Washington Reports Vol 74

Author : Washington . Supreme Court
Publisher : Rarebooksclub.com
ISBN 13 : 9781230012063
Total Pages : 294 pages
Book Rating : 4.0/5 (12 download)

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Download or read book Washington Reports; Cases Determined in the Supreme Court of Washington written by Washington . Supreme Court and published by Rarebooksclub.com. This book was released on 2013-09 with total page 294 pages. Available in PDF, EPUB and Kindle. Book excerpt: This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1914 edition. Excerpt: ...devise lands and goods, must be in writing, signed by the testator, unless there has been such a part performance as will take the case out of the operation of the statute." Opinion Per Pabkeb, J. 75 Wash. In the note to Best v. Gralapp, 5 Am. & Eng. Ann. Cas. 495, the learned editor says: "As an agreement to devise property is like any other agreement for the conveyance of lands, if it consists of an oral promise it is within the operation of the statute of frauds, and hence is not of itself an enforceable contract"; citing numerous authorities. And in the text of 40 Cyc. 2117, it is said: "An oral contract to make mutual wills disposing of real estate is within the statute of frauds; but it may be taken out of the operation of the statute, so as to be specifically enforceable, by a part performance." This court adhered to this doctrine in Swash v. Sharpstein, 14 Wash. 426, 44 Pac. 862, 82 L. R. A. 796, where a contract to devise property was in question, involving both real and personal property. At page 485, Justice Scott, speaking for the court, said: "If the contract is void as to the real estate, the plaintiff cannot enforce it as to the personalty either, for being void in part it is void as a whole. Ellis v. Cary, 74 Wis. 176 (17 Am. St. Rep. 125, 42 N. W. 252); Pond v. Sheehan, 132 El. 312 (23 N. E. 1018); Gould v. Mansfield, 103 Mass. 408 (4 Am. Rep. 573)." We conclude, therefore, that the contract relied upon by appellant as rendering the wills of July 3, 1909, irrevocable, other than by agreement or upon notice, is within the statute of frauds, and that it cannot be recognized by us as of any force unless evidenced in writing or partially performed so as to relieve it from the operation...