Kelley v. Thompson, 181 Mass. 122, 124. Runyan v. Van Iderstine, 230 Mass. 428. The plaintiffs contend, however, that, although the statute operates on an oral promise to make a will, it does not affect an oral promise not to revoke a will.
G.L. (Ter. Ed.) c. 259, § 5. Runyan v. Van Iderstine, 230 Mass. 428. Downey v. Union Trust Co. 312 Mass. 405, 410-411. But under the second count (account annexed) the plaintiff could recover.
G.L. (Ter. Ed.) c. 259, § 5. Runyan v. Van Iderstine, 230 Mass. 428. Dixon v. Lamson, 242 Mass. 129. But one who has rendered valuable services pursuant to an oral agreement, which cannot be enforced on account of the statute of frauds, may recover on a count for quantum meruit, and this remedy is allowed not as a means of avoiding indirectly the statute but in order to prevent the statute from being employed as an instrument of fraud by compelling the defendant to pay for what he has received by virtue of the express contract. Kelley v. Thompson, 181 Mass. 122. Cromwell v. Norton, 193 Mass. 291. Donovan v. Walsh, 238 Mass. 356. Raine v. Shea, 259 Mass. 412. Rizzo v. Cunningham, 303 Mass. 16.
The suit in equity, setting forth the agreement and performance by the plaintiff and seeking to restrain the heirs at law from contesting the validity of the will on the ground of the subsequent marriage, sets out no ground for relief in equity. An agreement to make a will must be in writing in order to be valid. R. L. c. 74, § 6. The agreement in the case at bar was not in writing and hence no action can be maintained on it. Emery v. Burbank, 163 Mass. 326. Runyan v. Van Iderstine, 230 Mass. 428. An agreement in consideration of marriage also is unenforceable unless in writing.