
    Kenney v. Kenney, Admx., et al.
    (Decided January 9, 1933.)
    
      Mr. Robert A. Black, for plaintiff.
    
      Mr. Sanford Brown and Mr. George E. Mills, for defendants.
   Hamilton, J.

Plaintiff, Thomas Kenney, seeks specific performance of a claimed contract entered into with his brother, J ames Kenney, to make mutual wills, which contract, if performed, would entitle the plaintiff to an undivided two-thirds interest in the real estate of his brother, James Kenney, deceased, and two-thirds of his distributive personal estate.

The trial court refused the relief to plaintiff and entered a decree in favor of the defendants.

The defendants denied the contract, and, among other things, pleaded the statute of frauds.

It is conceded there is no written evidence of any contract to make mutual wills having existed between the plaintiff, Thomas Kenney, and his brother, James Kenney, other than the wills executed by the brothers. The execution of these wills, plaintiff claims, is sufficient to satisfy the statute of frauds, requiring contracts involving real estate to be in writing, etc.

It appears from the evidence that Thomas Kenney and James Kenney went to the office of an attorney to have their wills executed. The attorney informed James Kenney, who was married, that he ought not cut off his wife in his will. James thereupon became angry and left. Later, at another time and place, he executed his will, which, it is claimed, left two-thirds of his property to his brother, plaintiff in this case. Thomas Kenney, at the time, executed his will, leaving some legacies and making James Kenney the residuary legatee. It further appears that about six months before his death, James Kenney destroyed his will and died intestate.

It is conceded that there is no mention in either will of anything concerning any prior contract to make mutual wills.

However, while it is the law that where an agreement between two parties to execute mutual wills leaving their properties to each other exists, and such wills are executed by the persons to the agreement, and thereafter the contract is broken by one of them after the death of the other, an action lies for a breach of the contract, and a proper case for specific performance may be declared. It was so held in Flower v. Flower, 32 Ohio App., 350, 166 N. E., 914. See, also, Ralston v. McBurney, 6 Ohio App., 303. Yet, in the Flower case, under circumstances which might tend to support such an oral contract, it was evident the court in the case declined specific performance, holding the evidence not sufficient to meet the demands of the statute of frauds (Sections 8617 et seq., General Code). In the Ralston case there were circumstances mentioned in the will showing consideration for the making of the will, and, further, the case was determined on the fact that the testator was indebted to the legatee for services.

There is no admissible evidence in the instant case to prove that a contract existed between Thomas and James Kenney, the brothers, to execute mutual wills, conveying the real estate. The circumstances in no way-justify an inference that would tend to satisfy the requirements of the statute of frauds.

A decree may be entered for the defendants.

Decree for defendants.

Ross, P. J., and Cushing, J., concur.  