
    CONTRACT BETWEEN HUSBAND AND WIFE AS TO THE DISPOSITION OF PROPERTY AFTER THE DECEASE OF BOTH.
    Common Pleas Court of Union County.
    Martha A. Crary et al v. Robert McCrory, Executor, et al.
    Decided, September, 1909.
    
      Wills—Contract to Make Certain Dispositions of Property by Will-Grounds upon lohich such an Agreement toill be Upheld—Mutual Promises which Constitute a Sufficient Consideration—Performance by One of the Parties Takes the Agreement out of the Statute of Frauds—May be Proved by Patrol or Extrinsic Testimony—Property Devised to Wife under an Agreement as to the Disposition she was to Make of it by Will—Performance Enforced against her Executor.
    
    1. A contract between husband and wife whereby the husband agrees to devise certain real estate to his wife absolutely, in consideration that said wife will execute her last will and testament devising an estate in remainder in said real estate to the brothers and sisters of said husband, is a valid contract. The mutual promises constitute a sufficient consideration to uphold the contract in equity.
    2. Where the husband executes an oral contract by executing his last ' will and testament in conformity thereto and dies, levying said will'in effect, tlie devisees of tlie wife will not be permitted to interpose tlie defense of the statute of frauds. The performance by the husband will, be held to take the case out of the operation of the • statfite in such cases.
    3. Such oral contract, as well as the contents of the lost or destroyed will of the wife executed in conformity thereto, may be proved by competent parol testimony. The scrivener who wrote such will, and who was present when such contract was made, is a competent witness to prove the same.
    
      Hoopes & Robinson, for plaintiffs.
    
      Cameron & Cameron, contra.
   Brodrick, J.

Plaintiffs for their amended petition say, in substance, that defendant, Robert McCrory, is the duly appointed and qualified executor of the last will and testament and estate of Rosetta Holy-cross, deceased, and that the other defendants are the sole devisees and legatees under said last will and testament.

That plaintiffs are the brothers and sisters and sole heirs and legal representatives of deceased brothers and sisters of C. Beamer Holycross, deceased, who was the husband of said Rosetta Holy-cross, deceased.

That said C, Beamer Holycross died on the 30th day of Majq 1896j seized of an estate in fee simple in certain real estate described in said amended petition, and containing sixty-eight acres, more or less, which real estate came to said C. Beamer Holycross by devise from his father, Abraham Holycross, deceased. . .

That on or about the 26th day of May,. 1896, said C. Beamer Holycross made and published his last will and • testament, de ■ vising' said 'real' estate tó his said wife, Rosetta Holycross, for life, with remainder after his death to his brothers and sisters, and their heirs and assigns.

That on the 28th of May, 1896, said C. Beamer Holycross, at the special' instance and request of his said wife, made and entered into a mutual compact and agreement with her, in. substance as. follows: Said C. Beamer Holycross agreed and promised to vest, in form absolute, in said Rosetta Holycross, at his' decease, by will, jp case she should survive him, the legal. title to said land, but. in trust to hold said title until her death, with the right to use said land during her life without being liable to any person for the use thereof during that time,' and at her death, by will to be immediately executed, to devise said land to his brothers and sisters and their heirs and assigns. That said Rosetta Ilolyeross- in consideration thereof agreed and’ promised to hold the legal title to said land, in ease she survived her said husband, but in trust, to use said land until her death,' without being liable to any person for the use thereof, and at her death by will to be immediately executed to devise said land to said brothers and sisters of her said husband and their heirs and assigns.

That said C. Beamer Ilolyeross and said Rosetta Ilolyeross- had no issue living at the death of either of them.

That in pursuance of said agreement said C. Beamer Holy-cross, on the 28th day of May, 1896, made and published his last will and testament devising said real estate in accordance with' the terms of said agreement, and said Rosetta Ilolyeross at the same time and place and in presence of her said husband instructed the-scrivener to prepare her last will and testament in accordance with the terms of said agreement, which was afterward duly made and executed on the 2d day of June, 1896, as of the date of May 28, 1896, by the terms of which she devised said real estate .after her death to the said brothers and sisters of her said husband and to their heirs and assigns. That her said last will and testament was duly deposited in the Probate' Court of Champaign County, Ohio, on the 11th day of June, 1896, but that said Rosetta Ilolyeross, on the 11th day of Decémber, 1900, in violation of said agreement withdrew said will from said probate court, .and if the same is still in existence it is in possession of said defendant's.

That on the 30th day of May, 1896, said C. Beamer Ilolyeross died, leaving his said last will and testament in full force and effect, having fully performed his part of said agreement, which said last will and testament was duly, proved and admitted to probate and record in said prbbate court on June 11, 1896, and in accordance with the terms of said will, said Rosetta Ilolyeross entered into possession of said real estate and continued to use and enjoy the same until the time of her death, which occurred on- or about the 26th day of August, 1908.

That, said Rosetta TIoiyeross made and published her last will and- testament on the 27th day of July, 1908, by the terms of which said, real estate was devised to certain of the defendants in. violation of the terms of her said agreement with her said husband. Said last will and testament was duly proved and admitted to probate and record in the Probate Court of Union County, Ohio, on the 14th day of September, 1908.

Plaintiffs pray that they be adjudged the owners in fee simple of said real estate, and if defendants have the naked legal title to said lands, that they be decreed to execute conveyances of releases therefor to plaintiffs, etc.

For answer to said amended petition, certain of the defendants deny that there is any will of said Rosetta TIoiyeross in existence, except, the last will and testament that has been probfited. Said Rosetta made several wills in her lifetime, but when, she made a new will she destroyed the old one. Said defendants deny the contract set up in said amended petition, and aver that if said agreement had been made it was not in writing and :is void under the statute of frauds, and further that it was void because there was no consideration for the same.

Defendants deny that said Rosetta TIoiyeross held said lands in trust as alleged in said amended petition, and deny that plaintiffs have anjr estate or interest therein. Defendants deny each and every allegation and averment in .said amended petition not admitted in their answer. Defendants further say that it is necessary for said executor to sell said land to pay the debts, funeral expenses and costs of administration of. said Rosetta Ilolyeross.

For reply to said answer, plaintiffs deny that it is necessary for said executor to sell said real estate to pay the debts, etc., of said Rosetta TIoiyeross, averring that said Rosetta TIoiyeross left other property of more than value enough to pay same.

• There are many allegations in all the pleadings that are not necessary to notice as they relate to collaterial matters not pertinent to the real issues involved.

The undisputed evidence shows the following state of facts-.-

On the 26th day of May, 1896, C. Beamer Iiolycross, who was then in his last sickness, made and published his last will and testament in which he devised the real estate in question, which came to him by devise from his deceased father, Abr.aham Holy-cross, to his wife, Rosetta Holyeross, for life, with remainder in fee to his brothers, Pierson F. Iiolycross and Robert C. Holyeross, and his sisters, Lucinda AY. Jenkins, Tabitha Burroughs, Nancy C. Jordan and Martha A. Crary, and their heirs and assigns.

The said Rosetta Iiolycross was dissatisfied with the disposition of said real estate for the reason, as expressed by her, that she did not want the brothers .and sisters of her said husband to dictate to her in the management of said ■ farm, and spent the greater portion of the next day alone with' her husband in his sick room. On the 28th day of May, 1896, the attorney .who had prepared his said will was again called and in his presence a verbal contract or agreement between said C. Beamer Holy-cross and his said wife, Rosetta Holyeross, was made and entered into by and between them, in substance, that by reason of'the dissatisfaction of said wife with the terms of said will the said C. Beamer Holyeross agreed to make and publish a hew will devising said real estate to his said wife absolutely; in consideration whereof said Rosetta Holyeross agreed to make and publish her last will and testament devising said real estate to said brothers and sisters of her said husband.

In pursuance of said contract and to carry the same into effect, said C. Beamer Holyeross then and there made and published his said last will and testament in accordance with the terms of said contract, and placed said will in the hands of said attorney for safe-keeping. It was then ascertained that all the writing paper in the house had been exhausted ih preparing the said will of C. Beamer Iiolycross, and it being after business hours, said attorney was instructed to prepare the last will and testament of said Rosetta Holyeross and return on a future day for her to execute the same.

In pursuance of this agreement the attorney prepared a will for Mrs. Holyeross and took the same to. her home for execution on the 30th day of May, 1896, and on arriving at the house he learned of -the. death .of the husband during the previous night. At thi§ time Rosetta Holycross evinced a willingness- to execute said will, but on the suggestion of the attorney that that day was a legal holiday, and Sunday and the -day of the funeral of the husband intervening, the will was not executed by Rosetta Holycross until on the 2d day of June, 1896, but the date was written, “Signed June. 2d, 1896, as of the date of May 28th, 1896.” This will recited the agreement between the husband and wife and also the fact that it was agreed between said parties that said will was to be left with the Probate Court of Champaign County, Ohio, until the .death of said Rosetta Holy-cross. On the’13th day of June, 3896, at the time of the proving the will of C. Beamer Holycross, this will of Rosetta was left with the Probate Court of Champaign County, Ohio, and there remained for several years, when Rosetta Holycross withdrew the, same from said probate court, remarking to a friend immediately on leaving the probate judge’s office that the Holy-cross’s should never have a cent of this property.

Rosetta Holycross afterward made and published several different wills, the last one being the will under which defendants claim to inherit.

That a contract to make -a last will, and testament in Ohio is no longer a mooted question admits of no doubt, for that question was definitely settled by our Supreme Court in the case of Emery et al v. Darling, 50 Ohio St., 160, the syllabus of which is as follows:

“One sister covenanted in writing with another, that if the latter would reside with her as long as she desired, she would ‘give and bequeath’ to her all the property, real and personal, of which she would die seized. The sister' to, whom the promise was made, accepted it, and fully performed the contract on her part; but her sister died without making a will, or in any way conveying the property to her. Held: That at the death of the sister making the promise, the other became the equitable owner of the property of -which her sister died seized; and, in- specific performance of the contract, is entitled to a conveyance of the legal title from the heirs of her deceased sister.”

Minsha.ll, J., in rendering the opinion of the court, on page 65, says.:

“But it is of the essence of a will that its-dispositions should be in the nature of gifts (Schouler on WiTs, Section 4511. When it is made to carry out or perform some obligation, .made and entered into, by the testator, it is not essentially a will, but in the nature of a contract, and its validity as an instrument will not in such case depend Upon its conformity to the requirements of a will, but to those things which the law deems essential to the making of a valid contract. A promise to make a will in favor of a party, supported by a sufficient consideration and in due form of law, is a valid contract, and, if not made, may. be specifically enforced against the heirs'of the promisor.”

The Supreme Court having thus settled the question that a contract to make a last will and testament is' enforcible, • but. two questions remain-, viz.:

Is the making of a last will and testament by one party in favor of another a sufficient consideration'to support a contract between testator and the b.eneficiary whereby the -beneficiary agrees to execute a will in conformity to said contract? And, lastly, whether the statute -of frauds is a Valid defense to an action to enforce a verbal -contract to devise real estate.

Upon the first question, I think there can.be no doubt that mutual promises constitute a v-alid and binding consideration to support a contract.

In 1 Parsons -on Contracts, page 449, the following rule' is stated by the learned author: “A promise is a good consideration for a promise. And it is so previous to performance and without performance. ’ ’

The vesting of a fee simple estate, free from the interference of remaindermen in Rosetta Holycróss,- instead of an estate for life, as formerly devised to her, would be a' good and valuable consideration. There was therefore a valid consideration moving from C. Beamer ITolycross to his said wife, Rosetta, for her agreement to execute her will in accordance with the terms of her contract and agreement.

Does this contract fall within the provisions of the statute of frauds requiring agreements affecting interests in real estate to be in writing and signed by the parties? It might be a sufficient answer to this question to say that from the undisputed evidence the said Rosetta Holycross did sign a full and compíete memorandum of said agreement when she signed and published her last will and testament, even though that memorandum has been lost or destroyed. But for the purposes of argument, suppose that she had never executed a will as agreed by her said husband, would that prevent a court of equity granting the relief sought? There are two well established principles of law that are always enforced in equity. The first is that a party will never be permitted to profit by his or her own wrong; and the other is that the statute of frauds will not be permitted to be used as a defense when the interposition of that plea would in itself work a fraud upon the rights of the other party.

In the case of Ewing v. Richards, 7 W. L. B., 183, Voorhces, J., in discussing this principle says, on page 185:

“But we are reminded by the demurrer that under the statute of ffapds, contracts in relation to real estate, or any interests therein, and contracts that áre not to be performed within one year from. the making, must be in writing or some memorandum thereof made and signed by the party sought to be charged. If this cause must fail because it is not in writing, we presume that the one or the 'Other of these provisions must furnish authority for its defeat.
“It has long been settled in the courts of equity that a contract is not void because it is not reduced to writing. The statute does not in any way affect the substance of an agreement, but it simply prescribes as a rule that the same shall not be enforced upon oral proof alone. This is the case always, when the contract remains executory on both sides. But when both parties have performed the terms and conditions of the contract, it is as valid and binding as though it had been reduced to writing, and duly signed. And so, likewise, if one party has fully performed his part of the contract, the statute furnishes no shiéld to the other to escape from a performance because it was in parol. To do so would make the law a protection to a fraud, the very thing it was intended to prevent.” See, also. Brown v. Sutton, 129 U. S., 238, and Townsend v. Vanderworker 160 U. S., 171.

In the case at bar C. Beamer Holycross had fully performed his part of said contract, and it would be a very dangerous doctrine for a court -of equity to say that a contract performed by one party might be defeated by the other in order to reap , advantage through his or her own wrong and thus defeat the ends of justice.by the sanction of judicial authority.

It will not do to say that merely because the will of Rosetta Ilolycross is not in existence its contents can not be proven, for that would put it in the power of a party to destroy the evidence against herself, a doctrine wholly repugnant to all principles of erpiity.

In the case of Alberry v. Sessions, 2 N. P., 237, Pugh, J., says, on page 240:

“The same kind 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 ap’pearing in each will be sufficient to show such an agreement, or by extrinsic evidence outside of the wills, disclosing the terms of the contract.”

To the same effect is the decision of Evans, J., in the case of Minor v. Minor, 2 N. P.—N. S., 439, 442.

That where one party has performed his part of an oral agreement, that fact is sufficient to avoid the Operation of the statute of frauds is well settled in this state. See Randall v. Turner, 17 Ohio St., 262; Towsley v. Moore, 30 Ohio St., 184; O’Hara v. O’Hara, 16 C. C. R. 367.

The unreported case of Pancake v. Pancake in the Circuit Court of Madison County, Ohio, is directly in point in the present controversy, -as will be noted from the following statement of facts:

Mary C. Pancake 'intermarried with Andrew D. Pancake in February, 1863. On November 23d, 1877, she inherited certain real estate from her father, and also from her mother, who had died July 31st, 1839.

On the 33th day of June, 3890, said Mai’y C. Pancake entered into a verbal agreement with her said husband, whereby she agreed to vest in her said husband, in form absolute, at her decease, by will, in ease he survived her, the legal title to her said real estate, but upon trust to hold said title until his decease, with the right to use said land during his life, without being liable to any person for the use thereof during that time, and, at his decease, by will to devise said land to the brother of his said wife, John Pancake, and his heirs and assigns.

In pursuance of said agreement, and for the purpose of carry-' ing the same into effect, said Mary C. Pancake and Andrew D. Pancake, on said 13th day of June, 1890, immediately after they had entered into said agreement, and at the same place each duly made, executed .and published a last will and testament.

Said will of Mary C. Pancake contains the following items, to-wit:

‘ ‘ 3 Item. I do hereby devise and give unto my husband Andrew D. Pancake in fee simple, and to his heirs and assigns forever, all my real estate, sitaate in the county of Madison, in the state of Ohio, to-wit: Five hundred and eighty-eight and fifty-three one hundredths acres of land; of which four hundred and fifty acres came to me from my father’s estate, and one •hundred arid thirty-eight acres came to me from my mother’s estate.
“4 Item. I do hereby give, will, bequeath and devise unto Jesse Pancake, the brother of my husband, all of my property, real and personal, which I may inherit, or take by deed of gift, or by will, from my husband Andrew D. Pancake, unto him and his heirs and assigns forever. ’ ’

Said will of Andrew D. Pancake contained the following items, to-wit:

‘ ‘ 3 Item. I do hereby give, bequeath and devise unto my wife Mary C. Pancake all of my personal property wherever it may be at my decease, and all of my real estate, part of which is in Clark county, Ohio, and part in Madison county, Ohio, to her and her heirs and assigns forever.
“4 Item. I do hereby give, will bequeath and devise unto John Pancake, the brother of my wife, all of any property, real and personal, which I may inherit, or take by deed of gift, or by will, from my wife Mary C. Pancake, unto him and to his heirs and assigns forever.”

On the 14th day of January, 1891, said Mary C. Pancake died, leaving her said last will and testament in full force and effect, and leaving her said husband her sole devisee, and her said brother, John Pancake, as her sole surviving heir and legal representative.

On the 26th day of February, 1891, said last will and testament was duly'proved and admitted to probate and record in the Probate Court of Clarke County, Ohio, of which county she .was a resident at the time of her death.

Said Andrew D. Pancake afterward again married and on the 8th da.y of Aug\ist, 1893, without mutilating or destroying his said will of June 3, .1890, made and published his last will and testament in which, after devising all of. his own real estate, except such as came to him by devise from his sa.id wife, Mary Q. Pancake, made the following devise:

“I do not dispose of niy other farm in Madison county, Ohio, leaving it to be distributed according to law, unless I should otherwise direct.” It was conceded that this referred to the farm devised by said Mary C. Pancake to said Andrew D. Pancake.

On the 27th day of August, 1893, said Andrew D. Pancake died, leaving his said wife, Eugenia Pancake, as his sole specific devisee, and his said brother, Jesse Pancake, as his sole heir and legal representative.

On the 20th day of September, 1893, said will of said Andrew I). Pancake dated August 8, 1893, was duly proved and admitted to probate and record in the Probate Court of Franklin County, Ohio, of which county he was a resident at the time of his death.

An issue was joined between the said John Pancake, Jesse Pancake and Eugenia Pancake, respectively, on the above facts, and the same was heard by the Court of Common Pleas of Madison County,. Ohio. On the hearing of said cause the said verbal agreement between said Andrew D. Pancake and Mary C. Pancake was proved by testimony of Col. George W. Wilson, who was the only person present at the time of the making of said contract, outside of the parties to the same. An array of eminent counsel were engaged in the hearing and contested every point in the case, including the statute of frauds, and objections to conversations of said Mary C. Pancake with said Col. Wilson in the absence of her husband, and of the competency of his testimony.

At the October, 1894, term of said court, the issues were found to be with the heirs of said John Pancake, he having died in the meantime; from which finding and order of the court an appeal was taken to the circuit court of said county, and on a final hearing in that court at the April, 1895, term thereof, the issues were again found to be in favor of said heirs of John Pancake, deceased.

This court, therefore, having found that said C. Beamer Holy-cross and his said wife, Rosetta Holyeross, had made the agreement and contract substantially as set out by plaintiffs in their amended petition, and that said C. Beamer Holycross had fully performed his part of said agreement prior to his death, and by so doing had wholly put it in the power of said Rosetta Holy-cross to carry into effect his wishes and intentions in the matter, and that without said agreement said C. Beamer Holycross would only have given to his said wife a life estate in said real estate, it is the judgment and order of the court that the said defendant, Robert McCrory, as executor of said will and testament of said Rosetta Holycross, under the power of sale granted .to him in said will will convey the same to said plaintiffs, or in default thereof for thirty days, that the decree of this court operate as such conveyance.

Judgment against said defendant as such executor for costs. Exceptions noted for.the defendants. Notice of appeal by defendants. Bond fixed at $200. 
      
       Counsel in this case were: Marcus G. Evan's and Thos. E. Powell for Jesse' Pancake; George Lincoln and R. A. Harrison for John Pancake, and H. J. Booth and Ira H. Crum, for Eugenia Pancake.
     