WRITTEN CONTRACTUAL AGREEMENT TO MAKE A DEVISE.

Court of Appeals for Carroll County.

#### Ralston v. McBurney.

Decided, April 5, 1917.

*Contracts—Promise to Devise Specific Property—Based on a 'Valuable Consideration—May he Enforced, When—Devise so Made, hut Revolted in a Subsequent Will—Treated as a Contract and Title Decreed to the Disappointed Devisee.*

1. A promise, for a valuable consideration, to make a will, devising specific real estate to a certain person, is valid if evidenced as required by the statute of frauds, and upon failure to perform the promise, specific performance may be had against any one having the title thereto except an innocent purchaser for value.

*3112. A will devising real estate, executed and delivered to tbe devisee in pursuance of a parol agreement by wbicb tbe testator for a valuable consideration agreed to devise that real estate to tbe devisee, can not be revolted by a subsequent will so as to escape tbe obligation, but may be enforced as a contract.

*W. L. Handley*and *U. C. DeFord,*for plaintiff.

*McDonald & Oglebee,*contra.

Pollock, J.

This case comes into this court on appeal from the court of common pleas of this county, and was submitted to the court on the pleadings and the evidence.

The action was begun in the court of common pleas by plaintiff against Elizabeth McBurney and T. C. and Levi Blacklege to prevent the defendants from disposing of the real estate described in the petition, alleging that there was an agreement between Elizabeth McBurney and Levi Ralston by which, for a valuable consideration, she agreed to convey this property to Ralston by her will; that subsequently Miss McBurney, in pursuance of this agreement, made her will and delivered' it to Ralston, devising to him this real estate; that after the making of this will, Miss McBurney conveyed the land described in the petition by deed of trust to her co-defendants, T. C. and Levi Blacklege, and made a second will devising this property to other parties and revoking the prior will, and that Elizabeth McBurney so conveyed this property by deed of trust and made a second will for the purposes of fraudulently avoiding her contract and defeating' his right to the property under the agreement.

Before the trial of the action in the court below, Elizabeth McBurney died and her co-defendants were appointed executors of the second will.

Plaintiff by amended petition then prayed that the property devised to him by the first will be decreed to him in accordance with the agreement made between him and Miss McBurney.

The answer of the defendants, so far as we are now concerned, is a denial of the material allegations of the petition.

*312Elizabeth McBurney’s deposition was taken prior to her death and admitted in evidence and plaintiff Ralston testified at the trial. There is a sharp conflict in the testimony in regard to the agreement for the purchase and conveyance of the property described in the petition. We will not set out or attempt to discuss the testiimony, but only the facts relating to the transaction as we have found from the testimony.

Elizabeth McBurney was a maiden lady without any near relatives. For some time prior to 1898 Miss McBurney had been taking care of a man and his wife by the name of Patterson. Mr. Patterson died in that year, and by his will he devised property to Elizabeth McBurney of about the amount of $2,500. Near the time of the death of Patterson, Ralston commenced to look after the business affairs of Miss McBurney. Mrs. Patterson was an invalid requiring constant care and, after the death of Mr. Patterson, Elizabeth McBurney continued to take care of Mrs. Patterson until about 1899. After the death of Mr. Patterson, Thomas Donaldson had been appointed guardian of Mrs. Patterson, and at the time above referred to trouble arose between the guardian and Miss McBurney about the care of Mrs. Patterson and her compensation therefor. A settlement was arrived at between the guardian and Mss McBurney, Ralston, the plaintiff, representing Miss McBurney. In that settlement Miss McBurney was paid, through Mr. Ralston, $100 in money and a note given by the guardian for $443. After this settlement Miss McBurney gave Ralston $500 out of the amount received in that settlement for the services he had then rendered her. Ms. Patterson died in January, 1899. Soon after that, Mr. Donaldson, representing the heirs of Mrs. Patterson, offered the property described in the petition at public sale. Prior to the sale Elizabeth McBurney and Ralston agreed between themselves to purchase this property jointly, if it could be done for not over $1,600. At this sale it was bid off by Ralston at $1,500.

After the time that this property was bid off by Ralston and before the deed was made, Ralston and Miss McBurney entered *313into a further agreement in regard to the property, by which it was agreed that the property should be conveyed by the heirs of Mrs. Patterson to Miss MlcBurney, and that Ralston was to apply the $500 already received from Miss MeBurney for services, to the payment of the purchase money, and that Miss MeBurney was to furnish $775, Ralston paying $25 more; that $200 should be borrowed by Ralston, and that Ralston was to care for the property during the lifetime of Miss MeBurney and to attend to any other business that she might desire, and after paying the $200 borrowed to complete the purchase money from the proceeds of the property, Miss MeBurney was then to have the entire use of the property during her lifetime, and in consideration therefor Miss MeBurney agreed to make a will devising this property to Ralston at her death. About the first of April of that year Ralston, with the money thus furnished, paid the purchase money and caused the property to be conveyed by the heirs of Mrs. Patterson to Elizabeth MeBurney. In April, 1901, Miss MeBurney made a will devising this property to .Ralston in accordance with her agreement. After she had executed this will she handed it back to him with the remark, “It is of more interest to you than to me.” Some time after the making of this will Miss MeBurney conveyed the property described in the petition to her co-defendants in trust, and also executed a second will revoking the former will and devising the property described in the petition to others than Ralston. Ralston fully performed his agreement in so far as Miss MeBurney would permit him to do so.

From these facts Ralston is not entitled to have a judgment decreeing this property to him upon the verbal arrangement which was made between him and Miss MeBurney, that the title should be placed in her name.and then that she should will it back to him. This arrangement was not engrafting a trust upon this property in the hands of Miss MeBurney, but it was making a verbal agreement for the conveyance of property to Ralston by the will of Miss MeBurney. Sueh a verbal agreement can not be enforced in this state, although the plaintiff has fully *314performed his part of the agreement. *Howard*v. *Brown, 37*O. S., 400; *Carbill*v. *Mark,*38 O. S., 331; *Shahan*v. *Swan,*48 O. S., 25.

It next remains to be determined whether the plaintiff is entitled to relief asked by reason of Miss McBurney having made a will devising this property to Ralston, in pursuance of their verbal contract, and delivering the will to Ralston, which was afterwards revoked by a subsequent will of Miss McBurney.

The provisions of the will which plaintiff claims carries into effect the contract that they made read as follows:

“I give and devise to Levi Ralston, of Mechanicstown, Ohio, the thirty-five acres of land, and appurtenances thereunto belonging and known as the William P. McClain land, and lying and being in the northeast corner of the southwest quarter of section twenty-nine in Fox township, Carroll county, Ohio, I give this to him absolutely as his own forever in consideration of his kind attention in looking after, taking care of and attending to my business affairs during my lifetime.”

While the paper writing executed by Miss McBurney as her will devising the property to Ralston in pursuance of their verbal agreement can not be probated as her last will, the question arises whether this provision of the will may be used in equity to specifically enforce the contract between the parties on the ground that it is written evidence of the agreement, which complies with the statute of frauds.

A verbal contract existed between these parties by which Miss McBurney agreed to devise this land to Ralston, but before a court of equity could enforce this contract, proof thereof is required by written memorandum signed by Miss McBurney. The writing is not the contract but the evidence by which it may be proven.

Williams, J., in the case of *Heaton*v. *Eldridge et al,*56 O. S., 87, says at page 101:

“The memorandum, which is merely the evidence of the contract, may be made and signed after the completion of the agreement, and even a letter from the party to be charged, re*315citing thé terms of the agreement, is sufficient to satisfy the requirements of the statute; but it can not be said that the letter constitutes the agreement; that was made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement.”

The paper writing in this case is in form a will, but it was made for a valuable consideration, in pursuance of their prior verbal agreement, signed by the party to be charged therewith and delivered to Ealston.

Our attention has been called to the case of *Bolman*v. *Overall,*80 Ala., 451 (60th American Reports, 107). The syllabus of this case reads as follows:

*“A*will giving property to one in consideration of personal services, rendered and to be rendered to the testator, is valid and may be enforced as a contract after the testator’s death.”

The facts as set out in the opinion in this case are very similar to the facts in the case that we are now considering. It seems to be a well considered case and sustains the principle that where a party has entered into a verbal agreement that in consideration of services rendered or to be rendered a party agrees to make their will devising certain property to the other party to the contract, and when the verbal arrangement is completed by the making of a will, that it can not afterwards be revoked by the testator, but may be enforced as a contract.

In the case of *Lowe*v. *Bryant,*30 Ga., 528 (76th American Decisions, 673), where, by an ante-nuptial verbal agreement, the husband had agreed to afterwards make a will devising to his wife and her children all the property which he might receive from the wife. This became an executed and enforcible agreement, by the execution, after the marriage, of the will, and the husband was excluded from afterwards making a different disposition of this property.

The same principle has been announced in the following cases: *Anding*v. *Davis,*77th Am. Dec., 658; *Naylor*v. *Shelton,*143rd *316S. W., 117-121; *Baker*v. *Syfritt,*125 N. W., 998; *Carmichael*v. *Carmichael,*1st L. R. A., 586; *Maddox*v. *Rowe,*68th Am. Dec., 535; *Schouler on Wills,*Section 542.

A person may for a valuable consideration bind himself by contract to make a particular disposition of their real estate by will. *Johnson*v. *Hubbard,*10 N. J. Eq., 332.

If the contract is evidenced as required by the statute of frauds, equity will decree specific performance of the contract against the heirs or devisees of the contracting party.

'The Supreme Court of this state in *Emery*v. *Darling,*50 O. S., 160, held that specific performance should be decreed under a contract in writing, whereby one sister agreed to give and bequeath to another sister all her real estate and personal property of which she might die siezed or possessed in consideration that 'her sister should .stay with her as long as she might live.

In the case at bar the contract to compensate Ralston by devising the property to him was verbal, but the contract was after-wards carried into effect so far as the parties could carry such a contract into effect by Miss McBurney making her will containing a devise as provided for in such verbal contract, and delivering the will to Ralston. This will can not now he probated as a will of Miss McBurney for the reason that it is not her last will and testament, but we think it should be enforced as a contract made upon a valuable consideration. This is not enforcing a verbal agreement for the conveyance of this property, but it is treating this paper writing, purporting to be a will, as a written contractual agreement between these parties. The devise refers to the fact that it is made “in consideration for his (Ralston’s) kind attention in looking after and taking care of and attending to my business affairs throughout my lifetime.”

Minshall, J., in the opinion in *Emery*v. *Darling, supra,*says:

‘ ‘ But it is of the essence of a will that its dispositions should be in the nature of gifts. Schouler on Wills, Section 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 *317the nature of a contract, and its validity as an instrument 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.”

The devise in the paper writing executed by Miss McBurney was not made as a gift but to carry out an obligation previously entered into by her, and it conforms to all the legal requirements to make a valid contract for the conveyance of real estate.

“But in equity a will which is once formally made in conformity to some agreement may be upheld as originally executed on the strength of some valuable consideration therein interposed, the effect of which might possibly be to make the will practically irrevocable, unless some matter of form, some technical arbitrary rule springing out of the statute, or the necessary form or construction of the will should defeat what the parties had mutually intended. There is nothing unlawful in such a compact, nothing contrary to good morals. ’ ’ Sehouler on Wills, Section 454.

It can not be said that enforcing in equity a contract contained in this devise violates the provision of the statute of frauds. It is in writing, executed, and witnessed by the party to be charged, and delivered. When one party has fully performed a verbal agreement by which the other agreed to compensate him for the consideration received by executing a 'will devising property to the other and that agreement was carried into effect by the party making the will and delivering it, its provisions become irrevocable and enforcible against the devisees in a subsequent will or the heirs of the party.

Judgment in favor of the plaintiff decreeing the property described in the petition to him.

Metcalfe, J., and Farr, J., concur.