Summary
In Snyder, a housekeeper had sought to enforce an oral agreement to make a will against the estate of her deceased former employer.
Summary of this case from Williams v. OrmsbyOpinion
No. 31500
Decided May 25, 1949.
Wills — Oral contract to make will, unenforcible — Section 10504-3a, General Code — Statute applies notwithstanding consideration paid in pecuniarily compensable services — Housekeeping, nursing, business assistance and incidental acts, compensable in money — Such services compensable by pecuniary standards, although calculation of value complicated — Character of services as to money compensability not changed — By employer's kindness, generosity and friendship toward employee and her children — Ordinary services to be noncompensable from pecuniary standpoint — Must involve detriment or sacrifice, motivated by sentiment.
1. An oral contract to make a will is unenforcible by virtue of Section 10504-3 a, General Code, and payment of consideration by one in whose favor the contract is made, whether that payment consists of money or pecuniarily compensable services, will not remove such a contract from the operation of the section.
2. Keeping house and cooking, practical nursing care, secretarial work, assistance in business affairs and management, chauffeuring, and other acts incidental to the above constitute such work as is compensable in money, either upon a contract or quantum meruit basis, and the fact that one person performs all such services for another, and thereby makes the calculation of the value of such services more complicated, does not change the character of the services so as to make them noncompensable by pecuniary standards.
3. Kindness, generosity and the development of friendship on the part of an employer toward his employee and the family of such employee do not change the character of the services of the employee as to their compensability in money.
4. Ordinary services to be noncompensable from a pecuniary standpoint, generally, must be such as involve a detriment or sacrifice upon the part of the one rendering them, motivated by sentiment rather than expectation of payment.
APPEAL from the Court of Appeals for Portage county.
On April 3, 1946, Wanda M. Snyder, who will hereinafter be designated plaintiff, instituted an action in the Common Pleas Court of Portage county against Blanche H. Warde, administratrix of the estate of Frank H. Harper, deceased, hereinafter designated administratrix, and all the heirs at law of Frank H. Harper. Frank H. Harper will hereinafter be designated as Harper.
Plaintiff alleged in her petition that on or about January 1, 1944, she entered into an agreement with Harper by the terms of which Harper was to bequeath and devise to plaintiff one-half of his estate; that plaintiff agreed to be associated with Harper in his business and household affairs, to cook and keep house for him, to be his companion, to give him such personal attention and practical nursing care as he might require, to act as his secretary when necessary, to aid and assist him whenever possible in his business affairs, to handle any emergencies arising during his absence, to assist him in the management of personnel, to act as his chauffeur whenever he desired, and to otherwise occupy a position of helpfulness.
Plaintiff alleged further that the agreement between her and Harper included an obligation on the part of the latter to pay her a salary of $40 per month, and to furnish residence and board for herself and her two children during their minority, until the decease of Harper, which obligation he faithfully observed.
Plaintiff alleged further that she kept and observed all her obligations, but that Harper died on November 25, 1945, intestate, without having devised and bequeathed one-half of his estate to plaintiff; that Harper died unmarried and without issue; and that he left real estate situated in Portage county.
Plaintiff alleged further that, on January 28, 1946, she presented to administratrix a verified claim of her cause of action, and that administratrix rejected the claim on February 21, 1946.
Plaintiff prayed for a decree in the nature of specific performance against the defendants, requiring them to convey, transfer and distribute to plaintiff one-half of the estate of Harper, prayed that the court impress a trust on one-half of the estate in favor of plaintiff and so frame its decree that one-half of the estate will be transferred and distributed to plaintiff on administration thereof, and asked for such other relief to which plaintiff may be entitled.
After a demurrer to plaintiff's petition had been overruled, an answer was filed admitting the appointment of the administratrix, that all the other defendants named constitute all the heirs at law and next of kin of Harper, and that he died intestate, unmarried and without issue.
The answer set up four defenses:
1. A general denial.
2. If there was an agreement, as plaintiff alleged, such agreement was contrary to the statute of frauds, being, specifically, Section 8620, General Code.
3. Any such agreement, if it existed, was contrary to Section 10504-3 a, General Code.
4. Plaintiff, having presented to administratrix a verified claim, thereby elected for her remedy an action for money only and was estopped from seeking specific performance.
Plaintiff filed a reply in which she admitted that she had filed with administratrix a verified claim, but denied that she had made any election and further denied generally all new matter in the answer except the portion admitted by her.
The verified claim stated that on or about January 1, 1944, Harper entered into an agreement with plaintiff to bequeath and devise to plaintiff one-half of his estate, and plaintiff agreed to be associated with Harper in his business affairs, to assist in managing, promoting and developing his business, property and financial interests, to give Harper such personal care and attention as he required, to be his companion, to cook and keep house for him and to otherwise occupy a position of helpfulness.
The affidavit stated further that plaintiff performed on her part the terms of the agreement, and that she believed Harper duly executed a last will in conformity to such agreement, but that such will has not been reported found.
The affidavit stated further that plaintiff is entitled to the conveyance and transfer to her of one-half of the net assets of the estate of Harper, or, in the alternative, to a sum of money representing one-half of the net value of the estate, such one-half of the net value being $150,000.
Although there was a dispute in the testimony concerning some of the facts involved in the present controversy, those facts which are undisputed and the testimony most favorable to plaintiff show the following situation:
In January 1942, plaintiff's husband abandoned her and her two children, John about the age of ten years and Sandra Jane about the age of three years. Plaintiff stayed with her sister-in-law for a time and finally secured a position as housekeeper with one Wacker. The family was separated, John living with his grandmother in Iowa. Wacker was preparing to go into the service and plaintiff advertised for a position as housekeeper. In September 1942 Harper answered plaintiff's advertisement and made a contract with her to become his housekeeper, for which he agreed to pay her $40 per month and to furnish a home and board for her and her two children. Plaintiff and her children thereupon took up their residence in Harper's home where they resided until they moved to another home with Harper in which they resided until after Harper's death on November 25, 1945.
Plaintiff performed her part of the contract exceptionally well. She did the housework, the cooking, the canning, the laundry, the cleaning, secretarial work and did business errands for Harper. Upon at least one occasion she helped load hogs. She occasionally drove the truck and Harper's automobile sometimes on his errands, sometimes with him and sometimes for her own purposes. Plaintiff did practical nursing for him at times when he was not well, and generally was a useful, efficient and hard-working person upon the Brunswick farm and Harper's later residence where she and her family lived.
Harper paid plaintiff $40 per month as agreed between them, furnished home and board to plaintiff and her children and developed a warm friendship for them.
Harper was the owner of hog farms and operated them on a large scale. He became particularly fond of plaintiff's little girl, Sandra Jane, gave her money and clothes and had her with him whenever he could. Harper talked about the fine plans he had for her future. Harper also became very fond of plaintiff's son, John, who did chores about the farm and who was allowed to keep money from the sale of extra milk, litters of pigs and vegetables and fruits, which monies ran to considerable amounts. Harper was planning to have John go to a private school at Hudson, Ohio. Plaintiff, her children and Harper sat at a common table at meals. Harper encouraged plaintiff and her children to go to Sunday school and church and went with them. Plaintiff was likewise encouraged to join church organizations, study groups and the like and was allowed to use the automobile for her own purposes substantially as she desired.
Both the Common Pleas Court and the Court of Appeals found that about January 1, 1944, Harper agreed with defendant that, if she would continue her services, as she had been rendering them, until his death, he would leave one-half of his estate to her in his will. However, there was no written note or memorandum of this agreement and Harper died intestate.
The Common Pleas Court dismissed plaintiff's petition for the reason that the oral agreement upon which it was founded was within the statute of frauds and that since the services rendered by plaintiff were capable of being measured in money the agreement was not taken out of the statute.
The Court of Appeals reversed the judgment of the Common Pleas Court and entered a final judgment for plaintiff on the ground that the services to be rendered by plaintiff and, in fact, rendered by her, were of such character that they were not intended to be and were not susceptible of being measured by a pecuniary standard and therefore the agreement between plaintiff and Harper was not within the statute of frauds.
Further facts are stated in the opinion.
The case is before this court by reason of the allowance of a motion to certify the record.
Mr. John B. Oviatt and Mr. Harry L. Deibel, for appellee.
Mr. Seabury H. Ford, Mr. Charles G. McCorkhill and Mr. Franklin B. Powers, for appellants.
As the present case comes to us, we take it as settled that there was an oral contract made between plaintiff and Harper on January 1, 1944, whereby Harper agreed to leave, by will, one-half of his estate to plaintiff in consideration of her continuing to live with him and continuing to render the services which she was then performing. Although the making of the contract was denied in the answer in the Court of Common Pleas, both that court and the Court of Appeals held that the evidence established the existence of the contract. Likewise, the defense in the answer, that plaintiff had elected a remedy of a claim for money by filing her verified claim with the administratrix in which plaintiff stated that she was entitled to either one-half of Harper's estate or the net value of one-half thereof, which she claimed was $150,000, has not been seriously urged, and in the view we have taken it is not essential for us to pass upon that question. The sole question before us, therefore, is whether plaintiff can enforce her contract against defendants in the face of Sections 8620, 8621 and 10504-3 a, General Code.
It is conceded for the purposes of the present case that there was no agreement, or memorandum thereof, in writing concerning the contract between plaintiff and Harper, and that Harper died intestate.
Section 8620, General Code, reads:
"No lease, estate or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned, or granted except by deed, or note in writing, signed by the party so assigning or granting it, or his agent thereunto lawfully authorized, by writing, or by act and operation of law."
Section 8621, General Code, provides:
"No action shall be brought * * * upon a contract or sale of lands, tenements, or hereditaments, or interest in, or concerning them, * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized."
These sections appear in the chapter of the Code designated "Statute of Frauds and Perjuries." Both sections were enacted February 19, 1810 (29 Ohio Laws, 218), and, with no substantial changes so far as the matters with which we are concerned, have remained as the law of Ohio until the present day.
Under the wording of these sections it would appear that plaintiff could not maintain her action because her agreement with Harper did contemplate a contract for an interest in lands, and, indeed, in the very earliest cases decided by this court, it was held that the statute of frauds constitutes a rule of evidence and that partial performance would not take an oral contract out of the operation of the statute. M'Coy v. Skinner (1816), 1 T., 69; Lenington v. Campbell (1817), 1 T., 105. However, this court very early departed from that doctrine and held as to agreements to convey or lease, where there had been a delivery of possession, that such delivery would remove the oral contract from the operation of the statute. Wilber v. Paine (1824), 1 Ohio, 251; Waggoner v. Speck (1827), 3 Ohio, 292; Moore v. Beasley (1827), 3 Ohio, 294; Bridgmans v. Wells (1844), 13 Ohio, 43; Kelley v. Stanbery (1844), 13 Ohio, 408.
That delivery of possession will take an oral contract concerning lands out of the statute of frauds has been consistently held by this court since the case of Wilber v. Paine, supra. Bumiller v. Walker, 95 Ohio St. 344, 116 N.E. 797, L.R.A. 1918B, 96. Such delivery of possession must be referable to the contract. Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford Murray v. Wick, 18 Ohio St. 190, 98 Am. Dec., 103. However, as consistent as this court has been in holding that delivery of possession removes an oral contract from the statute of frauds, it has been just as consistent in holding that the payment of the consideration is not sufficient to take such a contract out of the statute ( Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 Ohio, 528), and this is just as true where the consideration consists of personal services ( Hodges v. Ettinger, 127 Ohio St. 460, 189 N.E. 113).
With reference to contracts or agreements to make a will, this court held in Howard v. Brower, 37 Ohio St. 402, that where the agreement is in reference to land or money it is within the statute of frauds. In Crabill v. Marsh, 38 Ohio St. 331, one Nathan Marsh promised Nancy Marsh, his daughter-in-law, he would deed or will to her the major part of his property if she would live with him. He failed to either deed or will his property as agreed and after his death Nancy Marsh, having fulfilled her agreement, brought an action for damages. This court held that the promise was rendered unenforcible by the statute of frauds.
In the case of Shahan, Exr., v. Swan, 48 Ohio St. 25, 26 N.E. 222, 29 Am. St. Rep., 517, this court held that an oral contract to make a will which concerned both real and personal property was indivisible and, therefore, was within the statute of frauds.
In the case of Kling, Admr., v. Bordner, 65 Ohio St. 86, 61 N.E. 148, paragraph four of the syllabus reads:
"A verbal agreement to leave real property to another by will, or otherwise, in consideration of personal services to be rendered by the latter, is within the statute of frauds, and void; and the payment of consideration by rendering the services is not such performance as will take the agreement out of the operation of the statute."
It would seem from the cases decided by this court that plaintiff had no cause of action upon her agreement with Harper, for the reason that there was no memorandum in writing and that the consideration furnished by plaintiff consisted of personal services. However, plaintiff claims that she is not bound by the rule of Kling, Admr., v. Bordner, supra, because of two statements by this court.
The first statement is the following obiter of Judge Bradbury in the case of Shahan, Exr., v. Swan, supra, 40:
"Notwithstanding that it is the established rule in Ohio that the payment of the consideration, even in the personal services of the party seeking relief, does not ordinarily constitute such part performance as will take a case out of the operation of the statute of frauds, we do not wish to be understood to hold that cases may not arise wherein specific performance of a contract in parol may be had on the ground that the consideration had been paid in personal services, not intended to be, and not susceptible of being measured by a pecuniary standard."
The second statement is the syllabus in the case of Newbold v. Michael, 110 Ohio St. 588, 144 N.E. 715, which syllabus is:
"Equity will not enforce by specific performance a verbal contract to leave an estate, including real and personal property, to another by will, in consideration of personal services, even though the same have been performed, and said contract and performance are by clear and convincing evidence, unless the character of the services were not intended to be and are not susceptible of being measured by pecuniary standard, or unless the contract has been so far executed that a refusal would operate as a fraud upon the party who has performed and would result in a denial of just compensation. ( Kling v. Bordner, Admr., 65 Ohio St. 86, 61 N.E. 148, approved and followed.)"
It is interesting to note that in the Newbold v. Michael case there was an oral contract by which Maud Michael agreed with Joseph Wooley to go to his home, live with him and care for him and his household, Wooley agreeing he would provide either by his last will or in some other sufficient manner that Maud Michael would have and receive all Wooley's property; and that upon those facts this court held that the services of Maud Michael were such that they could be compensated in money and that, therefore, the contract was within the statute of frauds.
In the present case plaintiff strenuously claims that the services which she rendered as her consideration for the contract were such as were not compensable in money, and the Court of Appeals, in reversing the judgment of the Court of Common Pleas, so held.
It is true that plaintiff's services consisted of hard work and a great variety of tasks, but upon what the ory they were not compensable in a pecuniary sense it is difficult for us to grasp. She was Harper's housekeeper and did his cooking, cleaning, canning, laundry, and all the things which go with that kind of position. It is to be observed that the cooking, cleaning, canning and other work were done for herself and her children as well as for Harper, but assuredly it is a fact that such services are being performed in innumerable instances all the time and are being paid for either upon a quantum meruit or contract basis. In addition, plaintiff did secretarial work and went on business errands for Harper, but in hundreds of thousands of homes and offices that is being done every day and paid for by the one for whom it is being done. Her loading of hogs, only one instance of which was testified to, and her occasional driving of trucks, while difficult work, are performances such as are being compensated in money upon farms all over America. Truly her acting as chauffeur in driving Harper to places where he desired to go were services having a money value, as witness the tremendous number of paid chauffeurs in all parts of the country. The same observation can be made with reference to the work of plaintiff in taking care of Harper when he was ill. Practical nurses are being hired and compensated in money in every community in the land.
It is true that plaintiff's tasks were various and, entailed much time and labor, but the mere fact that there were many different tasks and that the evaluation of them would be more difficult than would be the evaluation of a single enterprise or pursuit does not make the tasks any less compensable in money.
Plaintiff argues strenuously that her services are not susceptible of being measured by pecuniary standards because of the fact that Harper liked her and her children and that she and her children liked Harper. She dwells upon the fact that Harper gave her children money and clothes; that he was planning for their education and their future; that he went to Sunday school and church with the children; and that he took them to visit her relatives and had her relatives and friends come to his farm. It seems to us that all these actions did not constitute services by plaintiff to Harper but, on the contrary, constituted favors and kindnesses from Harper to plaintiff and her family and did not in any degree affect the compensability of plaintiff's services in money.
We know of no rule by which it is necessary for an employer and employee to dislike or hate each other and not to be kindlly and generous toward each other in order for the services of the employee to be monetarily compensable by the employer.
In the present case all the testimony is to the effect that the services to be rendered by plaintiff after the agreement of January 1, 1944, with reference to the making of a will, were to continue to be the same as those which she was performing at that time under her 1942 contract of $40 per month and a home with board for herself and her family.
In order for services to be such as are not compensable in money they must be of a kind which are rendered as a result of a sacrifice by the one performing them, generally being rendered because of love and affection. There are many cases where a relative or a dear friend leaves his own family, home or position to go to work for the other who needs his services, and the services based upon such sentiment are difficult, if not impossible to evaluate in money. As was said by Judge Minshall in the case of Emery v. Darling, 50 Ohio St. 160, 167, 33 N.E. 715, "The value of the society of one sister to another is incapable of measurement in money."
In the present case the only evidence on the matter is that there was no sentiment between plaintiff and Harper and their relationship was strictly on a business basis; and the attorneys for plaintiff insisted that this was a fact. Plaintiff did not give up her home or her family to come to Harper, she advertised for a place and went to work for Harper not only for the money compensation she received but for a home for herself with both her children with her, a status which she had not been enjoying previous to becoming Harper's housekeeper.
In the cases cited in plaintiff's brief, where courts have decreed specific performance of contracts to make a will, in almost every instance the person who had performed the personal services had done so at a considerable sacrifice of his own interests.
In Woodworth v. Porter, 224 Mich. 470, 194 N.W. 1015, specific performance of a contract to make a will was decreed, without much discussion of the principles of law involved, because of the fact that the one who agreed to make the will lived on a large farm, only a small part of which was fit for cultivation. The farmer, becoming old, leased the farm and some years thereafter the tenant informed the owner that there was so little profit in the lease that he was going to abandon it. The owner of the farm, and mutual friends of his and the tenant, in order to induce the tenant to continue to operate the farm, promised that it would belong to the tenant upon the owner's death.
The case of Gladville v. McDole, 247 Ill. 34, 93 N.E. 86, was an action to enforce an oral agreement to devise land in return for personal services. In that case Eva Miller (Gladville) was left an orphan when she was 10 years old. Her uncle took her into his home, where she stayed. The uncle, being a very religious man and very strict with Eva, did not wish her to have any social pleasures. She became very unhappy about the restrictions, especially when she was invited by neighbors, and on one occasion when she had assisted in getting up a social affair. When she was about 18, the uncle proposed to Eva that if she would stay with him and her aunt and conform to their views about social life until she was married, she would have all the property upon the deaths of her uncle and aunt. She agreed and stayed with her uncle and aunt, performing household and farming duties without compensation, and after her marriage she returned frequently and stayed with them. Several wills were made leaving the property to Eva but were later revoked, and several papers with the aunt's signature, saying she wanted the property to go to Eva, were found. The court said in its opinion:
"Payment of purchase money, alone, will not take the contract out of the statute, for the reason that it can be recovered back, with interest, in an action at law.* * * The same is true of personal services, which can be estimated in money, for which a recovery can be had in law, because the law would in that case afford a sufficient remedy."
But the court held that Eva had constructive possession and that, considering all the evidence, to refuse to enforce the contract would be fraud upon her.
Cannon v. Cannon, 158 Va. 12, 163 S.E. 405, is a case of a parol contract by which a mother promised that her son should have certain land upon her death if he would furnish her a home and support her until her death. In order to do that plaintiff refrained from another job which he was to take, and worked for, and carried out his agreement with, his mother for a period of 16 years. Specific performance of the contract was ordered, the court to a great extent basing its decision upon the fact that there was no pecuniary way to pay for the services of the son.
Whitney v. Hay, 181 U.S. 77, 45 L.Ed., 758, 21 S.Ct., 537, is a case where an old childless couple made a contract to leave a home to a younger couple in consideration of the younger couple becoming members of the older couple's family. The younger couple gave up their home and moved in with the older couple, furnishing the home of the older people and supporting them. The court said, with reference to the younger husband, that his plans of life were materially altered in order that he might take care of Piper and wife during their respective lives. Piper put Hay in actual possession of the premises for execution of his agreement with Hay.
Bless v. Blizzard, 86 Kan. 230, 120 P. 351, is a case in which there was no discussion of the statute of frauds but in which the court said that the services rendered and the sacrifices made by the one to whom the promise was made to make the will were such as to be not easily compensable by pecuniary standards.
There was no discussion of the statute of frauds in Vandiver v. Stone, 149 Ore., 426, 41 P.2d 247, or in Weber v. Crabill, Admr., 123 Neb. 88, 242 N.W. 267.
Neal, Admx., v. Hamilton, 159 Md. 447, 150 A. 867, is a case where a grandchild of a man's wife gave up her position from which she earned $35 to $55 per week, her regular hours, fair wages and freedom from responsibility in exchange for dislocation of her social and family ties, and the surrender of her independence, and undertook to care for such man in pursuance of the contract which she fully performed. The court in allowing recovery stated, at page 451:
"While the performance of ordinary services will not take an oral contract out of the statute of frauds, if the value of such services can be ascertained with reasonable accuracy in an action at law and adequately compensated by a recovery of damages, yet where it is impossible to restore the plaintiff to his original position by any legal remedy, the essential condition of equity jurisdiction in case of part performance is fulfilled, and the rendition of the services will take the parol contract out of the statute of frauds."
Puddy v. Sharpe, 248 Mich. 147, 226 N.W. 853, is a case in which Puddy prevailed upon his grandnephew to come from England to take care of Puddy in his old age, and the court enforced an oral agreement by which Puddy agreed to leave his property to his grandnephew because the grandnephew had changed the entire tenor of his life in performing his part of the contract.
Warner v. Marshall, 166 lnd., 88, 75 N.E. 582, is a case in which there was a written contract and the question involved was whether parol evidence could be used to explain the contract. The case involved a niece coming from another state and giving up her home and profession to live with her aunt.
Howe v. Watson, Admr., 179 Mass. 30, 60 N.E. 415, is a case in which an old lady wrote to her sister living in a distant state and asked the sister to come and stay with her and take care of her until she died and that she would leave all her property to the sister. The sister came, a move which necessitated the breaking up of her own home, and the court held that the contract was valid and conformed to the statute of frauds since there was an acceptance of a written offer.
All these cases are entirely different in the facts and in the principles of law which are applicable to them from the present case in which the plaintiff made no sacrifice in coming to Harper, but, on the contrary, gained a salary and a home for herself and family at a time when she had no employment and no way by which her children could live with her. As we have said, the tasks which she performed so well in Harper's home were as much for her own family as for Harper.
The administratrix strenuously contends that, without regard to the nature of the services performed by plaintiff, she cannot recover because of Section 10504-3 a. With full knowledge of the fact that the statute of frauds had been in effect in Ohio since 1810, and after the various decisions of this court in reference to the effect of partial performance of contracts in relation to the statute of frauds, and long after the decision in Newbold v. Michael, supra, the General Assembly in 1935 (116 Ohio Laws, 404) enacted Section 10504-3 a. It reads as follows:
"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."
The administratrix argues that this section is so mandatory in language that, although in certain cases partial performance will take an oral contract out of operation of the statute of frauds, the General Assembly intended by this section that no agreement to make a will shall be enforcible under any circumstances unless the agreement is in writing, and that the statute constitutes a rule of evidence. There is much force to this argument. In the first place, Sections 8620 and 8621, General Code, are in the chapter designated "Statute of Frauds and Perjuries," whereas Section 10504-3 a is in the chapter designated "Wills" and follows directly the section which provides the solemn and formal requisites essential to the making of a valid will. Again, Section 8621, General Code, provides that "no action shall be brought * * *," whereas Section 10504-3 a provides that "No agreement shall be enforceable * * *."
Section 8621, General Code, provides for the agreement or some memorandum or note thereof to be in writing, whereas Section 10504-3 a provides that the agreement itself shall be in writing. Section 8621 provides that the agreement or memorandum or note shall be signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized, whereas Section 10504-3 a provides that the agreement shall be 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.
In view of all these circumstances and the further fact that the General Assembly knew that this court had, through the years, applied the statute of frauds to contracts to make a will, it could be persuasively contended that the legislative branch of the government intended, when it enacted this entirely new section, to require, without exception, an agreement to make a will or a devise or bequest by will to be in writing and that unless the agreement were such it would not be enforcible under any circumstances.
It is true that in the case of Ayers v. Cook, 140 Ohio St. 281, 43 N.E.2d 287, the second paragraph of the syllabus reads:
"When an interest in a business is sold to two persons, by an agreement in writing, for the payment of a specified amount, and one of the purchasers, as a further consideration for the sale, enters into a contemporaneous oral agreement with the vendors to leave real estate to them by will, a completed transfer of the business with payment of the specified amount, as agreed upon, constitutes such part performance of the contract as a whole as takes the case out of both the general statute of frauds (Section 8621, General Code) which applies to a contract to devise lands and the specific statute of frauds (Section 10504-3 a), which relates to agreements to make a will or to make a devise or bequest by will."
That is a pronouncement by this court that under certain circumstances partial performance can take an oral contract out of the operation of Section 10504-3 a, although the Ayers case did not involve any question of personal services and did involve a contract entered into prior to the enactment of Section 10504-3 a.
Some of the members of this court are of the opinion that what was said with reference to Section 10504-3 a in Ayers v. Cook should be re-examined if, in the future, it should become necessary to decide whether a case can be taken out of the operation of the section. In the present case, however, in view of the conclusion at which we have arrived, it is not necessary to decide that point now.
After a careful perusal of the record, we hold that, giving plaintiff the most favorable interpretation of the testimony and disregarding all the evidence offered on behalf of the defendants, the services which she performed for Harper were compensable in money, and if they were not covered by her original contract with Harper she would be relegated to an action in quantum meruit.
It is the legislative branch of the government which has declared that an agreement to make a will must be in writing. Although the result may seem harsh to one who has an oral contract and who has performed personal services in the fulfillment of it, nevertheless, the legislation does prevent the prosecution of unjust and fraudulent claims by those who would wilfully perjure themselves in order to press demands upon estates when the only person who could speak the truth with reference to such claims has his lips sealed in death. The weighing of the advantages and disadvantages in such legislation is a legislative and not a judicial function.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, TURNER and TAFT, JJ., concur.