Nelson v. Schoonover

Citations

• 89 Kan. 388
• 131 P. 147

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Oral . Contract — To Devise Property — Action for Specific Performance. An action against heirs or devisees, to acquire title to real property because the decedent under whom they claim had agreed to leave it by will to the plaintiff, is in the nature of one for specific performance of a contract to convey land, and in the trial thereof a jury can not be demanded as a matter of right.</p> <p>2. Oral Contract — To Devise Property — Good Consideration— Enforceable — Statute of Frauds. An oral agreement between husband and wife that she will make a will leaving to him all the property owned by her at the time of her death, both real .and personal, in consideration of real estate owned by him being conveyed to her, is rendered enforceable, notwithstanding the statute of frauds, where in accordance with its provisions the title to land paid for by the husband is taken in the wife’s name, and she makes such a will, and thereafter in reliance thereon he expends labor and money in improving the property.</p> <p>.3. 'Will — Agreement—Valuable Consideration — Both Contractual and Testamentary. A will executed under an agreement founded upon a valuable consideration is contractual as well as testamentary. In the latter aspect it may be revoked without the consent of the beneficiary, but not in the former. Its revocation as an instrument capable of probate is effected by the execution of a new will, and this may be enforced so far as the provisions of the earlier will, which are based on contract, are not violated, but no further.</p> <p>4. - Devises — Property Subject to Payment of Debts. Notwithstanding an agreement by a wife, founded upon a valuable consideration, to leave to her husband by will the property owned by her at the time of her death, such property will be subject to sale by the executor where that is necessary for the payment of valid demands against the estate or of the costs of administration.</p> <p>5. - Certain Provisions