
    GALL v. GALL.
    
      N. Y. Supreme Court, General Term, First Department ;
    
    
      June, 1892.
    1. Specific performance ; agreement to will property.\ An agreement to leave property by will will not be enforced in equity where the evidence leaves it uncertain what the precise agreement is.
    
    2. The same.] The complaint in an action for the specific performance of an agreement to leave property by will to the plaintiff, against the decedent’s widow, children and representatives, alleged that the decedent, while unmarried, had agreed, after reserving the right to give legacies to certain persons, to leave to plaintiff the remainder of his estate both real and personal in consideration of the plaintiff’s assuming decedent’s name, and giving up his business in San Francisco and coming to New York to enter decedent’s business and to live wi'th and care for him until his death.— Held, that such contract could not be specifically enforced because (1) it did not relate to specific property or value; (2) there was no binding mutuality, in that plaintiff could have left decedent at any time without violating his agreement; (3) it was not to be assumed that the agreement contemplated a restriction upon decedent’s right to marry, nor upon his right to provide for children of such marriage ; as such an agreement would be contrary to public policy and void.
    
    3. The samei\ Whether a contract will be enforced whereby a party deprives himself of all power to bequeath or devise by will the property of which he may be the owner at death, except in cases of adoption where the contract is made for the benefit of an infant and not to the exclusion of children, Query.
    
    Appeal by plaintiff from a judgment of the special term of the Supreme Court dismissing the complaint without costs.
    
      The action was brought by Charles F. Gall against Amelia Gall and others to compel defendants to transfer and convey to plaintiff property belonging to J oseph Gall, deceased, at the time of his death, to which plaintiff claimed to be entitled by virtue of a contract made by him with Joseph Gall in his lifetime.
    The allegations of the complaint in reference to the contract were as follows :
    1st. That' on or about the 15th day of November, 1882, at the City of New York, the plaintiff, who was a nephew of one Joseph Gall, now deceased, and as such was known by the name of Charles Funkenstein, entered into an agreement with Joseph Gall, his uncle, whereby he agreed to give up and abandon a valuable business and agency which he then had in the City of San Francisco and State of California and which for a long time had yielded him a very considerable income, and to take up his residence with the said Joseph Gall in the City of New York and live with him until his decease and care for him in the meantime, if at any time he should require care from sickness, and to enter into his business and to adopt his name; and whereby the said J oseph Gall for his part in consideration of the fact that he was childless and in consideration of the plaintiff doing the things so agreed upon by him as above set forth agreed to make his last will and testament, wherein and whereby, after certain legacies 'to be made to the defendants, Helene Friedlander, Rosie Morris, Julius Gall, Edward Funkenstein, Rebecca Funkenstein and Sarah Funkenstein, he undertook and promised to leave the remainder of his estate both real and personal to the plaintiff. 2nd. That the plaintiff fully performed each and every part of his said agreement with the said Joseph Gall, and did so fully perform it in the lifetime of said deceased; and that he did immediately after entering into such agreement with the said Joseph Gall give up and abandon his business and agency in the City of San Francisco aforesaid, and did take up his residence with said Joseph Gall, and did enter into his business and adopt his name.
    '3rd. That thereafter, on the third day of .April, 1883, and at the city of New York, and for the purpose of carrying out his said agreement with plaintiff, the said Joseph Gall made and executed his last will and testament.”
    The complaint set forth the will, which in substance conformed to the alleged agreement, and also a codicil thereto which violated the agreement by giving legacies to persons not specified. It also appeared that subsequent to the making of the agreement, Joseph Gall intermarried with the defendant Amelia Gall, and had issue, the defendants, Betsy H. Gall and Caroline Gall, thereby causing a revocation of the will and codicil.
    Plaintiff demanded relief that the children of Joseph Gall make and deliver to the plaintiff a deed of their right, title and interest in the real property described in the complaint, and that the widow execute to him a release of her dower therein; and that the personal property belonging to the estate of Joseph Gall, after deducting the legacies given pursuant to the agreement, be delivered to him.
    
      The Special Term dismissed the complaint on the ground that no definite contract was proved.
    
      Abram Kling, for appellant.
    
      A. Simis,Jr., for respondents.
    
      B. F. Blair, for infant defendants.
    
      
       See note at the end of this case, and note on specific performance of indefinite contracts, in 25 Abb. N. C. 321.
    
    
      
       Compare next case, and note thereto.
    
   Barrett, J.

It is undoubtedly the settled' law of this State that “ where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity in a case, free from all objections on account of the adequacy of the consideration or other circumstances rendering the claim inequitable, will compel a specific performance ” (Shakespeare v. Markham, 10 Hun, 322; affirmed, 72 N. Y. 406 ; Parsell, v. Stryker, 41 N. Y. 480). Such a contract, however, especially when it is attempted to be established by parol, is regarded with suspicion, and not sustained except upon the strongest evidence that it was founded upon a valuable consideration and deliberately entered into by the decedent (Waterman on Specific Performance, § 41).

The cases in which performance of such contracts have been enforced in this State were principally .cases where specific property was agreed to be devised or bequeathed upon an adequate consideration.

Such was the case of Parsell v. Stryker (above cited),, where, indeed, the contract-' sought to be enforced was in writing and entirely specific.

The lands which were the subject of the agreement under consideration in Mutual Life Insurance Co. v. Holloday (13 Abb. N. C. 16), consisted of a definite tract called “ Ophir Farm.” This was also the case in Sherman v. Scott (opinion by Rumsey, J., 13 Abb. N. C. 20, note; affi’d, 27 Hun, 149). In Matthews v. Matthews (62 Hun, 111), the agreement was a certain specific part of the decedent’s premises and chattels.

We have, however, found no case in this State where an agreement to leave the whole c ’ one’s estate, real and personal, to a particular person, has been enforced. On the contrary, there are cases where specific performance of such a contract has been refused. It was refused in Lusk v. Sherman, referred to in the same case (25 Barb. 435), when, after the dismissal of the bill, an action was brought for money compensation. The refusal was based upon tlm uncertainty which necessarily existed with regard to the subject matter. This was recognized in Shakespeare v. Markham (supra), where Talcott, J., observed that: ‘ ‘ There was no restraint by the supposed contract upon the testator’s power to dispose of the same, or any part thereof, during his life, and the amount which he should have at his death was, therefore, wholly uncertain. The contract, therefore, by reason of its uncertainty, was one which a court of equity would not be under the necessity of compelling performance of.”

The case of Lisk v. Sherman was approved of in the case last cited, both at General Term and in the court of appeals. Talcott, J., at General Term, said it was quite similar to the case then under consideration, as the agreement “ was that the plaintiff was to live with and take care of the testatrix as long as the latter lived, and at her death was to have all the property which the testatrix should leave. ”

It is vitally important that the statute of wills should be maintained in its integrity; and the courts should not, by lessening or weakening the well defined prerequisites to specific performance, furnish a loop-hole for the evasion of its provisions. So important are these provisions, with .respect to testamentary disposition, that it has been doubted whether in any case, especially when the contract is sought to be established by parol testimony, so patent a means for their evasion as bills for specific performance should have been allowed (Shakespeare v. Markham, supra). It is certain, however, that in this class of cases the ordinary rules which govern in actions to compel the specific performance of contracts, and which furnish reasonable safeguards against fraud, should be rigidly applied. These rules require that the contract be certain and definite in all its parts; that it be mutual and-founded upon an adequate consideration, and that it be established by the clearest and most convincing evidence. Even then, when the contract limits a man’s right to dispose of his property by will, it is regarded with suspicion, and enforced only when it is apparent that the hand of equity is required to prevent a fraud upon the promisee. There is another rule which should be strictly adhered to in this class of cases, and that is that the remedy is a matter of judicial discretion, and that relief should be withheld where a decree for specific performance would work injustice to innocent third persons, or where it would be contrary to public policy (Armstrong v. Armstrong, 1 N. Y. St. Rep. 531, and cases there cited).

Applying these principles to the case under consideration, we think the judgment of the Special Term dismissing the complaint was correct. In the first place, the contract was not established with reasonable certainty. It was not made with parents for the benefit of an infant, but directly with an adult. The proof rests entirely upon the declarations of the decedent. Some of these declarations were, it is true, made in the presence of the plaintiff, but they were not in the nature of a present bargain.

Many of these declarations were merely as to the decedent’s intention, while others were as to what had been done. He told some witnesses that he had made a will in the plaintiff’s favor, and that this was done in consideration of the plaintiff coming to the decedent’s home and living with him, and giving up his business and home in San Francisco. To another witness, he gave as a reason for making his will in plaintiff’s favor, that he wanted to perpetuate his name and also his business. To still another he said he had made his will and had made Charlie (the plaintiff) his heir, as Charlie had given up his business interests in San Francisco, and had taken his name to perpetuate his name and business. When the plaintiff, at decedent’s request, had his name changed to Gall by a judicial order, the decedent told the attorney who attended to the matter that “ Charlie was to be his heir and assume his place in the business at his death.” To his niece, Rebecca Funkenstein, he said that he had made an agreement with Charlie that if Charlie would leave his home and remain-with him he would give him everything he possessed for changing his name, he would leave him his business, his property and everything he possessed, excepting some few legacies that he left to her sister and brother and the three cousins in New Zealand.” The plaintiff’s mother testified to the same effect.

It is quite uncertain from this testimony what precise ■agreement, if any, was ever • made between the plaintiff and the decedent. If there was any actual agreement between them, it is impossible to say whether the consideration therefor was the change of name, or the care which was to be given to the decedent, or the sacrifice of the California business.

Then, too, if an actual agreement on the decedent’s part is to be inferred from these declarations, such agreement was uncertain. There was a reservation of the right to make some legacies, and the complaint charges an undertaking “ to leave the remainder of his estate, both real and personal,” to the plaintiff. No specific property, it will be observed> but whatever he might happen to have at the time of his death, without even a general statement as to its extent, character or value. How is it possible, under well settled rules, to enforce such an agreement were it conclusively established ? And, even if the consideration were clear, how can its adequacy be determined when .the property to be ultimately realized therefor was necessarily unknown at the time the agreement was made.

Further than this, there was no binding mutuality. The plaintiff could have left the decedent at any time without violating any engagement on his part. The observations made in the House of Lords, of England, in Maddison v. Alderson (8 L. R. App. Cas. 467) are pertinent on this branch of the case. There the decedent induced a woman to serve him as housekeeper, without wages, for many years, and to give up other prospects of establishment in life, by a promise to make a will leaving her a life estate in land. He, in fact, signed the will, but unfortunately for the woman it was not duly attested. It was held that there was no valid or enforceable contract. One of the law Lords said that: “ The case thus presented was manifestly one of conduct on the appellant, (affecting her arrangements in life and pecuniary interests) induced by promises of her master to leave her a life estate in the Moulton Manor farm by will, rather than one of definite coiitract for mutual considerations, made between herself and him at any particular time. There was certainly no contract on her part which she would have broken by voluntarily leaving his service at anytime during his life, and I see no evidence of any agreement by her to serve without, or to release her claim for, wages. If there was a contract on his part, it was conditional upon and in consideration of a series of acts to be done by her, which she was at liberty to do or not to do as she thought fit; and which, if done, would extend over the whole remainder of his life.”

The present case is weaker for the' appellant than that just cited, for here the plaintiff received a salary for his services in the decedent’s business, and lived with the decedent. Further doubt is thrown upon the existence and precise nature of the alleged agreement by the affidavits upon which the application was made in April, 1883, to change the plaintiff’s name. The plaintiff there states: “ That your petitioner’s reasons for assuming such name are that your petitioner is a nephew of Joseph Gall, of the City of New York; that said Gall is advanced in life, and has no wife, or children, and is desirous that his name be continued, and-that your petitioner should take and bear his name, and that it is the name of Gall: and that said Gall has expressed his intention to make your petitioner a legatee under his said Gall's will, if your petitioner shall take and bear his name.”

The decedent, in his affidavit upon the same application, states: “ That he has no wife or children, and is desirous that his- said nephew should assume and bear his name, and that on the condition of his so doing it is his inte7ition to make the said Charles Funkenstein a legatee under his will.”

Here we have an expression of intention, but not a word in either affidavit as to any agreement, much less an agreement to make the plaintiff his residuary legatee.

Further in the plaintiff’s affidavit of October 28, 1886, presented to the surrogate, he makes this statement: “ About November 10, 1882, I took charge of my uncle’s interest in the Union Square business. I did so at the special instance and request of my uncle and aunt, who insisted that I should remain with them and give up my position in San Francisco, and that if my conduct would merit it, they would adopt me as their son, having no children, and thus perpetuate the name of Gall, of which name and his business the old gentleman was very" proud.”

This statement was entirely inconsistent with the unconditional agreement set forth in the present complaint, and it throws additional doubt upon the existence of any such agreement.

These considerations would have sufficed to sustain the dismissal of the complaint, but they are re-inforced by the fact of the decedent’s second marriage and the existence of lawful issue. The parties, whatever their original understanding, could never have contemplated a restriction upon the decedent’s right to marry, or to provide for his children in case such marriage was fruitful. Nor could they have contemplated the taking, by the plaintiff, of the decedent’s entire estate to the exclusion of any such future wife or child. If such an agreement had been made, it certainly would have been against public policy and void. Whatever agreement was made, was necessarily subject to such possibilities, and was limited by implication accordingly.

It will not, therefore, be necessary to consider the question with regard to the Statute of Frauds, as, for the reasons already given, the judgment should be affirmed, with costs.

O’Brien, J., concurred.

Van Brunt, P. J.

I concur in the result. I do not think that the courts will enforce a contract whereby a party deprives himself of all power to bequeath or devise by will the property of which he is the owner at death, except in cases of adoption, where the contract is made for the benefit of an infant, and not to the exclusion of children. It will certainly not do so in a case where the agreement is unilateral, and where it may be terminated by the other party at will.

Judgment affirmed.

Note on Contracts to make or refrain from making testamentary DISPOSITIONS.

The following cases in connection with cases in the text, will furnish the needed suggestions as to the dangers to be avoided in drawing contracts intended to restrict the subsequent exercise of testamentary power.

1. Promise to leave specified property.— Kenyon v. Youlon, 53 Hun, 595. The plaintiffs in ejectment claimed as devisees, and the defendant as the equitable owner under an oral agreement with testator whereby the latter had agreed to convey or devise the premises to defendant, and another in consideration of their moving on the premises and taking care of the decedent during her life. The defendant having fully performed the agreement on her part demanded judgment for its specific performance. Held, that defendant was entitled to have the contract enforced.

2. Sherman v. Scott, 27 Hun, 331. A husband pursuant to an oral agreement with his wife, procured certain real estate to be conveyed to her, she agreeing to execute to him a lease thereof for the term of his life, and also to make a will devising him the residue in case he should survive her, and in case he did not to make certain devises and bequests. The wife made the lease in accordance with the agreement, but died without making a will, leaving her husband surviving. Held, that an action might be maintained against the heirs at law of the wife to compel specific performance of the agreement.

3. Parsell v. Stryker, 41 N. Y. 480. A grandfather let his farm to his grandson during the life of the lessor, on condition that the lessee should occupy the place, the lessor to have possession of a portion of the house on the premises, and the lessee to do all the work and to have two-thirds of the produce, and the lessor one-third; and it was further agreed the lessee should have the farm upon the death of lessor, and that lessor would make a will devising the farm to lessee free from all encumbrances. The lessee conveyed the premises in his life time to another and died without making a will. The lessee fully performed the agreement on his part. Held, that the agreement was valid and might be enforced by compelling a conveyance from the heirs of lessor or purchasers, with notice. The court say: “ As to plaintiff’s equities it made no difference whether the agreement was to deed the farm at a future day on performance by plaintiff, or to devise the farm by a will made in the life time of the party, a court of equity will decree the specific performance of the latter agreement after death, where otherwise unobjectionable, equally with a contract to convey while living.”

4. Promise to leave all.—Schutt v. Missionary Society of the Methodist Episcopal Church, 41 N. J. Eg. 115. OneG. wrote to his nephew living in Germany, that if he would come to this country, and take care of him and his wife, who were childless, he would leave him all his fortune. The nephew came and took care of his uncle and aunt until his uncle’s death.—Held, that this constituted a contract enforcable by the nephew against the legatees and representatives of the uncle claiming under a will of the uncle which made no provision whatever for the nephew.

5. — or half .—Roehl v. Haumesser, 114 Ind. 311. Plaintiff filed a claim against the estate of a deceased person setting up a contract by which decedent had agreed in general terms to devise and bequeath the plaintiff “ one-half of my estate.” Held, on demurrer that the contract applied to both the real and personal property which decedent had left at the time of his death subject to his disposition by will, and was sufficiently definite to sustain the action. The court says: “ The contract was, therefore, sufficient to sustain an action for specific performance or for damages for its breach, and this being an action of the latter nature, it was not necessary to set out in the complaint a particular description of the property owned by decedent at the date of his death.”

6. — to leave a specified term.—-Wellington v. Apthorp, 145 Mass. 69. Action against the representatives of a deceased person upon a contract made by decedent, by which he agreed to leave plaintiff a certain sum of money in his will, in consideration of her performing certain services tor him. Held, that the performance of the consideration by plaintiff rendered the contract binding, and gave her a fight of action upon it.

7. Partnership assets.—Eldred v. Warner, 1 Ariz. 175; s. c., 25 Pacific Rep. 800. Partners entered into a written agreement that in case of the death of either, the survivor should settle the business and should be entitled to all the residue of the partnership property after paying the debts. Held, that though the instrument had not the requisites of a valid will, it could be enforced by the survivor in suit in equity against the administrator of the deceased partner, to obtain possession of the property in specie.

8. — to make child his heir.—Davis v. Hendricks, 99 Mo. 478. An alleged contract that a testator would adopt plaintiff as his child and would grant and devise to her all his property at his death is not supported by evidence that the testator agreed to adopt plaintiff as his child and make her his heir. The evidence only placed the adopted child in the position of a natural one.

9. — to adopt.—Sharkey v. McDermott, 91 Mo. 647. A man and wife entered into an agreement to adopt plaintiff as their child and leave her their property at their death, but failed to execute the agreement as to the adoption. Plaintiff wholly performed the agreement on her part by living with them and paying them all the attention due from a child to parents. The husband died leaving all his property to his wife. Plaintiff continued to live with the wife as before until the latter died intestate. Held, that plaintiff was entitled to specific performance of the contract, she. having the paramount claim of a creditor or equitable owner in consideration of her services.

10. Covenant not to make will,—Taylor v. Mitchell, 87 Pa. St. 518. C., by an agreement under seal for valuable consideration, covenanted that he would not by deed, mortgage, sale, judgment, devise or otherwise prejudice or interfere with the rights of heirs at law equally sharing in his real estate. C. subsequently made a will wherein he devised his real estate to certain of his heirs, not including T. Held, that T. might maintain an action to recover his portion and was not bound to resort to an action for damages.

11. Disposal during life.—Austin v. Davis, 128 Ind. 472 (1891); 26 Northeast Rep. 890. An agreement to leave an adopted child whatever property the adopter has at his death, leaves the adoptor free to dispose of his property during his life by gift or otherwise.

13. Double aspect of instrument.—Smith v. Tuit, 127 Pa. St. 341. A paper in the form of a will devised real estate expressly in consideration of services to be rendered by the devisee in caring for testator. The instrument also provided that the devisee should have possession of the land in the life time of the testator. Under this provision the devisee obtained possession and faithfully executed his part of the contract. Held, that the devisee lost its revocability by devisee’s performance, and must be treated as an executed contract, and that ■devisee could not therefore be ejected by the testator or his grantee.

13. Probate.—Day, Exp., 1 Bradf. 476. A conjoint or mutual will is valid and may be admitted to probate, on the decease of either of the parties as his will; such an instrument is a will subject of probate, for though irrevocable as a compact, is revocable as a will, and therefore a testamentary act. S. P., Matter of Diez, 50 N. Y. 88.

14. Giles Estate, 11 Abb. N. C. 57. A claim that testator had by contract precluded himself from making an effective testamentary disposition such as that contained in the will unless manifestly devoid of seriousness and substance, raises a controversy of which the surrogate has no jurisdiction.

15. Hobson v. Blackburn, 1 Add. 277. Upon adverse applications in the prerogative court for the probate of a joint will, and the probate of a subsequent separate will of one of the persons who executed the joint will, the court say : “ I have no hesitation whatever in rejecting the allegation propounding the mutual or conjoint will .as that of the party deceased in this cause on the principle that an instrument of this nature is unknown to the testamentary law of this ■country ; or in other words that it is unknown as a will to the law of this country at all. It may, for aught that I know, be valid as a compact—-It may be operative in equity to the extent of making the devisees of the will trustees for performing the deceased’s part of the.compact. But these are considerations wholly foreign to this court which looks to the instrument entitled to probate as the deceased’s will and to that only. The allegation plainly proceeds upon a nature of irrevocability of the instrument which it propounds as the will of the deceased. Why, this very circumstance destroys its ■essence as a will and converts it into a contract; a species of instrument over which this court has no jurisdiction. Upon these broad .and, as I apprehend, sufficiently intelligible grounds I reject .this allegation.”

Schouler on Wills (2 ed.) § 456, states: “The real point of the decision in Hobson v. Blackburn (the leading case adverse to such wills) was that such an instrument, though jointly executed, could not be set up in probate against the later will of one of the parties •which revokes his share of the mutual disposition ; in other words it only denied the theory that joint wills were irrevocable, in the strict testamentary sense, unless by the joint or mutual concurrence of the testators. Joint dispositions of property under a testamentary instrument are, therefore, though irrevocable in equity as a compact, revocable as a will by either testator in the usual manner so far as relates to his own disposition.”

16. — revokhig.—Matter of Keep, 17 State Rep. 812; s. c., 2 N. Y. Supp. 750. The surrogate will not entertain a petition to revoke probate of a will on the ground that testator under an agreement with petitioner to make mutual wills had made a previous will; any interest which petitioner might acquire under such agreement in testator’s estate can only be enforced in a court of equity.

17. Security for promise not to revoke.—Winchell v. Latham, 6 Cow. 682. Holding that a note given by a devisor in his life time to secure a devisee in a will that he had made against the alteration and revocation of the will was not given on a good legal consideration.

18. Action for damages.—Stone v. Todd, 49 N. J. Law, 274. An action at law will lie against the representatives of a deceased person for the violation of an express promise by decedent to pay for services by a legacy.

19. Contract valid m part.—Johnson v. Hubbell, 10 N. J. Eq. 332 ; s. c., 5 Am. Law. Reg. 177 ; 66 Am. Dec. 773. A brother conveyed a portion of his land to his sister under an oral agreement with their father to leave all his property equally to his two children share and share alike. The father died leaving a will in violation of the agreement, giving a small portion of his estate to his daughter and the residue to third persons. Held, that although the agreement to make a will was valid and was taken out of the statute of frauds as to the son by his performance of his part of the agreement, there being no binding agreement with the daughter, the enforcement of the agreement, in the son’s behalf would be refused in equity on the ground that it would work injustice to the daughter.

20. Robinson v. Ommaney, L. R. 23 Ch. Div. 285; s. c.. 31 Weekly Rep. 525 ; 52 L. J. Ch. 440. In an action for damages for the breach of a covenant not to revoke a will made by an unmarried woman, it was objected that the covenant was void as against public policy; for the covenant not to revoke a will was in effect a covenant not to marry, for that is one mode of revocation. Held, that the covenant was devisible ; so far as it was in restraint of marriage it was bad, but it might be enforced where the revocation was made by a subsequent will.

21. Statute of frauds.—Austin v. Davis (Ind. 1981) 26 Northeast Rep. 890. A contract by an adopting parent to leave the adopted child all his property at his death in consideration of the child behaving as his daughter is void under the statute of frauds where the property is land and personalty exceeding in value $50 ; and performance on the part of the child is not sufficient to take the case out of the statute. So held in an action in the nature of specific performance.

22. Ellis v. Cary, 74 Wis. 176. An oral promise to devise and bequeath real and personal property as compensation for services to be rendered is within the statute of frauds as to the real estate ; and being indevisible the promise fails as to the whole. Performance by the promisee in rendering the agreed services, she not having been put in possession under the agreement, is not sufficient to take the promise out of the statute.

23. Gooding v. Brown, 35 Hun, 148. Under an oral agreement two brothers executed reciprocal wills. One of them revoked his will, and died intestate. The survivor brought an action against the heirs and next of kin of decedent to establish the revoked will or to compel the defendants to release and convey to him the right he had acquired under the agreement. Held, that there being no requisite part performance to take the agreement out of the: operation of the statute of frauds, it could not be enforced.

The court say: “The fact that the plaintiff executed a will does not establish performance of the contract on his part so as to> divest himself of any rights of property, nor did it place him in st situation from which he could not retreat without prejudice to any rights existing at the time the agreement was made..... The element of fraud which equity will recognize in support of the right to the execution of a contract within the statute does not appear in this case.”

24. Carmichael v. Carmichael, 72 Mich. 76. Action for specific performance. A father and mother under an oral agreement each made a will at the same time, the object of which was to make ait equitable division of their property among their children. The father died first and the mother accepted the benefits of his will made under the agreement. Held, the contract having been fully performed on the part of the father, the oral agreement was taken out of the statute of frauds, and that a court of equity therefore would in behalf of the persons interested prevent the mother from disposing of her property in her life time in violation of the contract.

25. Gould v. Mansfield, 103 Mass. 408. Bill in equity praying; for a decree to compel executors and beneficiaries named in a wilh to deliver to plaintiff the estate of testatrix. The bill alleged an .oral" agreement between plaintiff and testatrix that each of them should make a will in favor of the other and give and devise thereby all her property both real and personal to the other and that neither of them should make any different will; and that plaintiff made her will in favor of defendant’s testatrix in accordance with agreement and did not revoke it during her life time. Held, that the agreement was a contract for the sale of lands within the statute of frauds, and there-being no past performance which amounted to anything, it could not be enforced.

The court say: “The plaintiff says she made a will devising her property to Nancy. But such an instrument was ambulatory and might be revoked by various acts or by implication of law from subsequent changes in the condition or circumstances of the testator."

26. Agreement for support not an agreement by its terms not to ¡be performed in one year.—Thorp v. Stewart, 44 Hun, 232. Partition between heirs. .The defendant claimed that he was the equit:abie owner of the premises under a parol agreement made with intestate, by which latter agreed in consideration of the defendant, who was his son, staying with him and his mother while they lived and caring for them, he should have the title to the premises on the death of.the survivor of them. The defendant performed the ..agreement on his part. Held, that the agreement was not an agreement within the statute of frauds, which by its terms was not to be .performed in one year, and it could therefore be enforced.

27.. Suit in equity to reach specific property.—Newton v. Newton, 46 Minn. 33 (1891) ; 48 Northwest Rep. 450. Where an agreement -.was made to bequeath a note, held, that the person entitled to the mote under such agreement, upon the other party to the agreement .dying intestate, might maintain an action in equity to have the holder of the note, with notice, declared a trustee for her and to restrain him from collecting the proceeds.

28. Mutual Life Ins. Co. v. Halloday, 13 Abb. N. C. 16. An agreement to devise land if founded on a good consideration and .clearly proved may be enforced in equity, by holding a will made pursuant to it irrevocable ; and a subsequent will inconsistent therewith may be adjudged void as a cloud on title at the suit of those .claiming under the original promised and devisee.

29. Injunction against breach.—Bird v. Pope, 73 Mich. 483. In consideration of the devise of certain real and personal estate .the devisee entered into a contract conditioned for the support of the devisor during his lifetime, and entered upon its performance ; and without default on the devisee’s part, the devisor attempted to cancel the will and conveyed the land to a third person.—Held, that the devisee might maintain an action to set aside such conveyance and enjoin the devisor from conveying or incumbering the premises.

30. Charging representatives with trust.—Bolman v. Overall, 80 Ala. 451. Action for specific performance. The complainants were legatees named in an instrument in the form of a will and which purported to have been .executed in consideration of valuable services rendered to testator. The testator executed a subsequent will revoking the previous one and leaving her entire property to other beneficiaries. The testator having died, the latter will was admitted to probate, and the executor and beneficiaries named in it are the defendants in this action. Held, (1) that the action might be maintained; (2) that the probate of the will, though binding on all parties, was no obstacle to it since it was not attempted to disturb the probate, but to fasten a trust on the property in the hands of the executor and legatees.

The court say: “The principle upon which courts of equity undertake to enforce the execution of such agreements is referable to its jurisdiction over the subject of specific performance. It is not claimed of course that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy, for this can be done only in the life time of the testator and no breach of the agreement can be assumed so long as he lives, and after his death he is no longer capable of doing the thing agreed by him to be done. But the theory on which the courts proceed is to construe such an agreement unless void under the statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisee, and to enforce such trust against the heirs and personal representatives of the deceased or others holding under them charged with notice of the trust.’’

31. Schumacker v. Schmidt, 44 Ala. 454. Two persons made reciprocal wills stating that “ the survivor shall enter into possession of the estate of' the other and shall hold it for his own sole use and benefit and this is the mutual agreement of us.’’ One subsequently made a will leaving his property to a third person, and died. The survivor filed a bill to have the second will declared void, or if it was deemed material to have it proved that it be decreed subordinate to plaintiff’s rights and all that passed under it be held in trust for him. Held, that the reciprocal will was revokable and that the bill should be dismissed. The court says: “ The first decedent while he lives can receive nothing from the other, and his death concludes the operation of the instrument as to any reciprocal or hoped for advantage. On the other hand if he revokes it and makes other disposition of his property the survivor is not injured.”

Where plaintiff, who had a home of his own, was requested by his father to leave it, and live with and care for him, the father promising to will him his farm, but afterward becoming insane was unable to make the"will. Held, that plaintiff could recover on a quantum meruit. Hudson v. Hudson (Georgia), 13 S. E. Rep. 583.

Of this the Harvard Law Review says: “ This decision seems inconsistent with the rules of quasi-contracts, there being clearly no implied promise on the part of the father to compensate the plaintiff otherwise than by will. Osborne v. Guy’s Hospital, 2 Strange, 728, would seem to be in point. Clearly, the plaintiff in' giving his services looked to a will alone for compensation. ”  