OHIO NISI PRIUS REPORTS NEW SERIES-VOLUME IX. CAUSES ARGUED AND DETERMINED IN THE SUPERIOR, COMMON PLEAS, PROBATE AND INSOLVENCY COURTS OF OHIO. CONTRACT BETWEEN HUSBAND AND WIFE AS TO THE DISPOSITION OF PROPERTY AFTER THE DECEASE OF BOTH. Common Pleas Court of Union County. MARTHA A. CRARY ET AL V. ROBERT MCCRORY, EXECUTOR, ET AL. Decided, September, 1909. Wills-Contract to Make Certain Dispositions of Property by WillGrounds upon which such an Agreement will be Upheld-Mutual Promises which Constitute a Sufficient Consideration-Performance by One of the Parties Takes the Agreement out of the Statute of Frauds-May be Proved by Parol or Extrinsic Testimony-Property Devised to Wife under an Agreement as to the Disposition she was to Make of it by Will-Performance Enforced against her Executor. 1. A contract between husband and wife whereby the husband agrees to devise certain real estate to his wife absolutely, in consideration that said wife will execute her last will and testament devising an estate in remainder in said real estate to the brothers and sisters of said husband, is a valid contract. The mutual promises constitute a sufficient consideration to uphold the contract in equity. 2. Where the husband executes an oral contract by executing his last will and testament in conformity thereto and dies, leaving said Crary v. McCrory, executor, et al. [Vol. IX, N. S. will in effect, the devisees of the wife will not be permitted to interpose the defense of the statute of frauds. The performance by the husband will be held to take the case out of the operation of the statute in such cases. 3. Such oral contract, as well as the contents of the lost or destroyed will of the wife executed in conformity thereto, may be proved by competent parol testimony. The scrivener who wrote such will, and who was present when such contract was made, is a competent witness to prove the same. Hoopes & Robinson, for plaintiffs. BRODRICK, J. Plaintiffs for their amended petition say, in substance, that defendant, Robert McCrory, is the duly appointed and qualified executor of the last will and testament and estate of Rosetta Holycross, deceased, and that the other defendants are the sole devisees and legatees under said last will and testament. That plaintiffs are the brothers and sisters and sole heirs and legal representatives of deceased brothers and sisters of C. Beamer Holycross, deceased, who was the husband of said Rosetta Holycross, deceased. That said C. Beamer Holycross died on the 30th day of May, 1896, seized of an estate in fee simple in certain real estate described in said amended petition, and containing sixty-eight acres, more or less, which real estate came to said C. Beamer Holycross by devise from his father, Abraham Holycross, deceased. That on or about the 26th day of May, 1896, said C. Beamer Holycross made and published his last will and testament, de vising said real estate to his said wife, Rosetta Holycross, for life, with remainder after his death to his brothers and sisters, and their heirs and assigns. That on the 28th of May, 1896, said C. Beamer Holycross, at the special instance and request of his said wife, made and entered into a mutual compact and agreement with her, in substance as follows: Said C. Beamer Holycross agreed and promised to vest, in form absolute, in said Rosetta Holycross, at his decease, by will, in case she should survive him, the legal |