dissenting.
The problem in cases such as the one before us is that one party to the oral contract is deceased, and under such circumstances it is usually difficult to prove an oral contract. Therefore, all surrounding circumstances should be examined in determining if one was in fact made.
In the present case, the evidence supports a conclusion that Emza and Jerome did in fact orally contract as he alleges. While it is true that possibly much stronger and clearer evidence would have been more desirable the evidence does establish that an oral contract existed.
Jerome’s father died testate in 1937. He was not named in his father’s will and without question he was entitled to one-third of his father’s estate as a matter of law. Jerome assigned his one-third interest to his mother for one dollar and other valuable consideration. Hindsight tells one that he should have set forth the agreement in writing — that was not done. However, it is undisputed that Jerome and his mother did negotiate with each other at least several months before the assignment was executed. His father’s estate was substantial and any claim that he simply assigned away his share of inheritance for one dollar and received no promise of anything in return is doubtful if not unbelievable. In addition to these facts there is a letter written by Emza to Jerome in 1963 wherein she assured him that he would get his share of her estate when she died. This, we think, shows that an earlier agreement existed between Emza and Jerome. Further, there is testimony from an impartial witness who stated that Emza had told her that Jerome and his sister Jane would inherit her estate.
The only evidence rebutting appellee’s claim of an oral agreement is the testimony of Jerome’s ex-wife. Her testimony is not that positive and in addition it is somewhat self-serving for the obvious benefit to be received by her children.
In reviewing all of the above evidence and considering all of the surrounding circumstances of this case I conclude that the judgment of the trial court is not clearly against the weight of the evidence and would affirm its judgment.