
    Griffin et al. v. Driver.
   Wyatt, Justice.

Counsel for the plaintiffs in error have succinctly stated the issues thus: “The case presents these two questions: (a) Can a husband and wife, each of them owning separate estates [in realty], enter into an [oral] agreement whereby they relinquish their right to inherit from each other, upon the consideration that the heirs of each will take their respective estates and that neither of them will execute a will directing the disposition of their estates? (b) And, where the husband, relying upon such agreement, did not make a will and predeceased his wife, and where the wife, after the death of her husband, proclaimed and admitted said agreement and expressed orally a desire and determination to carry out said agreement, should a court of equity enforce such mutual covenant and decree the title to the properties comprising the estate of the husband to be in his heirs [referring to his nieces and nephews] ?” The words enclosed in brackets have been inserted because there was no dispute as to these facts. Held:

Both questions propounded by counsel are answered in the negative. Such a contract is within the statute of frauds; and there is not here revealed such part performance, or other circumstances, as would take the contract without the statute. Code, § 20-401. Compare Hammond v. Hammond, 135 Ga. 768 (70 S. E. 588) ; Jones v. Robinson, 172 Ga. 746 (158 S. E. 752); Moore v. Segars, 192 Ga. 190 (14 S. E. 2d, 752). Moreover, the contract was executory and testamentary in character. Eor these reasons, without reference to others which might be given, the alleged oral contract was unenforceable, and the judgments excepted' to were not erroneous. This case is clearly distinguishable from such cases as Holmes v. Liptrot, 8 Ga. 279; McCord v. McCord, 19 Ga. 602; and Sheppard v. Sheppard, 22 Ga. 426, where the contracts involved were marriage settlements, and the contracts were in writing.

No. 15739.

April 15, 1947.

Judgment affirmed.

All the Justices concur.

B. L. LeSueur and B. L. Maynard, for' plaintiffs in error.

A. H. Gray and Phillip Sheffield, contra.  