 94 Ind. 436; Stultz v. Stultz, 107 Ind. 400, 8 N. E. 238; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223; Thompson v. Thompson, 132 Ind. 288, 31 N. E. 529; State v. Parrish, 1 Ind. App. 441, 27 N. E. 652. Such a decree, also, as between the divorced parties, conclusively settles the fact that they were duly married to each other, which, of course, implies the capacity of each to enter into the contract of marriage; or, in other words, the decree necessarily affirms the marriage, but frees the parties from the bonds thereof, and no proceeding can be maintained as long as it stands, to have the marriage, as originally contracted, declared void. The decree also precludes the parties

as to all matters which might have been legitimately proven in support of the charges or defenses in the action. 2 Bish. Mar. & Div. § 766; 5 Am. & Eng. Enc. Law, p. 847; Prescott v. Fisher, 22 Ill. 390; Patton v. Loughridge. 49 Iowa, 218.

In the light of the well-settled principles to which we have referred, we may proceed to determine the sufficiency of the answer. It is apparent from the facts that the right which Mrs. Walker claimed to the property here involved grew out of or was connected with the marriage, the relations of which were terminated by the judgment in the suit instituted by the husband for a divorce. The settlement of the lands by him upon her was made, as we have seen, in pursuance of the antenuptial contract, and for the purpose of vesting the title to the property in her at the time of the conveyance. She was to take it, as the deed stipulated, in lieu of any claim or right by her in or to her husband's estate, as his widow or otherwise. The answer discloses that the husband instituted the action for a divorce in a court having jurisdiction; that the wife appeared to the suit and filed her answer; that such proceedings were had therein as resulted in the court awarding a judgment in favor of the husband divorcing him and his said wife. All this occurred after the conveyances mentioned in the complaint had been made, and before the husband was adjudged to be a person of unsound mind and placed under guardianship. These facts the demurrer conceded to be true, and they fully, in our judgment, when tested by the rule affirmed by the authorities, preclude the plaintiff from successfully maintaining this action. It is evident that, in the face of this decree, neither the divorced husband, nor any one representing him, would be permitted to question or assail the validity of the marriage between him and his divorced wife. Under the circumstances, the decree must stand and be accepted as precluding or estopping either Walker or his guardian from asserting, as against his wife, in a collateral proceeding like this, that he was insane, either at the time of the marriage, or at the time he sued for and obtained the divorce. Plaintiff's ward must, consequently, be considered to have been sane when he instituted his action and secured the divorce, and therefore fully competent to have demanded and procured to be properly adjusted and adjudicated in that suit all matters of property rights arising out of the marriage, and in controversy between him and his said wife. He is presumed to have known that, when the marriage relations between them were dissolved by the divorce, she could no longer live with him as his wife, nor care for him as such, as the complaint charges she agreed to do, in consideration of his settling upon her the property in dispute. Before the action for a divorce was commenced, Mrs.

Walker seems to have asserted an absolute claim of title to the land, and had sold the same to her co-appellees for $4,000, which amount, it is alleged, was received by her; and, for aught that appears, she was still, at the time the divorce was granted, in possession of this amount of money received in consideration of the sale of said real estate, and asserting a claim of title thereto. The fact that she had acquired a part of her husband's estate in advance of the divorce action was a matter which the court in that suit had a right to consider as against any claim for alimony made therein by her, either for the purpose of defeating such claim entirely or to reduce the amount thereof. Burns' Rev. St. 1894, § 1057 (Rev. St. 1881, § 1045; Horner's Rev. St. 1897, § 1045); Morse v. Morse, 25 Ind. 156; Stultz v. Stultz, supra.

The fact that the divorce was granted on the grounds of the misconduct of the wife, and that the property by which she acquired the money held by her at the time of the divorce suit may have been settled upon her by the husband by reason of her wrongful acts in taking advantage of his alleged mental infirmities, can make no material difference in respect to the rule that the divorce decree must, as long as it stands, be held to have adjudicated all property rights arising out of or connected with the marriage, and that it confirmed in the wife the right to the property or the money claimed by her at the time of the granting of the divorce. Behrley v. Behrley, supra, and cases there cited; Glaze v. Bank, 116 Ind. 492, 18 N. E. 450. Where the wife proves recreant to her marriage obligations, and has destroyed the marital union by acts of adultery or other gross misconduct, and her husband is thereby entitled to a decree of divorce, the court granting the same has the discretionary power, and, under proper circumstances warranting the same, will generally exercise it, and allot to the injured husband such a portion of the property or means which he had settled upon the wife as will place him in the position, to some extent at least, which he would have occupied had the union continued. 2 Bish. Mar. & Div. § 509a; Stultz v. Stultz, supra. All such matters, under the firmly-established rule, must be deemed to be by the judgment res adjudicata, and neither the divorced husband, nor those claiming to represent him, will be permitted to bring such property questions again into issue as against the divorced wife or those claiming through her. The rale which precludes the parties in this respect is a salutary one, as it certainly would not be proper after the divorce to leave open and unsettled questions in regard to property which the wife might have received from the husband during the marriage. It must follow, therefore, from what we have said, that the paragraph in controversy was substantially

1. Delivery of a deed being essential to its execution, where the maker dies before it is delivered the deed is void.

2. Where a father made a deed to his son, but did not deliver it, and in his will stated that he had conveyed the land to his son, and directed a deed to be delivered at his death, the word "conveyed" is not conclusive that the deed had become effective by delivery, and the deed and will must be construed together, so that a provision in the latter making a legacy a charge on the land will be enforced.

3. An objection to evidence as incompetent, irrelevant, and immaterial is too general to present any question.

4. Where a father bequeathed to his daughter a legacy, and made it a charge on land, and the daughter died before it was all paid over, a mortgage on the land, in which her mother joins, and foreclosure thereof, will carry the mother's interest in the balance of the legacy, which she had as heir to her daughter, under Rev. St. 1894, § 2650 (Rev. St. 1881, § 2489).

5. Under Rev. St. 1894. § 2650 (Rev. St. 1881, § 2489), giving the husband all his deceased wife's estate provided it does not exceed a certain sum, to entitle the husband to claim the whole the burden is on him to show that the estate was less than the amount specified.

6. Where the wife died possessed of a legacy which was a charge on land, and her mother had disposed of the interest by mortgage which she had therein as her daughter's heir, the husband cannot claim the entire legacy, though, in an action to enforce the lien, the mother disclaimed all interest.

7. Presumptions are in favor of intestacy. Appeal from circuit court, Wabash county; H. B. Shively, Judge.

Action by Thomas W. Moore against the Mortgage Trust Company of Pennsylvania and others. From a judgment for plaintiff, defendant trust company appeals. Reversed. McConnell & McConnell, for appellant. Royce & Cook and Pettit & Stitt, for appellees.

HACKNEY, J. This was a suit by Thomas W. Moore against his co-appellees and the appellant, the Mortgage Trust Company of Pennsylvania, to enforce a lien upon real estate created by the deed and last will of John Makemson. The sufficiency of the complaint is the first question presented. It alleged that John Makemson, on the 3d day of July, 1888, his wife joining, made a deed for 100 acres of land in Kosciusko county, to his son William G. Makemson, said deed containing a condition that the grantee should execute his note to the grantor's wife for a stated sum per annum during her lifetime, if she

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survived the grantor. It is further alleged that the deed so made was never in any manner delivered to said grantee, but was retained by said grantor until his death, in February, 1889, during which time he remained the owner and continued in possession of said land; that on the 12th day of February, 1889, said John Makemson executed his last will, containing, among other provisions, the following: "Item 8. I have conveyed to my son William G., by deed," the land above referred to, "upon certain conditions therein mentioned, which said deed I retain until my death, and at my death to be delivered to him. This is to be in full of his interest in my estate, and he is to pay my daughter, Alice Moore, twenty-two hundred dollars, and I charge said land with the payment of said sum." "Item 10. I will to my daughter, Alice Moore, the sum of twenty-two hundred dollars, which I have herein directed to be paid to her by my son William. "Item 12. I expect to pay my daughter, Alice, on the twenty-two hundred dollars due her from my son William herein provided, the principal of the two notes executed to me by Harvey Oram, bearing date August 11th. 1887, each calling for the sum of $766.66, if I collect the sum during my lifetime; but, in case said notes are not collected during my life, then I bequeath them to my son William at my death, who is to collect said notes, and pay the amount collected on the twenty-two hundred dollars which he is to pay to said Alice, as herein directed. Item 13. The lands described herein as being conveyed to my son William and my son Homer, by deeds, which said deeds I retain during my life, comprise my old home farm. During my lifetime I am to receive from said lands full maintenance and support, each of my said sons contributing an equal amount. Beyond this amount, my said sons are to receive the rents and profits of said lands as their absolute property. To secure my said support and maintenance, I retain said deeds during my lifetime; at my death, said deeds to be delivered to my said sons, each of them being bound, however, to perform the conditions contained in said deeds." After the death of John Makemson, it was alleged said deed to William G. was delivered and recorded, and said will was duly probated; that William G. paid to Alice Moore, on the charge in said will against said land, $1,466.66, but that no other sum was ever paid thereon, although demanded of said William by said Alice; that said William sold and conveyed said lands to Homer E. Makemson, subject to said charge and lien, said Homer agreeing and undertaking to pay the same. It is alleged also that said Alice had died, leaving said Thomas as her only heir, and that no debts remained against her estate; that he, said Thomas, had demanded from William and from Homer the balance of said charge. Sarah A. Makemson, the mother of said

Alice, Homer E. Makemson, and his wife, and the appellant, were made defendants, with a general allegation of an adverse claim, which was junior to the plaintiff's claim to said balance.

The objections to the complaint, as stated by counsel for appellant, are "(1) that it shows on its face that the conveyance was by deed, and not by will; (2) it shows no acceptance of the legacy, as a charge upon the land, by William G., of which the Mortgage Trust Company had notice."

It is argued by appellant's learned counsel that the deed and will, having been executed at different times, should not be construed together, but that the deed should be regarded as having conveyed title to William, and that the testator was powerless, by any act subsequent to the conveyance, to place a charge upon the land. It appears from the allegations of the complaint, and this is admitted by appellant's demurrer, that the deed was only made and acknowledged before the grantor's death, and was in no way delivered to William. Delivery, as had so often been decided, is an essential part of the execution of a deed of conveyance. There having been no delivery, there was, without the provisions of the will as to delivery, no conveyance, and the unexecuted deed, upon the death of the maker, would have been void for the want of delivery. This conclusion, from a consideration of the deed apart from the will, would be most disastrous to any claim upon the land by the appellant, whose sole right depends upon William's ownership and a mortgage by his grantee. The fact that the deed was made prior to the making of the will does not defeat a consideration together of the two instruments. The rule is that where such an intention is manifest from the reference in a deed to a will, or vice versa, the two instruments will be considered and construed together. Copeland v. Summers, 138 Ind. 219, 35 N. E. 514, and 37 N. E. 971; Amos v. Amos, 117 Ind. 19, 19 N. E. 539; Beach. Wills, p. 30; In re Skerrett's Estate, 67 Cal. 585, 8 Pac. 181.

Looking to the two instruments and the facts of withholding possession of the deed and of the land, it is manifest that John Makemson intended to make a disposition to William of the property mentioned, to take effect upon his (said John's) death; that he intended also to provide for his daughter, Alice Moore, $2,200, $1,533 of which was to come from Harvey Oram through William, and the remainder from William directly; and that the whole sum was to be a charge upon the land so provided for William. The withholding of the deed, and the provision of the will for its delivery upon the death of John Makemson, together with the rule that a will is effective only upon the death of the testator, brought the two instruments into effect at the same time; the one giving title, and the other prescribing one of the conditions upon which that title passed, name

ly, of charging the land with the legacy of Alice Moore. The deed would appear, therefore, to be of a testamentary character, and subject to construction in that light. See Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864. The deed, becoming effective by delivery under the will, was necessarily taken upon the terms provided in the will. The fact that the testator employed the word "conveyed" in his references to the deed to William is not conclusive that the deed had become effective by a delivery. The allegation of the complaint that the deed was never delivered, that it remained in the testator's possession, and the fact that the will directed its delivery after the testator's death, very clearly disclose that the word was used in a more limited sense than that contended for by the appellant, and that, as a conveyance, the deed lacked delivery. Vaughan v. Godman, 94 Ind. 191. The complaint, in our opinion, was not subject to demurrer for any of the reasons urged against it.

Upon the motion for a new trial, two questions are urged,-that the court erred in admitting certain evidence of Barker, a witness for the appellee, and in assessing excessive damages.

The objection to the evidence in question, as stated in the trial court, was, "for the reason heretofore given, incompetent, irrelevant, and immaterial." The evidence of the witness contained no objection possibly applicable to the evidence in question, and the reasons stated have been held to be too general and indefinite to present any available question.

The cause for a new trial, that the damages were excessive, presents a more serious question. From the evidence and admissions of the parties, it appeared that John Makemson died near the 26th day of February, 1889, that being the date of the probate of his will; that his wife survived him; that Alice Moore died on the 22d day of September, 1890, without children, her husband and her mother, Sarah A. Makemson, surviving her; that, about two years after John Makemson died, William G. Makemson conveyed the lands mentioned to Homer E. Makemson, who, about one year later, executed to appellant a mortgage of said lands, in which mortgage his wife and his mother, the said Sarah A. Makemson, joined; that said mortgage was regularly foreclosed against the said parties thereto, and appellant is now in possession under a deed upon said foreclosure. The complaint alleged the payment by said William, upon the legacy named, of $1,466.66, sought to recover the balance thereof, and to enforce a lien upon said lands. The court gave judgment, on March 20, 1897, for $1,026; and the contention is that Sarah A. Makemson, as an heir of her daughter, Mrs. Moore, inherited onefourth of whatever balance of said legacy remained unpaid at the death of Mrs. Moore,