Rocap v. Blackwell

(after stating the facts as above).

It will be observed that the only averment of fact in the answer is that the decedent left a surviving husband. The other averments are pure propositions of law. Since the executor did not stand on the ruling on the demurrer, we will treat it as we are required to treat all such rulings after trial — in the light of the evidence. The one material fact averred in the answer was adduced in evidence and the executor has had the full benefit of that fact. Therefore, the ruling on the demurrer cannot be reversible error.

The common law imposes upon the husband the…