March 19, 1917. The opinion of the Court was delivered by This is an appeal from a decree of his Honor, Judge Smith, made at the Summer term of the Court, 1916, for Spartanburg county. The decree fully sets out the facts of the case and the points and issue and will be reported. To this decree the defendant excepts, and by 16 exceptions alleges error and asks that the same be reversed.
We think the decree should be reversed, as there was not such an agreement or contract proven as would require the deceased to make a will giving the plaintiff a part of his real estate after his death or such an agreement or contract made between the parties as would justify the Court in decreeing specific performance. The attempt is to enforce an agreement or contract as to real property, and there is not a particle of written evidence in any form to *Page 532 support the contention of the plaintiff, and no claim on her part that there is any such evidence. Her contention is supported by parol testimony alone.
In the case here the testimony of the plaintiff is clearly incompetent to establish any contract with the deceased under section 438 (Code Civ. Proc.), and such a contract is not binding under the statute of frauds unless in writing and signed by the party to be charged therewith. No such contract can be established by parol evidence alone; there must be some writing in the case to take it out of the statute of frauds.
Excluding the evidence of plaintiff under section 438 of the Code and the absence of any written evidence to in any way establish the agreement or contract as contended for by the plaintiff, there is an entire failure to establish the contract, and plaintiff's case fails fully. The alleged contract is void under the statute of frauds, and there is not a single decision of this Court in this class of cases that contemplated abrogating the statute of frauds.
In order to enforce a contract whereby a party contracts to dispose of real estate by will, the same principles apply and the same proof is necessary as when he contracts to convey title by deed. Under all of the evidence in the case and a careful examination of the same and all the circumstances in the case there is no evidence to sustain the finding of the Circuit Court; under the decisions of this Court in McAulay v. McAulay, 96 S.C. 86,79 S.E. 785; Dicks v. Cassels, 100 S.C. 348, 84 S.E. 878, andKerr v. Kennedy, S.C. 90 S.E. 177, it is laid down that, in order to enforce specific performance in cases of this character in a Court of equity, the contract must be reasonable, clear, definite and certain and established by strong, clear and convincing evidence and for a valuable consideration; in this case the plaintiff has utterly failed to establish this requirement.
Judgment reversed, and complaint dismissed. *Page 533
MESSRS. JUSTICES FRASER and GAGE concur in the opinion of MR. JUSTICE WATTS.