
    Ortman v. Ortman et al.
    
      (Decided April 17, 1933.)
    
      Mr. W. 8. Paxson, for plaintiff in error.
    
      Mr. E. L. Bush, for defendants in error.
   Hornbeck, P. J.

This is a proceeding in error seeking to reverse a judgment of the trial court granted after sustaining a demurrer to a reply, plaintiff below-desiring to plead no further. The parties appear here in the same relation as in the trial court. The action of the plaintiff, Alva C. Ortman, was upon a verbal contract between him and Albert P. Ortman,- made in May, 1927, by the terms of which contract it is alleged that Albert P. Ortman agreed to will all property which he should own when he died to plaintiff in consideration of plaintiff moving into the home of Ortman, in Fayette county, and living with him and caring for him during his lifetime. It is averred that plaintiff entered upon his duties under this agreement, and that in August, 1927,' Ortman, pursuant to his agreement, executed his will giving all his property, after the payment of his just debts, to the plaintiff; that thereafter, in October, 1928, while plaintiff was at the home of Ortman performing his duties, and still ready and willing to perform Ms duties, he and his family were ordered from the home of Ortman, and he was thus prevented from complying with the terms of his contract; that in December, 1929, Ortman again entered into the contract under the same conditions and provisions as before averred, and when plaintiff and his family moved to Ortman’s farm, he (Ortman) delivered the will of August 4,1927, to plaintiff, and this will was in the possession of plaintiff at the time of Ortman’s death. But in June, 1930, Ortman had executed a will giving all of his property to the defendant Edward M. Ortman, subject only to payment of his debts, funeral expenses, and a $500 legacy to defendant Jane Ortman. In October, 1930, Ortman, after informing plaintiff that he had made another will, ordered plaintiff and his family from his house, and, although plaintiff was ready and willing to perform his duties, he was thus prevented by the acts and conduct of Ortman. It is pleaded that Ortman died October 28, 1931, leaving his will of June 11, 1930, which was admitted to probate. Plaintiff’s claim was presented to the executor and denied. The petition prayed that defendants be declared trustees for plaintiff for the property of Ortman, deceased, subject to payment of his debts, and that the defendants be ordered to convey to the plaintiff all of the property of Ortman; and, in the alternative, if the court should find that plaintiff is not entitled to specific performance of the contract, that damages be awarded plaintiff in the sum of $9,337.07.

Defendant filed an answer consisting of two defenses, the first defense admitting the execution by Ortman of the will of August 4, 1927, admitting that plaintiff, in June, 1927, moved to the home of Ortman, that he lived with Ortman the first time until October, 1928, and that in December, 1929, the plaintiff again moved into the home of Ortman. The first defense further admits the execution of the will of June 11, 1930; admits that plaintiff moved from the home of Ortman in October, 1930; admits the death of Ortman as alleged; admits the presentation and rejection of plaintiff’s claim, and, otherwise, generally denies the averments of the petition.

The second defense of the answer avers that practically all of the estate of Ortman at the time of the contract alleged, and at his death, consisted of real estate; that the contract pleaded in the petition involved disposition of the title to real estate and therefore was void under the statute of frauds (Section 8621, General Code). A demurrer was interposed to the second defense, which was overruled.

Plaintiff, by way of reply, admitted the allegations of the second defense, but denied the legal effect to be as averred; alleged that, pursuant to the agreement of May, 1927, plaintiff moved into the residence of Ortman and took possession of the real estate upon which said residence was located; that he made repairs and improvements on said real estate; that the will of Ortman of August 4, 1927, was in performance of his agreement with plaintiff, and that plaintiff performed all his duties under the agreement until he was prevented by the acts and conduct of Ortman from further performance; that by reason thereof the agreement was taken out of the statute of frauds. To this reply a demurrer was filed on two grounds: (1) Said plaintiff’s reply is a departure from the grounds stated in the petition. (2) Said reply, on its face, is insufficient in law.

This demurrer was sustained, and plaintiff not desiring to plead further final judgment was entered against him. From this judgment error is prosecuted.

The petition in error is grounded upon two propositions :

First: “Said court erred in sustaining demurrer to plaintiff’s reply to the second defense of the answer to said Edward M. Ortman, individually and as the executor of the estate of Albert P. Ortman, deceased.”

Second: “Said judgment was given to the said Edward M. Ortman, when it ought to have been given to said Alva 0. Ortman. ’ ’

The reply avers that the plaintiff was put into possession of the premises by Albert P. Ortman, deceased, in his lifetime, and avers that plaintiff made valuable improvements upon the real estate upon which he moved.

Giving to the contract which is averred in the petition all the legal intendment to which it is entitled, we are unable to find that the qualified possession which plaintiff held of the premises owned by Albert P. Ortman could be construed to be absolute possession, such as is required to take the contract out of the statute of frauds. The effect of the contract, if fully met by Ortman, deceased, would have put plaintiff in possession only at the death of the testator. It was not contemplated that he should have possession under the contract until that time. Therefore, the possession which he pleads in the reply could not, under the contract pleaded, be referable thereto. Likewise, if he made improvements on the farm they could not have been made upon any theory of ownership in the land when made, nor upon any obligation enjoined upon the plaintiff in the performance of his part of the contract with Ortman, later deceased.

On the second proposition of the petition in error, we are convinced that in no view of the pleadings could judgment have been entered for the plaintiff. Conceding to the plaintiff all to which he is entitled on the petition, in view of the fact that an answer containing a general denial had been filed, it would have been incumbent upon him to have made proof of his contract by clear and convincing evidence, and of compliance therewith or, in lieu thereof, willingness and readiness to comply, which was prevented by the wrongful acts of Albert P. Ortman in Ms lifetime. A judgment could not have been rendered for Mm without such proof.

We are therefore satisfied that the court did not err in sustaining the demurrer to the reply, nor did he err in failing to enter judgment for the plaintiff.

Did the court err in entering judgment for the defendant?

The facts pleaded in this case are different in one particular from any case which has come to our attention as trial judges or through any reported case in Ohio.

This is not the usual case wherein the promisee claims that for services to be rendered the promisor was to make a will devising his real estate to the promisee, and alleges a failure of the promisor to perform, together with a plea of performance on the part of the promisee by rendering services according to the terms of the contract. Here the promisor prepared and executed a will, embodying the terms and provisions, and devising the land, as the plaintiff avers the promisor was bound to do, and this executed will was delivered to the plaintiff and remained in his possession until the death of the promisor and is still in his possession.

If the contract had been executed on both sides, then, of course, the statute of frauds would not avail to defeat the plaintiff’s claim. The Ortman will, unlike the improperly executed will in Ralston v. McBurney, 6 Ohio App., 303, and unlike the will in Bolman v. Overall, Exr., 80 Ala., 451, 2 So., 624, 60 Am. Rep., 107, made no reference whatever to the purpose actuating the devise to plaintiff, and, therefore, it is claimed that there is. no memorandum of the agreement in writing. The Ortman will of August 4, 1927, does not meet the requirements of a “memorandum in writing, ”v as set out in Kling, Admr., v. Bordner, 65 Ohio St., 86, 61 N. E., 148, wherein it is held: “To make a valid contract to leave an estate including real property to another by will, it is not only necessary that the contract, or a memorandum thereof, shall be in writing, signed for the purpose of giving it authenticity as an agreement, but the terms of the agreement must be expressed with reasonable certainty in the writing, and it must contain a sufficiently definite identification of the property to be so disposed of.”

The Supreme Court has followed and approved this proposition of the syllabus of Kling, Admr., v. Bordner, supra, in a comparatively recent opinion in Newbold v. Michael, 110 Ohio St., 588, 144 N. E., 715. The court in the syllabus of that case announced in the following language the rule controlling a decree of specific performance in cases like the instant case: “Equity will not enforce by specific performance a verbal contract to leave an estate, including real and personal property, to another by will, in consideration of personal services, even though the same have been performed, and said contract and performance are shown by clear and convincing evidence, unless the character of the services were not intended to be and are not susceptible of being measured by pecuniary standard, or unless the contract has been so far executed that a refusal would operate as a fraud upon the party who has performed and would result in a denial of just compensation.”

Considering these two adjudications in their application to the facts pleaded in the instant case, it would'seem that plaintiff was not entitled to specific performance, and that the demurrer to that portion of the petition seeking such relief was properly sustained. The services performed by the plaintiff for Ortman in his lifetime were clearly susceptible of being measured by a pecuniary standard, and to deny such relief would not result in a denial of just compensation to him. It appears that the real estate was appraised at $9,337.07. Plaintiff in all operated under the contract approximately two years. The character of the services to be performed was not unusual, and a fair appraisal of their value could be reached by a jury in an action on quantum meruit.

The will, which in this case, must constitute the memorandum in writing of the parol agreement between the parties, differs from the memorandum in any case cited, in that there is no reference whatever by the testator to the reason which caused him to devise his real estate to plaintiff. Thus, there is no term of the agreement expressed in the writing upon which plaintiff must rely to take the parol agreement out of the statute of frauds.

The case of Alexander v. Cron (No. 276, Miami county), unreported, decided January 6, 1932, is cited. In that case the possession of Ida Alexander was clearly exclusive and referable only to complete relinquishment by Mr. Cron of any possession because of ownership of the premises.

Our attention also is directed to the opinion of Judge Pugh, in Albery v. Sessions, 3 O. D. (N. P.), 330, 2 N. P., 237, wherein it is stated:

“The existence and terms of the contract must be established by the most clear and satisfactory evidence.

“The same kinds of evidence by which other contracts are proved may be used. They may be proved by matter apparent on the surface of the wills, manifesting an agreement, as by express statements therein that the wills are made pursuant to an agreement, or by a mutuality of testamentary intention appearing in each will sufficient to show such an agreement, or by extrinsic evidence outside of the wills, disclosing the terms of the contract.”

Judge Pugh was an eminent jurist and we are disposed to give full weight to his pronouncements. However, it is obvious that that portion of the quotation italicized is in direct conflict with the syllabus in Kling, Admr., v. Bordner, supra, heretofore quoted. See like wise Bolman v. Overall, Exr., supra, which supports the contention of the plaintiff in the instant case.

In our independent investigation we have found the case of Naylor v. Shelton, 102 Ark., 30, 143 S. W., 117, Ann. Cas., 1914A, 394, wherein specific performance was decreed upon a parol contract for services which had been performed by the promisee, and wherein the promisor in his lifetime had delivered a will, which was lost, containing no language referable to the contract. The first proposition of the syllabus is as follows: “Where a person for a valuable consideration agreed to will a certain tract of land to his daughter, and executed and delivered a will accordingly, the contract is taken without the statute of frauds.” This is a well-reasoned case, and were it not for the decisions in Ohio, which to us seem to be contrary to its terms, we would follow it. The performance of personal services under an oral promise to reward therefor by will is not in Ohio such performance of the contract as to take the contract out of the statute of frauds. Crabill v. Marsh, 38 Ohio St., 331.

Other cases outside Ohio supporting the contention of plaintiff are Nelson v. Schoonover, 89 Kan., 388, 131 P., 147; Torgerson v. Hauge, 34 N. D., 646, 159 F. W., 6, 3 A. L. R., 164, and note at page 172; Naylor v. Shelton, 102 Ark., 30, 143 S. W., 117, Ann. Cas., 1914A, 394.

We are of opinion that the court was right in sustaining the demurrer, and in determining that the plaintiff had no cause of action for specific performance, or for damages for breach of the oral agreement to make a will.

The judgment of the trial court will, therefore, be affirmed.

Judgment affirmed.

Kunkle and Barnes, JJ., concur.  