
    Kling, Admr., etc. v. Bordner.
    
      What agreements must be in writing — Statute of frauds — Section Jfl99, Revised Statutes — Valid contract to leave estate by will must be certain and identify the property — Verbal agreement to leave property by will is void, when — Payment of consideration does not validate, when — Effect of part performance in contract void by statute — Wills—Contracts.
    
    1. The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.
    2 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.
    S. Where the parties themselves have construed the writing as not constituting such a contract between them, and subsequently entered into a verbal agreement on the same subject, the court will adopt and give effect to that construction.
    4. A verbal agreement to leave real property to another by will, or otherwise, in consideration of personal services to be rendered by the latter, is within the statute of frauds, and void; and the payment of the consideration by rendering the services is not such performance as will take the agreement out of the operation ot the statute.
    5. The doctrine of part performance obtains in equity only, and does not avail to render a contract which is void by the statute because unwritten or unsigned, capable of being sued on in a court of law.
    (Decided June 25, 1901.)
    
      Erroe to the Circuit Court of Summit county.
    Action on alleged contract of defendant’s intestate to leave her estate, by will, to the plaintiff. Plea of the statute of frauds. Judgment for plaintiff, affirmed by the circuit court. Reversed.
    The action below was brought in the common pleas by Anna E. Bordner, against Adam E. Kling as administrator of the estate of Susannah Maconaky deceased, on an alleged contract of the decedent to leave her estate, by last will, to the plaintiff. The petition is as follows:
    “The plaintiff alleges the following facts, which constitute her cause of action in this behalf: On or about the 5th day of June, 1896, the plaintiff was living at Harrisburgh, ih the state of Pennsylvania; on said last named day she received a letter from Susan-nah Maconaky, then alive and residing at Akron, Ohio, in which letter the said Susannah requested this plaintiff to leave her home at said Harrisburgh, and come to Akron, aforesaid, for the' purpose of caring for and nursing the said Susannah, who was at the time ill, which this plaintiff accordingly did. Thereupon and thereafter, to-wit: on the 11th day of June, 1896, the sáid Susannah Maconaky and this plaintiff entered into a verbal contract, whereby the plaintiff agreed to abide with, nurse, attend and care for the said Susan-nah, in sickness or in health, for as long a time as she, the said Susannah might live. In consideration of which promise of the plaintiff, the said Susannah Maconaky on her part agreed to give to this plaintiff, all of her estate and property, except so much thereof as might be necessary to pay the debts and funeral expenses of the said Susannah.
    “The plaintiff duly kept, observed and performed all and singular the conditions and stipulations of said agreement on her part to be carried out; she left her own family and home, and stayed with, nursed, cared for and attended, faithfully and diligently, the said Susannah all the time from said last named date until her death, which took place on the — day of July, 1896. Thereupon the defendant was duly appointed and qualified as the administrator of the estate of said Susannah Maconaky, deceased, and is still acting as such.
    “The said Susannah Maconaky did-not perform or keep her part of said agreement, although the plaintiff had fully executed her part of it, and did not give to this plaintiff, by last will or otherwise, any part of the estate or property whereof she was the owner at the time said agreement, was entered into, but died intestate.
    “The defendant, as the administrator aforesaid, has converted all the assets of said estate into money, and the entire amount therefrom is the sum of $1,740.32. Out of said money so in his hands the defendant is obliged to pay the debts and funeral expenses of his said intestate, which amount to the sum of $605.35 and no more. The costs of administering the said estate, including the commissions and compensation of the defendant as such administrator, is the sum of $191 and no more. And the reasonable expense of a tombstone for said decedent is $55. Leaving of the assets of said estate, after deducting the said sums expended in payment of said debts, funeral expenses, custs and compensation, the sum of $848.65 which would have accrued and belonged to this plaintiff if the defendant’s intestate kept and observed her said contract.
    “By reason of the premises and the violation of said contract by said decedent, after the same had been fully executed on the part of this plaintiff, she — that is to say, the plaintiff — has been damaged in the sum of |848.65.
    “On the 27th day of April, 1897, the plaintiff duly presented her claim against said estate, as above set forth, duly verified as required by law, to the defendant, as the administrator aforesaid, for allowance. But the defendant thereupon refused to allow the same as a valid claim against said estate, but disputed and rejected all and every part thereof:
    “Wherefore the plaintiff prays judgment against the defendant as the administrator aforesaid, for the said sum of $848.65, for such other relief as she may be entitled to.”
    The answer avers that the estate left by the decedent, with the exception of a few household goods of small value, consisted entirely of real estate; and that the proceeds of said real estate, which was sold by the defendant under the order of the court in the course of administration, after the payment of the debts and costs of administration are the only assets of the estate in his hands for administration and distribution. The answer denies the contract set up in the petition, and alleges that if such contract was made, it is within the statute of frauds, on which he relies in defense to the action. The answer further avers the fact to be that plaintiff, recognizing that there was no such contract, “presented to said administrator an account for her services to decedent Maconaky during the whole of her last illness, and for services before said last illness, and for services after the death of said Maconaky; and that on November 30,1896, defendant allowed plaintiff in full on said account for all she claimed for services during said last sickness of decedent, and which allowance on said account plaintiff accepted by her silence and by her neglect to sue on same within the timé allowed by law, and this defendant has at no time recalled or rejected said account as so allowed but the said allowance still stands.”
    The trial of the cause to a jury, at the January Term, 1898, upon the. issues joined by the foregoing pleadings, resulted in a verdict for the plaintiff for the amount claimed in the petition; and, after the overruling, of a motion for a new trial made by the de fendant, judgment was rendered on the verdict. Thereafter, but still at the same term, the court, on motion of the plaintiff, granted leave to amend the petition, as stated in the record, “to conform to the facts proved on the trial.” This leave was granted against the defendant’s objection, and he duly entered his exceptions. Thereupon the plaintiff filed her amended petition, containing as her first cause of action, a copy of her original petition, and adding the following as a second cause of action:
    “For her second cause of action, this plaintiff here adopts and repeats all of the allegations of her first cause of action herein, in regard to her leaving Harris-burgh, her receipt of a letter from Susannah Maeonaky then alive and residing at Akron, Ohio, and the purport of the said letter in regard to the death of the said Susannah Maconaky, the appointment and qualification of the defendant as her administrator, and in regard to the defendant’s conversion of the assets of said estate into money, and the amount thereof, and in regard to the amount of the debts and funeral expenses of said decedent, and costs of administering her estate, and the reasonable expense of a tombstone at her grave, and in regard to the amount of the assets of said estate after deducting all of said sums expended and to be expended in the payment of said debts, funeral expenses, costs, compensation and tombstone; and thereupon she further says, that on the said 7th day of June A. D., 1896, the said Susannah Maeonaky being then alive, caused and directed to be written a letter, mentioned in said first cause of action of the purport and effect in said first cause of action named, a true copy whereof is hereto attached, marked ‘Exhibit A.’ Whereupon this plaintiff accordingly did, immediately after the receipt of said letter, accept the proposition therein contained, and did come to the said city of Akron, aforesaid, and there duly kept, observed and performed all and singular, the conditions and. stipulations by the said letter required of her to be kept and performed, left her own family at home, and staid with and nursed, cared for and attended faithfully and diligently the said Susannah, all the time from the date of her said arrival in Akron, until the death of said Susannah, which took place as alleged in'said first cause of action, and which letter, and acceptance and performance of the same by this plaintiff constituted a written contract between her and the said decedent, by which the said Susannah Maeonaky on her part agreed to give to this plaintiff all of her estate and property, all of the assets of her estate, which might be left at her decease, except so much as might be necessary to pay the debts and funeral expenses of the said Susannah. The said Susannah Maeonaky did not perform or keep her part of said agreement in any wise, although the plaintiff had fully executed her part thereof, and did not give to this plaintiff by last will or otherwise any part of the assets or estate whereof she was the owner at the time the said agreement was entered into, but died intestate. And the plaintiff says on the 27th day of April, A. D. 1897,' she duly presented her claim against the estate of said decedent, as alleged in said first cause of action, for allowance, to the defendant, who thereupon refused to allow the same as a valid claim against said estate, but rejected every part thereof. By reason of the premises, and the violation of said contract by said decedent after the same had been duly executed on the part of this plaintiff, she, the plaintiff, has been damaged in the sum of $848.65, which she claims, and for which she prays judgment against said defendant.”
    The exhibit referred to in this second cause of action is as follows:
    “Exhibit A.
    “Aicron, O., June 7, 1896.
    “Dear Mother:—
    “Aunt Susan is very low and if you can possibly come do so at once. She wants you to take care of her. She has to be all alone part of the time. She says she will make it all right with you if you come. If you haven’t money to pay your fare she will send it to you. If you come and stay with her after her death all that is left after her debts and funeral expenses are paid shall be yours. She wants.you to come if you possibly can. I told her I thought you would come, poor thing, she cried when she told me to write for you. I think she thinks she is going to die before Jong. If you can not come let her know by return mail, but come if possible for she seems to want you so bad, and it may be the last you can do for her which I hope not. I am well at present, hoping this will find you the same.
    “Your son,
    “Address “WILL.
    “Mrs. Susan Maconaky,
    “600 Locust St.,
    “Akron, Ohio.”
    
      The defendant, protesting against the allowance of the filing of the amended petition, filed an answer thereto denying the contracts alleged, pleading the statute of frauds, and the other facts set forth in his answer to the original petition.
    A bill of exceptions was duly taken, setting out all the evidence, the charge of the court, exceptions to the admission and rejection of evidence, to the giving of certain instructions requested by the plaintiff, to the refusal to give instructions requested by the defendant, and to portions of the general charge; which, so far as deemed important in the decision of the case, will be noticed in the opinion.
    The judgment rendered by the common pleas court having been affirmed by the circuit court, the case has been brought here.
    
      A. E. Kling and Harvey Musser, for plaintiff in error.
    The petition alleges a verbal contract only; and the plaintiff below claimed that because of a breach of the verbal contract set forth in her petition that she was damaged in the sum of' $848.65. The amount of damages was determined by the pleader who drew the petition, by taking the aggregate of the proceeds of the sale of the chattel and real property, and by deducting therefrom the costs of administration, funeral expenses and debts." We maintain that under this petition the measure of damages was not what the estate was worth, but what the services of Mrs. Bordner were fairly worth. If the contract alleged in the petition was made and the same was violated, then the measure of damages for such breach, was what the services of Mrs. Bordner were fairly worth.
    
      
      Norris, Admr., v. Clark, 7 Dec. (Re.) 564; 3 Bull., 994; Crabill v. Marsh, 38 Ohio St., 331; Howard v. Brower, 37 Ohio St. 402.
    The alleged contract attempts to dispose of real estate by parol. Such contract is void under the statute of frauds. Section 4198, Rev. Stat.
    As stated above no claim was made in the petition that the contract was in writing, or that Will. Bordner was the agent of Mrs. Maeonaky and that he, Will, was authorized by her, “by writing f’ so that we contended and now contend, that the alleged contract was absolutely void and of no effect. Hopple v. Hopple, 2 Circ. Dec. 59; 3 R. 102.
    We further maintain that plaintiff’s petition shows an effort to dispose of property after the death of Mrs. Maeonaky. Such disposition can only be made by will. Section 5914, Rev. Stat.; Phipps v. Hope, 16 Ohio St., 586.
    The contract alleged is merely a personal contract of Mrs. Maeonaky. It is not one that can be enforced by or against her administrator. It did not survive Mrs. Maeonaky. It is one that attempts to defeat the laws of descent and distribution. It takes effect, if at all, at the death of Mrs. Maeonaky. Courts do not favor such contracts.
    Part performance takes a contract out of the statute of frauds, in equity only, and hence it does not entitle the plaintiff to maintain the judgment in this case. Brown on Statute Frauds, 458; Fry on Specific Performance, 251, Section 384; Wheeler v. Reynolds, 66 N. Y., 227; Pomeroy on Specific Performance, 152; Story on Equity Jurisprudence, Sections 762, 764; Cronk v. Trumble, 66 Ill., 428; Gosse v. Jones, 73 Ill., 508; Knatt v. Harvey, 19 Wisc., 110; 1 Parsons on Contracts, 531; Titman v. Titman, 64 Pa. St., 480; Pillage v. Pillage, 34 Wisc., 136.
    
      This suit is for money damages only, against the administrator, not for the specific performance in equity, against the heirs at law. Hence the principle of part performance cannot control and does not take the case out of the statute.
    The mere payment of the purchase money, whether made in money or services, will not take the case out of the operation of the statute. Sites v. Keller, 6 Ohio, 484; Pollard v. Kinner, 6 Ohio, 528; Armstrong v. Kattenhorn, 11 Ohio, 265; Ham v. Goodrich, 37 N. H., 185; Horn v. Ludington, 32 Wisc., 73; Temple v. Johnson, 71 Ill., 13; Sulton v. Rowley, 44 Mich., 113.
    Courts of equity enforce specific performance of a parol agreement for the devise or conveyance of real estate not on the ground of part performance, but because the breach is a fraud: “A mere refusal to perform a parol agreement, void under the statute' of frauds, is in no sense a fraud, either in law or equity.”
    Again, before Mrs. Bordner can claim damages for the breach, (which we do not concede she can,) other than such sum as will fairly compensate her for her services, she must prove that her services were peculiar, — not of the ordinary — and that the same were incapable of being measured by pecuniary compensation.
    
      Grant é Bieber, for defendants in error.
    There seems to be a ^general complaint in the brief of the plaintiff in error that the kind of contract sued on — that is, a contract by which one agrees, upon a sufficient consideration, to convey property by will — is in some undefined and undisclosed way under the ban of the law and not to be enforced by the courts.
    The very reverse of this is the truth.
    
      In Phipps v. Hope, 16 Ohio St., 586, this court seems fairly to recognize the action for a breach of this kind of agreement. And the conclusion thus reached is sustained by authority. Emery v. Darling, 50 Ohio St., 160; Canada v. Canada, 6 Cush., 16; Fitch v. Fitch, 8 Pick., 478; Trull v. Eastman, 3 Metc., 121; Jenkins v. Stetson, 9 Allen, 128; Logan v. McGinnis, 12 Pa. St., 27; Parsell v. Stryker, 41 N. Y., 480; Wright v. Tinsley, 30 Mo., 380; Gupton v. Gupton, 47 Mo., 37; Rivers v. Rivers, Exrs., 3 Dessau., 90; Pollock’s Principles of Contracts, 309.
    A great, deal of the plaintiff’s brief is concerned with the question of whether the contract sued on is within the statute of frauds.
    If the controversy turned wholly upon a verbal agreement declared on in the original agreement, and if it were admitted by us that the contract was one concerning real property, and the proof showed that it had not been completely performed on one side of it, then perhaps some of the many authorities cited would be pertinent. But since the amended petition declares upon a written contract, to which all the proof was directed,. any extended discussion of the cases referred to in the brief would be a bootless task.
    We think the controversy not an open one in Ohio. It seems to have been directly settled. Thayer v. Luce, 22 Ohio St., 62; Himrod Furnace Co., v. Railroad Co., 22 Ohio St., 451; Chase v. Lowell, 7 Gray, 33; Sanborn v. Flagler, 9 Allen, 470; Tuft v. Mining Co., 14 Allen, 407.
    When one party to a contract of the kind sued on here has voluntarily put it out of his power to perform, the remedy to the one aggrieved is in damages, and the measure of damages is the value of the estate to which the plaintiff here would have succeeded had the agreement been fully carried out by both parties to it. This proposition seems to be the one to which the language of this court necessarily leads in the case of Shahan v. Swan, 48 Ohio St., 25; Frost v. Tarr, 53 Ind., 390.
   Williams, J.

The amended petition declares on two distinct contracts between the same parties, both of which, it is claimed, created precisely the same obligation. The first contract, it is alleged, arose from the acceptance by the plaintiff of the terms of the letter written to her by her son, and known in the record as exhibit “A.” This is construed by the pleader as constituting a written contract on the part of the defendant’s intestate to give the plaintiff by last will, or some other mode of transfer, all of the estate, real and personal, of which the intestate should die seized, except only so much as should be necessary for the payment of her debts and funeral expenses. The other contract, which,- it is alleged, was entirely yerbal, and was made a few days after the first one, was exactly to the same effect. The consideration for each of the alleged agreements on the part of the intestate was precisely the same, which was, that the plaintiff should attend upon, nurse and care for her as long as she lived. The alleged'breach of each contract' is identical, which is that the intestate did not give her estate, by last will, or otherwise, to the plaintiff; and the relief demanded for such breach is the same under both eontrácts, namely, that the plaintiff recover all of the estate of which the intestate died seized, except sufficient to pay her debts and funeral expenses. It is entirely clear there could not be a recovery on both contracts; for a recovery on either, would exhaust the subject of the action, necessarily supersede the other contract, and preclude a recovery upon it. This situation is not alluded to for the purpose of putting the plaintiff to an election; but it is of importance in the consideration of a feature of the case that will be noticed hereafter. If the plaintiff’s action can be maintained on either contract, her election to rely on that one may be presumed.

It is admitted that, at the time of the making of' tfyese alleged agreements, and at the time of the intestate’s decease, her estate consisted principally of real property situated in this state, and that the only assets in the hands of the defendant as her administrator, is the balance of the proceeds of that property, it having been sold by him in the due course of administration, remaining after payment of the debts, and cost of administering the estate. This balance is, itself, under our statute real, and not personal property, and goes by descent to the heirs. Section 6171, Revised Statutes. So that, both of these contracts, allowing them the effect claimed by the plaintiff, are agreements for an interest in and concerning lands, on which an action is forbidden by that provision of our statute of frauds contained in Section 4199 of the Revised Statutes, unless the agreement, or a memorandum thereof, is in writing signed by the party to be charged, or by some person by him lawfully authorized. This is authoritatively settled by the case of Shahan v. Swan, 48 Ohio St., 25.

It is the contention of the plaintiff that the letter received from her son, which has already been referred to, constitutes a memorandum in writing of the first alleged contract that is in compliance with the requirements of the statute; and that, performance of her part of the subsequent verbal agreement is sufficient to take that contract out of the operation of the statute. It is that view, which appears to have been sustained by the courts below, of which the plaintiff in error chiefly complains, and it becomes the important subject of inquiry in the case.

As is the case in most instances of legislative innovation upon long established rules and practice, some courts were reluctant to accord to the statute of frauds its intended scope and effect; and it is not surprising that cases are found in which its provisions have been held satisfied by writings that were quite vague and incomplete. The salutary character of the statute, however, is now generally recognized, and full effect given to its terms. The memorandum which the statute requires “to be in writing,” is, to use its language, a memorandum of the “agreement,” between the parties; and it is now well settled, as held by Chancellor Kent, in Parkhurst v. Van Cortlandt, 1 Johns. Ch., 273, that thb memorandum in writing, “to be valid within the statute of frauds, must not only be signed by the party to be charged, but must contain the essential terms of the contract, expressed with such clearness and certainty, that they may be understood from the writing itself, or some other paper to which it refers, without the necessity of resorting to parol proof.” The rule is not less explicitly stated in Reed on the Statute of Frauds, Section 392, as follows: “First, the memorandum must show an agreement, that is to say, a concluded contract; secondly, it must be intended as evidence of such contract; and, thirdly, it must show the whole contract. A contract, then, must be shown by the writing, in which the minds of the parties have met. The memorandum must be so reasonably certain and definite in itself that the contract can be made out without requiring additional proof in parol. ‘It must contain such words as will enable the court, without danger of mistake, to declare the meaning of the parties; it must obviate the necessity of going to oral testimony and, relying on treacherous memory, as to what’ the contract itself was.’ ” No special formality in the execution of the writing is necessary, provided, as held in Anderson v. Harold, 10 Ohio, 399, it is signed for the purpose of giving it authenticity as an agreement; and the consideration need not be expressed. Nor, is it doubted that a valid agreement may be made upon sufficient consideration, to make provision by will out of one’s estate for the benefit of another, or to so dispose of his whole estate; but no promise to do so, which includes real property, is binding unless it is in writing containing the terms of the agreement expressed with reasonable certainty, and a sufficiently definite identification of the subject matter, as required by the rule above stated.

The instrument relied on in this case, tested by that rule, is inadequate. Assuming that the letter written to the plaintiff by her son is signed as required, it does not contain a promise of the defendant’s intestate to make a will in favor of the plaintiff, nor to transfer to her, by any mode of conveyance, the decedent’s estate, or any part of it that is capable of identification. The particular clause of the letter from which it is claimed such promise arose, is the statement that: “If you come and stay with her, after her death all that is left after her debts and funeral expenses are paid shall be yours.” This statement falls short of the promise that is sought to be derived from it, even if it may be considered as a direct communication from the intestate. As was said by the court in White v. Bigelow, 154 Mass., 593, where a similar statement in a letter was relied upon to establish a like promise, it “is the expression of an intention to give the property in the future, rather than an agreement binding upon her and her estate.” Maunsell v. White, 4 H. L. Cas., 1039; Caton v. Caton, L. R., 2 H. L., 127, and Maddison v. Alderson, 8 App. Cas., 467, are analogous cases. Then, it may be inquired, what was meant by the expression in the letter “all that is left,” etc.; “all” of what? The claim of the plaintiff is that all the property both' real and personal of the decedent, was intended. That is supplying by conjecture what the writing does not contain. It_ is apparent, however, that the letter referred to, not only fails to contain the promise and agreement-claimed from it by the plaintiff, but the statement above quoted, from which the agreement is supposed to have arisen, does not purport to be made to the plaintiff as a promise or agreement of the intestate, but rather as expressive of the writer’s own expectation. Most of the contents of the letter, including the statement referred to, appear to be communications to the plaintiff from her son in his individual and filial relation, and not in behalf of, or as the agent of the decedent. The only statement contained in the letter, of the latter character, is as follows: “She says she will make it all right with you if you come.” It is obvious that both parties so understood and acted upon the letter; for. soon after the arrival of the plaintiff in Akron, they, proceeded to, and did, negotiate a verbal agreement of precisely the same effect that it is now claimed had recently before been made in writing by the plaintiff’s acceptance of the terms of this letter. This they would not have done if they had understood that such a written agreement had already been entered into, and was then subsisting between them. Accepting the plaintiff’s statements as entirely true, that is the construction which both parties placed upon the letter when both were living and acting together; when both could speak, and both did speak; and it is the construction to which the plaintiff adhered after the death of the other party, until after trial and judgment in this case. In her original petition the plaintiff avers the fact to be, that upon the receipt of the letter in question, which was written on the 7th day of June, 1896, she went to Akron, where the said Susannah Maconaky then resided, for the purpose of nursing and caring for her, and “thereupon, and thereafter, to-wit: on the 11th day of June, 1896, said Susannah Maconaky and this plaintiff entered into a verbal contract whereby the plaintiff agreed to abide with, nurse, attend, and care for the said Susannah in sickness or in health, for as long a time as she, the said Susannah, might live, in consideration of which promise of the plaintiff, the said Susannah Maconaky on her part agreed to give to this plaintiff all of her estate and property, except so much thereof as might be necessary to pay the debts and funeral expenses of the said Susannah.” This verbal agreement, with the averments of the time and manner it was entered into between the parties, is reasserted and set forth as the foundiation of the plaintiff’s first cause of action in' her amended petition filed after judgment; that cause of action being an exact copy of the original petition. The second cause of action in that amended petition is not founded on a new or changed state of facts, but rests entirely upon a different construction which the pleader seeks to establish for the letter. As still further showing the understanding of the plaintiff that the letter did not constitute a contract as now claimed, it is admitted that a few months after the decease of the intestate, the plaintiff presented to the administrator for allowance and payment, a verified claim for the value of her services in taking care of the decedent until her death, and for taking care of her house after her death; which claim Was allowed by the administrator, and has never been withdrawn. It is not a question of estoppel interfering with the right of amendment. But the practical interpretation which the parties have put upon their transactions is always a proper subject of inquiry in the ascertainment of their rights and obligations under them. If it be conceded that the letter is of doubtful interpretation, the mutual recognition by both parties while both were yet living, and the continued recognition by the plaintiff since the death of the other party, that it did not create the contract, as now claimed, and that none existed between the parties until the verbal agreement was entered into as alleged in the petition, could not be disregarded, and would seem conclusive that it was neither intended nor understood to contain the terms of a contract of the purport eventually claimed from it. The law has provided with certainty for the succession to intestate property, and the rights of those so lawfully entitled to succeed to it, should not be defeated, except by some other lawful disposition by the owner that can be distinctly established.

That the judgments below cannot be supported by the verbal agreement, has been settled by the former decisions of this court. The agreement is within the statute which expressly denies the right to bring an action upon it. The performance relied on to take the agreement out of the statute is the payment of the consideration by the plaintiff, which, although it consisted of personal services rendered by her, is insufficient. Shahan v. Swan, supra; Crabill v. Marsh, 38 Ohio St., 331; Howard v. Brower, 37 Ohio St., 402, 403. It does not aid the plaintiff’s case, as her counsel seem to suppose, to treat it as one at law for damages. The doctrine of part performance is enforced only in equity, and cannot avail to render a contract which is void by the statute because unwritten or unsigned, capable of being directly sued on in a court of law. The extent of her remedy at law would be to recover the value of her services. Her action is not of that nature.

Judgments below reversed and judgment for plaintiff in error. '

Minshall, C. J., Bukket, Spear and Shauck, J J., concur; Davis, J., dissents.  