The case fairly presents the question whether the agreement set up by the plaintiff, and upon which a recovery was sought, was within the statute of frauds. The first count alleges that on or about the first day of January, 1854, in consideration of the transfer of certain property, or an interest therein, to him, the defendant agreed to furnish the plaintiff, at his residence, suitable board, care, clothing, &c. from the time of said agreement, during her natural life. It then avers that while the plaintiff remained in the family of the defendant she was abused and ill treated, and finally expelled therefrom; and claims damages for her insufficient support while she remained with the defendant, and for his refusal to comply with his contract for the period which has since elapsed and will elapse. Upon the trial, the plaintiff offered evidence to prove, by parol, the alleged agreement, to which the defendant’s counsel objected, on the ground that the agreement resting in parol was void under the statute of frauds, because it was not to be performed within a year; and that the plaintiff’s remedy was by an action in equity for the specific performance of the agreement, or at law for the consideration of the agreement. The objection was sustained by the court, the evidence excluded and the plaintiff excepted.
In thus ruling I think the court erred. The language of the statute (2 R. S. 3d ed. 194, § 2, sub. 1) is, that every agreement not in writing shall be void that “ by its terms is not to be performed within one year from the making thereof.” The agreement in this case clearly did not fall within the letter of the statute, although it is insisted by the defendant’s counsel that it was not within the expectation of the parties that it should be performed within a year, and therefore it was within the statute. I do not know how it is to be determined what the expectation of the parties was, in *576this respect, nor do I know that this consideration would make any difference in the construction of the agreement. It /«'was an agreement that was capable of performance within | the year, for it depended upon the contingency of the plain-i tiff's life, and her death might happen within the year. The I weight of authorities clearly is, thairin order to the invalidity I of such an agreement^ must, by its express terms, provide for a performance beyond the year, and that whenever the I performance depends upon a contingency which may, or may/ I not, happen,, within the year, the provision of the statute does| I not apply.
There are two cases reported in Massachusetts that fully recognize this distinction. The one in 18 Pick. 569, holds that the statute does not extend to an agreement that one party may cut trees on the land of another at any time within ten years, because such an agreement may be performed within a year. The case of Peters v. Westborough, (19 Pick. 364,) is still more in point, for the court there held, expressly, that a parol agreement to support a person a certain number of years is not within the statute. And it is put upon the ground that a parol contract is not void within this provision of the statute, if the performance of it depends upon a contingency which may happen within the year, although in fact it does not thus happen until after the expiration of the year.
In Moore v. Fox, (10 John. 244,) the court held that in order to bring a case within the statute, there must be an express and specific agreement not to be performed within the year, and that if the thing may be performed within the year, it is not within the act. In Lockwood v. Barnes, (3 Hill, 128,) the same principle is declared, and the court say that if the agreement be such that the time for performance, although it is highly improbable that it will, may arrive within a year, the case is not within the statute. Artcher v. Zeh, (5 Hill, 200,) is to the same effect; and it is emphatically stated in that case, that to bring a contract within the statute relating to parol agreements not to be performed with*577in a year, it must appear to be necessarily incapable of performance within that time.
In commenting upon this provision of the statute, Comstock, J. says, in 19 N. Y. Rep. 307, that “it is not the meaning of the statute that the contract must be performed within the year. If the obligation of the contract is not by its terms, or necessary construction, to endure for a longer period than a year, it is a valid agreement, although it may be capable of an indefinite continuance.”
Upon a review of the authorities, Ch. Kent, in his commentaries, (2 Kent, 520, note,) says the statute only applies to agreements which are, by express stipulation, not to be performed within a year. It does not ajjply to an agreement which appears from its terms to be capable of performance within the year ; nor to cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year.
Tested by this rule, founded on the authorities which fully sustain it, the agreement set up in this case was not void by the statute, and the proof offered to sustain this averment in the complaint should have been received.
The case of Boydell v. Drummond, (11 East, 142,) which is cited as a decisive authority against this construction of the statute, if in truth it stands opposed to these cases, must be considered as overruled by them; but it is susceptible of the explanation, that in that case it was almost a matter of necessity that the contract could not be completed within a year, since by its very terms the publication of the book, to which the defendant became a subscriber, was to be made in annual numbers, running through a series of years, and such was the clear understanding of the parties to the agreement.
. There is no necessity for driving the plaintiff in this case to an equitable action to enforce a specific performance. The contract and the breach being established, the law gives a remedy for such damages as the plaintiff shall be enabled to show she has sustained. Wilder v. Seeley (8 Barb. 412) is *578a decisive authority for the maintenance of this action, and for a full recovery upon all the breaches assigned in the complaint.
The order nonsuiting the plaintiff must be set aside, and a new trial granted, with/costs to abide the event.