
    Moore, Appellee, v. Curtzweiler, Admx., Appellant.
    (No. 34529
    Decided May 2, 1956.)
    
      
      Mr. Otto W. Hess and Mr. George A. MeeMson, for appellee.
    
      Messrs. Witt & Witt and Messrs. Williamson & FunkJiouser, for appellant.
   Matthias, J.

The sole issue before this court is whether the petition, construed most strongly in favor of the plaintiff, states facts which show a cause of action.

This is so because the defendant demurred “to the petition of the plaintiff * * * and for grounds therefor says that said petition does not state facts which show a cause of action,” and because Section 2309.09, Revised Code, provides:

“The demurrer shall specify the grounds of objection to the petition. Unless it does so, it shall be regarded as objecting only that the court has no jurisdiction of the subject of the action, or that the petition does not state facts which show a cause of action.”

Defendant argues that the only construction which can possibly be derived from the petition is that plaintiff and deceased entered into an oral agreement to make a will, and that such a contract is not enforceable by virtue of Section 10504-3a, General Code (Section 2107.04, Revised Code), which stipulates :

“No agreement to make a will or to make a devise or bequest by will shall be enforceable unless such agreement is in writing, signed by the party making it or by some other person by his express direction, in which latter case the instrument must be subscribed by two or more competent witnesses who heard such party acknowledge that it was so signed by his direction. ’ ’

Such contention, however sound the principle of law attendant thereto, is without merit with respect to the instant case, for we perceive that a fair construction of the petition indicates not that plaintiff and decedent entered into a contract to make a will, but that “on or about the first day of November 1935” plaintiff and decedent entered into a contract for the payment of money, one of the terms of which is that upon performance by the plaintiff payment would be made at the death of the decedent. And, although the facts are entirely dependent upon proof, it may be inferred that the petition assumes completion of the contract and a concurrent obligation in praesenti upon the decedent for the payment of a sum of money, prior to his death, although such payment was deferred, according to the terms of the agreement, until his death.

The Supreme Court of California, considering a similar fact situation in Patterson v. Chapman, 179 Cal., 203, 176 P., 37, 2 A. L. R., 1467, stated, as follows, the rule which has the support of preponderant authority:

“If the instrument created a debitum in praesenti, an obligation existing in the lifetime of the obligor, the fact that it is not to be discharged until after * * * (the obligor’s) death renders it none the less enforceable as a demand against his estate.” See, also, Estate of Howe, 31 Cal. (2d), 395, 189 P. (2d), 5, 1 A. L. R. (2d), 1171; and Ohio Wesleyan Female College v. Higgens, Exr., 16 Ohio St., 20.

It is to be noted, however, that the authorities above cited and others read by this court uniformly deal with instruments creating the obligation in praesenti which is to be discharged at or after the death of the obligor, whereas the petition in question specifically sets out as the basis for this cause a “verbal agreement. ’ ’

In our opinion, however, the fact that the contract sued upon is an oral rather than a written agreement is immaterial to the question at hand, i. e., whether a cause of action is stated in the plaintiff’s petition.

The petition alleges that “payment was to be made to her for such services at the time of his [decedent’s] death out of his estate,” and this must be considered admitted for the purpose of the demurrer.

The cases dealing with the question turn not so much upon the fact that the contract alleged is in writing, but upon the validity of the contract and its contractual as opposed to its testamentary nature.

If the plaintiff in this action is able to prove that she entered into and fulfilled her part of an oral contract for the payment of money entered into with decedent prior to his death, which imposed upon decedent a “debitum in praesenti,” a present obligation to pay ‘ ‘ at the time of his death, ’ ’ then we see no reason why she should be less able to collect such obligation than a person in similar circumstances who happens to hold a written contract or a promissory note, the determining factor being the validity and terms of the agreement rather than its form.

If it be said that such a ruling opens the doors of the courts to possible fraudulent claims against the estates of deceased persons, we need only to refer to Section 2317.03, Revised Code, and the case of Lemunyon v. Newcomb, Exr., 120 Ohio St., 55, 165 N. E., 533, to see that adequate safeguards have been supplied to forestall such a threat.

Suffice it to say here that in an action against the executor or administrator of a decedent’s estate to subject the estate to the payment of a claim, where the petition alleges that there is an oral contract between the plaintiff: and the decedent, and where the contract as alleged indicates that it created a monetary obligation of the decedent existing in his lifetime, although such obligation was not, by the terms of the contract, to be discharged until at or after the death of the decedent, such petition does not allege a contract to make a will, within the meaning of Section 10504-3a, General Code (Section 2107.04, Revised Code), and states facts sufficient to show a cause of action.

The Court of Appeals having so found, its judgment is affirmed.

Judgment affirmed.

Weygandt, C. J., Hart, Zimmerman, Stewart, Bell and Taet, JJ., concur.

Stewart, J.,

concurring. I concur in the foregoing syllabus and opinion as I believe that both enunciate sound law, but I have a somewhat fearful apprehension as to the result of the decision.

Unless and until the General Assembly acts, a person may present a claim against the estate of a decedent, alleging an oral contract for the payment of services which have ceased many years before the lips of the one with whom the alleged contract was made have been closed in death, and may stop any running of the statute of limitations upon such claim by alleging that it was not to be paid until after the death of the one with whom it was made.

Without in any manner questioning the honesty or integrity of any person in the present case, it seems almost incredible that there should have been an oral contract for services performed for one approximately 17 years before his death, with an oral promise of payment out of the estate of the promissor at the time of his death. The statute of limitations, of course, would long since have run against any claim for services upon a quantum meruit basis, but under the allegations of the petition the statute does not begin to run until the promissor has died.

The General Assembly enacted Section 10504-3a, General Code (Section 2107.04, Revised Code), which made unenforceable any agreement to make a will, unless the agreement is in writing, and this court has decided that, where an oral agreement is made to make a devise or bequest by will to one who has performed services or given other valuable consideration, such agreement is unenforceable. Snyder v. Warde, Admx., 151 Ohio St., 426, 86 N. E. (2d), 489; Sherman, a Minor, v. Johnson, 159 Ohio St., 209, 112 N. E. (2d), 326.

Although I have an abiding faith in the honesty and integrity of an overwhelming majority of the people, I do not shut my eyes to the possibility that there are some scalawags even in Ohio, and no matter how long a period has elapsed since services have been performed for which a claim is made, a claim may be presented for such services against an estate upon an alleged oral agreement that there was a promise to pay for them, at death, by the one for whom the services were performed.

It is true that Section 11495, General Code, now Section 2317.03, Revised Code (the dead man’s statute), is some safeguard against fraudulent claims, but if one is bent upon securing a fraudulent gain it would probably not be difficult to enlist the aid of a confederate, and, as we have said, the one who could defend against such a conspiracy would have his lips sealed in death.

I am fearful that unless there is legislative relief, our present decision, sound as I believe it to be legally, will open to the unscrupulous a vast vista of privileged pillage.  