I concur in the result on the ground that the evidence fails to establish the agreement alleged in the complaint by that measure of proof required by law in such cases. It is not sufficiently clear, definite and certain. Only two witnesses testified to the making of the agreement and its terms. They were the plaintiff and her father, both interested — the one legally; the other morally. Two other witnesses testified to declarations of William Golightly, and they differ from each other. To one he said "he would take the child, and at their (his and his wife's) death the child was to get one-half of the property;" to the other, "if she stayed till his wife died, she would get half that they had." In neither was there any reference to a contract to make a will. He may have merely expressed his intention to provide for the child in his will.
I think the testimony of plaintiff was competent. She did not testify to any transaction or communication between herself and deceased, but only to one between her father and deceased in her presence. Sloan v. Hunter, 56 S.C. 385,34 S.E. 658, 76 Am. St. Rep. 551.
I am not prepared to assent to the proposition that in no case will the Court decree performance of a contract to devise land where it rests in parol and is proved only by parol evidence. The decision of that point is not necessary to the decision of this case. But if part performance of a parol contract to convey land will take a case out of the statute of frauds, why would not part performance of a contract to devise land have the same effect?
MR. CHIEF JUSTICE GARY dissents for the reasons stated in the decree of his Honor, the Circuit Judge, which is reported. *Page 534