De Boer v. Harmsen

Grant, J. (after stating the facts). In the statement of the case the attorneys for both parties have trav [94] eled outside the record, and made a statement of facts evidently as they expected to prove them. We have nothing to do with the facts except as they are set forth in the declaration. The sole question is, Does the declaration state a cause of action ? Counsel for plaintiff assert that this was a contract made by the defendant to pay the plaintiff $500, including the legacy left her by the will, if she would induce her father not to change his will. Counsel for defendant contend that the alleged contract is one relating exclusively to an expectancy and a division of the property of the ancestor. If it is the former, an action at law would lie; if it is the latter, such a contract is void at law, and can only be enforced, under certain circumstances, in a court of equity, in which case it is essential to show that the ancestor was informed of and assented to the arrangement. Needles v. Needles, 7 Ohio St. 432 (70 Am. Dec. 85); Clendening v. Wyatt, 54 Kan. 523 (38 Pac. 792, 33 L. R. A. 278); In re Kuhn’s Estate, 163 Pa. St. 438 (30 Atl. 215); In re Lennig’s Estate, 182 Pa. St. 485 (38 Atl. 466, 38 L. R. A. 378, 61 Am. St. Rep. 725). We think the court erred in sustaining the demurrer. While not expressly alleged, we think it a fair inference from the declaration that the arrangement was made in the presence of the testator, and that he assented to it. If this be so, and the proof sustains these allegations, the law interposes no objection to a recovery. If, however, it shall appear by the proof that the father was not fully informed of the agreement, and did not assent to it, the plaintiff will not be entitled to recover. A secret contract made by one heir with, another to induce his ancestor to make a will, or to change or not to change a will already made, is against public policy, and void. The judgment is reversed, and the case remanded for further proceedings. Hooker, C. J., 'Moore and Montgomery, JJ., concurred. Long, J., did not sit.