#### Hannon and others, Appellants, vs. Scanlon, Respondent.

*September 18*

October *6, 1914.*

*Statute of frauds: Contract to convey land: Uncertainty in description: Parol evidence: Equity: Specific performance.*

1. rnder the statute of frauds (sec. 2304, Stats.), all the essential terms of a contract for the conveyance of land must he in writing, including a description of the land to he conveyed; and such an essential element cannot he supplied hy parol evidence.

2. A contract, made by stipulation between the contestants of a will and the sole legatee named therein, hy which such legatee agreed to convey one of two forty-acre tracts of land to each of the two heirs of the testator, is so indefinite and uncertain that it cannot he specifically enforced, where it cannot he determined from the stipulation, with the aid of any writings referred to therein or which could he read therewith, which of the two forties was to he conveyed to either heir.

3. It having been expressly stipulated that one forty he conveyed to each heir, equity will not make a new contract hy compelling conveyance of both forties to the two heirs in common.

Appeal from an order of the circuit court for Marinette county: W. B. QuiNLAN, Circuit Judge.

*Affirmed.*

This is an appeal from an order sustaining a demurrer to the complaint. The complaint alleges that on May 15, 1912, one Lucy Scanlon died leaving surviving her two minor children, *Helen Ilannon Scanlon*and *George Hannon Scanlon;*a husband, *Joseph Scanlon;*an aunt, *Sarah Hannon;*and an uncle, *George Hannon;*that said Lucy Scanlon died possessed of personal property and seised of a large amount of realty, among which were three forties, 120 acres, one forty being formerly the homestead of one Henry Donnelly; that on June 4, 1912, an alleged will was filed in the office of the county judge of Marinette county purporting to be a will of Lucy Scanlon, which will devised and bequeathed all the real and personal property owned by said Lucy Scanlon to said *Joseph Scanlon;*that a day was set for the hearing of proofs of said will; that *George Hannon*and *Sarah Hannon*
      *358having good reason to believe that said will was not executed according to law, that said Lucy Scanlon had not sufficient mental capacity to make a will, and that the execution was procured by undue influence, filed objections' to' the allowance of said will; that on said hearing the following stipulation was made in open court:

“State of Wisconsin,

“In County Court, Marinette County.

“In the Matter of the Estate of Lucy Scanlon, Deceased.

“Kaftan & Reynolds appearing for *Joseph Scanlon,*legatee under the will of Lucy Scanlon, deceased.

“J. 0. Morgan, guardian *ad litem*of *Helen Hamxon Scan-lon*and *George Joseph Scanlon,*minor heirs of said Lucy Scanlon, deceased.

“Martin, Martin & Martin appearing for *George Hannon*and *Sarah Hannon,*contestants of the will of Lucy Scanlon, deceased.

“It is hereby stipulated by and between *Joseph Scanlon,*legatee of the will of Lucy Scanlon, deceased, and *George Hannon*and *Sarah Hannon,*contestants of said will, each by their respective attorneys, and by and with the consent of the guardian *ad litem,*and in person, in open court, that the said contestants hereby withdraw their objections to the allowance of said will, for and in consideration of the said *Joseph Scanlon,*legatee herein named, and on the condition that he, the said *Joseph Scanlon,*convey by proper conveyance to each of the said minor children one of the forty acres of land heretofore owned by Henry Donnelly, deceased, which said property is devised and bequeathed by the will of said Lucy Scanlon, deceased, to the said *J oseph Scanlon,*as sole heir of Henry Donnelly, deceased, whose said estate is now in process of probate in this court, and for and in consideration of the said *Joseph Scanlon*agreeing to pay the debts against the estate of the said Lucy Scanlon, deceased.

“And it is further agreed that the said *Joseph Scanlon*shall receive the entire estate of the said Lucy Scanlon, deceased, except the forty acres herein provided to be conveyed to each of the said minor children, which said two forty-acre tracts shall be conveyed to the said minor children free and clear from any and all claims which may be made against the estate of Lucy Scanlon, deceased. The said *J oseph Scanlon*
      *359shall retain and have for bimself the forty-acre tract constituting the homestead of Henry Donnelly, deceased, and upon which the buildings are located. The said *Joseph Scanlon*shall have two mowers, one hay rake, two drags, and three plows, which property is part of the estate of Henry Donnelly, deceased, and located in the township of Grover, at the prices named in the inventory, now on file in the county court of Marinette county, and also a certain quantity of lumber now located in the village of Coleman, which is also a part of the estate of the said Henry Donnelly, deceased. Each party to pay its own costs of this contest.

“It is hereby further stipulated by and between the parties hereto that the said *Joseph Scanlon*will pay out of the rent or income of the estate of the said Henry Donnelly, deceased, the sum of one hundred dollars per annum, so long as the children are taken care of or in the custody of *Mr.*and *Mrs. George Hannon*

That in reliance upon said agreement the plaintiffs withdrew their objections and consented to the probate of said will, and the same was proved and allowed on the 12th day of July, 1932; that the plaintiffs have duly performed all the conditions of said agreement on their part, but the defendant refuses to convey the forties mentioned, although demand has been made upon him, and indicates a purpose of disposing of said forties to third parties and irreparably injuring plaintiffs ; that by reason thereof plaintiffs have no adequate remedy at laAV. Judgment is demanded that the defendant be required to specifically perform said agreement and to execute and deliver a conveyance of said forties to said children in the manner and form provided in said agreement, and for general relief.

For the appellants there was a brief by Marlin, *Marlin & Martin*and *G. F.*Clifford, and oral argument by *Mr. Clifford.*

*Robert A. Kaflcm,*for the respondent.

IveewiN, J.

The stipulation upon which the cause of action rests was made in open court and was not signed by the parties otherwise than as their names appear therein as writ*360ten and entered in the minutes by the reporter. It is insisted by appellants that there was a sufficient signing of the stipulation to satisfy the statute of frauds by the entry thereof in open court and consent to such entry by all parties. And it is further contended by appellant? that, whether there was a sufficient signing or not, there was estoppel *in pais*and of record arising- from the acts of the parties in open court with the sanction of the court, and proceedings in court upon the faith of the stipulation, and that the stipulation was sufficiently definite in the description of the property.

On the part of respondent it is claimed that the stipulation is void as against public policy under the rule laid down in *Will*of *Dardis,*135 Wis. 457, 115 N. W. 332, and *Will of Rice,*150 Wis. 401, 136 N. W. 956, 137 N. W. 778; that the stipulation is void under the statute of frauds; that there is no estoppel *in pais*or of record; and further that the stipulation is too indefinite and uncertain upon which to found an action, therefore no cause of action is stated in the complaint.

We shall only consider the last proposition, namely, whether the stipulation is sufficiently definite and certain to form a basis for an action upon the facts alleged in the complaint. If this proposition be resolved against the appellants it is decisive of the case. It is argued that there is no description of the two forty-acre tracts which were to be deeded to the two children. But passing this question, it is clear that it cannot be determined from the stipulation, together with any writings referred to therein or which could be read therewith, which forty was to be deeded to either child.

The stipulation provides “that he, the said *Joseph Scan-*lon, convey by proper conveyance to each of the said minor children one of the forty acres of land heretofore owned by iíenry Donnelly, deceased, which said property is devised and bequeathed by the will of said Lucy Scanlon, deceased, to the said *Joseph Scanlon.*. . .” There is nothing in the *361stipulation identifying the forty which shall be deeded to either child. The alleged contract is one for the conveyance of real estate, and all its essential terms must be in writing. Among other essential terms which must be specified in a contract for the conveyance of real estate is a description of the property to be conveyed. Here the contract is hopelessly uncertain as to which forty should be conveyed to each party. The court cannot supply this important part of the contract, because to do so would be to make and enforce a contract for the parties which they themselves never made. Nor can parol evidence bo allowed to supply an essential element of a contract to convey land which the statute requires to be in writing.

It is argued by appellants that the court should enforce specific performance so far as the contract is certain and that it would be doing justice to enforce conveyance of the two forties to the two infants in common. The trouble with this argument is that there is no agreement, either express or implied, that the two forties be conveyed in common. On the contrary it is expressly provided that one forty be conveyed to each infant. To compel conveyance of the two forties in common would be to enforce performance of a contract which the parties never made. This courts have no power to do.

It follows that the order appealed from must be affirmed.

*By the Gourt.*— The order appealed from is affirmed.