Head v. Schwartz' Ex'r

REES, Chief Justice. This is an appeal from a judgment dismissing the plaintiffs' petition after a demurrer thereto had been sustained and plaintiffs had declined to plead further. Lila Hayden Schwartz died testate May 20, 1946, and Noel Hayden was nominated in her will as her executor. On August 28, 1946, Clarence G. Head and Mary Roxie Head, his wife, brought this action against the executor to recover damages in the sum of $10,000 for the breach of an alleged oral contract by the decedent to devise certain real estate to them. Mrs. Schwartz, a widow, owned a farm in Daviess county consisting of a 40-acre improved tract and a 76-acre unimproved tract. Mr. and Mrs. Head were tenants on the farm. They alleged in their petition that for several years prior to 1941 they resided upon the 40-acre tract and managed and cultivated it along with the unimproved 76-acre tract; that they had a family consisting of themselves and ten children, which constituted a force sufficiently large to operate a much larger farm and they were contemplating moving to a larger and more productive farm; that in 1941 or 1942 Mrs. Schwartz proposed to them that if they would agree to remain upon her farm and manage and cultivate it she would make a will leaving to them the 76-acre unimproved tract to be theirs absolutely; that they accepted the proposition, and remained upon the farm during the remainder of the life of Mrs. Schwartz; that they made improvements upon the 76-acre tract at their own expense, and fully carried out their part of the contract; that in September, 1944, Mrs. Schwartz did execute a will wherein she devised the 76-acre unimproved tract of land to the plaintiff Clarence G. Head; that thereafter in the year 1945, while under the domination and influence of others and while she was quite ill and in violation of her agreement with the plaintiffs, she executed another will wherein she devised the 76-acre tract to other persons and failed to make any devise to the plaintiffs or either of them. Appellants argue on this appeal that an oral contract to devise land can be enforced where the contract has been fully performed by the promisee, and a number of cases are cited in support of their contention. An examination of these cases reveals that they fall in one of three classes: (1) Cases involving agreements not to be performed within one year from the making thereof where one of the parties has fully performed his part; (2) cases involving written agreements to convey or devise land; and (3) cases where the benefit to the intestate cannot be measured in money, and there is no way to determine the amount of recovery except by the pecuniary standard fixed by the parties to the contract. Berry v. Graddy, 58 Ky. 553, is an example of the first class, and Wides v. Wides' Ex'r, 299 Ky. 103, 184 S.W.2d 579, is an example of the second class.