
    Emery et al. v. Darling.
    
      Specific performance—When contract to make a will, may be enforced—Part performance.
    
    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 should 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.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Morrow county.
    The suit below was an action brought in the court of common pleas by one of the heirs against the others, of A. Cordelia Powell, deceased, to compel partition of certain real estate of which she died seized. One of them, Mary E. Darling, a sister of the deceased, filed a cross-petition, claiming that under a written contract between her and her sister, and which had been fully performed on her part, the property in equity belonged to her, and that, in specific performance of the contract, the other heirs should be required to convey to her the legal title that descended to them by the death of her sister. Issues of fact having been made upon the averments of the cross-petition by a repljq the court found upon the trial in favor of Mary E. Darling, and rendered judgment accordingly; from which the others appealed to the circuit court, where, upon the trial, the court made a finding of the facts, and rendered j udgment thereon in favor of Mary E. Darling, decreeing a conveyance of the property to her.
    
      The finding is as follows:
    “First—That A. Cordelia Powell died intestate on the '31st day. of December, A. D. 1885, leaving the following named heirs and legal representatives, viz: The said plaintiff, Homer P. Emery, her nephew; and the said defendants, Mary E. Darling, her sister; Rebecca Tupper, her sister; 'William Powell, her nephew; Alice Powell and Eunice Emery, her neices.
    “ Second—That said A. Cordelia Powell died seized of the legal title to the lands and tenements in said petition described.
    “ Third—That said A. Cordelia Powell executed and delivered to the said Mary E. Darling the paper writing offered in evidence, which reads as follows, to-wit.: ‘I, A. Cordelia Powell, do covenant and agree that in and for the consideration of my sister, Mary E. Powell Darling, staying with me as long as I require, I do give and bequeath to said Mary E. Powell Darling, all the real estate and personal property of which I may die seized or possessed.
    “A. C. Powerr.
    “October 12, 1882.’ ,
    “ Fourth—That no possession was ever taken of said premises in said petition described by said Mary E. Darling (except that she stayed with said A. Cordelia Powell thereon in pursuance with the terms of said paper writing) under said paper writing, during the lifetime of said A. Cordelia Powell, and that said A. Cordelia Powell remained in the possession thereof until her death.
    “Fifth—-That said Mary E. Darling fully performed said agreement on her part and stayed with said A. Cordelia Powell from the 12th day of October, A. D. 1882, in said premises until the death of the said A.' Cordelia Powell, and remained thereon and held posession thereof ever since, and Ns now living thereon.”
    The only question is, whether upon the facts the court erred in decreeing a conveyance by the other heirs to Mary E. Darling.
    
      Thos. E. Duncan, for plaintiff in error.
    It will be noticed that the writing contains the apt and effective words of a will and not of a contract. No present, conveyance, no right or interest conveyed to take effect while she lives. No release in any sense of her absolute-dominion over the property. We contend that lands cannot be disposed of in this way, and that it was error in the-court, under the pleadings, to admit the paper writing for that purpose. The lands were not a gift either inter vivos- or catcsa mortis, for want of delivery. Phipps v. Elope et al., 16 Ohio St., 586.
    Property*- owned by a person during his life can be disposed of at his death, in one of two ways. First—By last, will and testament, duly executed. Second—By descent^ 1 Ohio St., 283-; 7 Ohio St., 444.
    The strongest point in support of the defendant’s claim,, is, that A. Cordelia Powell in the paper writing expressed an intention to give her the property at her death. Intention, however, though clearly expressed, uncoupled with, actual disposition, cannot be interposed to interrupt or control the regular course of descent and distribution. Crane v. Doty, 1 Ohio St., 285. Directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity, unless made through the 'medium of a last will and testament. So it will be seen that the laws of descent will govern unless it is made clearly to appear that the property was otherwise disposed of under the forms of law.
    Nor can this so-called control be sustained upon the ground of part performance, for the reason that acts done in the performance of a contract, which would entitle a party to a specific performance from the other side, must be such acts as puts the party performing in such situation that the non-performance of the agreement would operate as a fraud upon his rights. The situation of the parties-must be-such, that the enforcement of the contract alone can furnish the adequate relief. The payment of money, or rendering of service is not such part performance as. avoids the operation of the statute of frauds, because a recovery for its value can be had which has always been regarded as full compensation. The specific performance of •a contract will be decreed in a propel case, where there has been a delivery of possession in performance of it, but the possession relied upon must be clearly referable to the contract and be delivered and held in pursuance of it. Armstrong v. Rathenhorns, 11 Ohio, 272; Willard’s Equity, page 586.
    Nor can the paper writing be regarded as a contract to make a will. The defendant in error makes no such claim. She makes no claim of breach of contract in not making a will “devising and bequeathing” to her the property, as such claim would be at law and against the administrator, and the measure of recovery in such case would be the value of the services at the time they were rendered. 3 Weekly Raw Bulletin, 994; Needles v. Needles, 7 Ohio St., 443.
    
      James Olds, and George W. Fluckey, for defendant in ■error. ,
    Could not A. Cordelia Powell contract to pay her sister for the service she performed in specific property? She ■certainly could. Is it not natural that she should agree to do what was done in this case, give all her property to her ■sister, not only for the services she might perform, but also for her companionship, and what her sister might lose in giving up her plans for the future, in order to care for her in her then condition, needing. some one to watch over and care for her. Shall it be said that one can agree to pay another for doing some particular thing with a specific article, and when the service is performed, the one rendering the •service be deprived of that for which they labored because the other party has died without having delivered the possession, although the services were fully performed at her ■death, and the title of the property in her at her death? Certainly no court will entertain such a proposition as that. And we claim that it is not necessary in order to give effect to the contract made by the parties, 'that they should clothe the same in legal and technical language, if they use such words as will enable the • court to gather their intention. Sutton v. Hayden, 62 Mo., 101; Wright as Trustee, etc. v. Tinsley et al., 30 Mo., 389; Gupton v. Gupton, 47 Mo., 37; Brinker v. Brinker, 7 Barr, 55.
    Counsel for plaintiffs rely on the case of Phipps v. Hope et al., 16 Ohio St., 586, as settling the main question in this-case. That case was hot one where there was an agreement to pay in specific property, as in this case.
    Counsel for plaintiffs say that the contract cannot be enforced for the reason that no possession was taken of the property under the contract. We submit that possession is-not necessary, as the contract was in writing. But all the possession was taken that could have been under the contract at the death of A. Cordelia Powell.
    We claim that A. Cordelia Powell having made the contract with her sister, and having had it reduced to writing, and having signed and delivered the written agreement to her sister, Mary E. Darling, several years before her death, and the sister having performed all the conditions of said contract to be performed bn her part, that she is entitled to-have the same specifically enforced, and in support of our position cite the court to the case of Bolman v. Overall, 6 Am. Probate Reports, 59; Schouler on Wills, sections 452, 453, and 454; 3 Parsons on Contracts, 406, star paging.
    It is insisted by counsel for plaintiffs that the defendant* Mary E. Darling, must fail, lor the reason that no possession was taken during the life-time of A. Cordelia Powell. We insist, in addition to what we have heretofore said, that the rule claimed by counsel does' not apply in this case as the contract was in writing; and we think that the authorities go farther and would sustain our claim even if no writing had been executed, where the consideration was services that could not be measured by a pecuniary standard, as it was in the case at bar. Rhodes v. Rhodes, 3 Sandford’s Chancery Reports, 279; Grupton et ux. v. Gupton et al.., 47 Mo., 37; Sharkey v. McDermott, 60 Am. Reports, 270.
   Minshall, J.

The ground on which objection is made to the relief granted the defendant in error is, that the paper on which she founds her claim is in the nature of a testamentary disposition, and void for want of - conformity to the statute of wills. It is true that the party who signed it merely covenants that if her sister should stay with her as long as she requires, she would “give and bequeath” to her all the real and personal property of which she should die seized. But it is of the essence of a will that its dispositions should be in the nature of gifts. Schouler on Wills §451. 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 instru.ment 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. There seems to be little difference in the cases on this point. It is said by the author just cited, in his work on Wills, §454, “The principle, which in the present day appears to be asserted, is, that where one contracts upon a valuable consideration to execute a will after a certain tenor, the agreement is binding upon his death, and may be specifically enforced against his representatives and his estate.” Parsons, in his work on Contracts, 3 vol. 406, says “It is obvious that an agreement to make a certain disposition of property by last will, is one which, strictly speaking, is net capable of a specific execution,—not in the party’s life-time, because any testamentary instrument is by its nature revocable; and after his death it is no longer possible to make his last will. Yet it has been held to be within the jurisdiction of equity to do what is equivalent to a specific performance of such an agreement, by requiring those upon whom the legal title has descended to convey the property in accordance with its terms.” See, also, Waterman on Specific Performance, §41. Johnson v. Hubbell, 10 N. J. Eq. 332; Brinkersr. Brinker, 7 Barr, 53; Bolman v. Overall, 80 Ala. 451; Sutton v. Hayden, 62 Mo. 101; Parsell v. Stryker, 41 N. Y. 480. It is said by the author of a note to Johnson v. Hubbell, 66 Am. Dec. 784, that, “It is not only in harmony with sound principle that a person may make a valid agreement binding himself to dispose of his property, in a particular way, by last will and testament, but it is supported by an almost unbroken current of authorities, both English and American.”

As a contract affecting real estate, the agreement of Miss Powell, being signed by her, the party to be charged, conformed to the statute of frauds; and having been accepted and fully performed by her sister, the legal title descended to the heirs of Miss Powell in trust for her sister, and she is entitled to have it conveyed to her in performance of the contract made by the deceased.

The caséis not like that of Phipps v. Hope, 16 Ohio St. 586. In that case the indorsments on the envelope containing the mortgage directed to be given Phipps, was held not good ás a testamentary gift, because not executed in conformity to the statute of wills, nor as. a gift inter vivos or causa mortis, because there was no delivery. But it was not held, that the promise of Joseph Hope, that if the plaintiff “would work for him, and take an interest in his affairs, as if they were his own, he would finally make or leave him well off, and would do more for him than he would for any one else,»’ was invalid and not capable of being enforced against his-estate. The ground of the decision is, that no breach of the contract is alleged. The court says, “For aught that appears in the petition, the intestate may have left the plaintiff well off, and may have done better for him than he did for any one else.” If a breach had been alleged, there is no question but that, from the. reasoning of the court, the demurrer to the petition would have been directed to be overruled.

It is suggested that the proper remedy would have been an action for the value of the services. No reason can be given for this that would not apply to any contract for a conveyance of land. Besides the authorities are uniform in saying that specific performance is the proper remedy. The consideration that moved Miss Powell to make the promise was a desire for the society of her sister. The value of the society of one sister to another is incapable of measurement in money. Rhodes v. Rhodes, 3 Sandf. Chan. 279. Hence the only appropriate remedy is the one that has been awarded.

Judgment affirmed.  