Hale v. Hale

Citations

• 90 Va. 728
• 19 S.E. 739
• 1894 Va. LEXIS 54

Syllabus

<p>1. Wills — Specific enforcement — Oral agreement. — An oral agreement between two sisters to make mutual wills cannot be specifically enforced after the death of one of them on the ground of part performance, where there has been no further performance than the making and preserving of the wills and the will of the decedent has been revoked by her marriage after its execution.</p> <p>2. Idem — Contract to make — Statute of fraud. — One may by a certain and definite contract, bind himself to dispose of his estate by will in a particular way, and such contract in a proper case will be specifically enforced in equity. But such contract in respect to real estate is within the statute of frauds. Code, $ 2840. The memorandum in writing required hy that statute must contain all the essential elements of the contract (except the consideration), without recourse to parol proof.</p> <p>3. Idem — Case at bar. — The requirement of § 2840 is not satisfied where (as in the case here) the only memorandum is one of two mutual wills, neither referring to the other or to any other writing.</p> <p>4. Past Perfoemance — What is. — Acts of part performance to take a parol contract out of the statute of frauds, must be of such unequivocal nature as of themselves to he evidence of the existence of an agreement; as for example, where, under paral agreement to sell land, the purchaser is put in possession, and makes improvements.</p> <p>5. Estoppel — Mistake of law. — The mistaken view of a testatrix that her marriage subsequent to the execution of her will, was not a revocation thereof, does not estop her heirs from claiming that the will was revoked under Code, 12517.</p>