delivered the opinion of the court, May 5th 1879.
This controversy, between an aged father and his youngest son, *387is not grateful to witness, though conducted with less acrimony than is frequently exhibited in family disputes. At the trial a wide field was covered in the examination of witnesses, but the case is now brought within a narrow compass. It depends upon the construction of a writing which one party calls a will and the other a contract. If, taken as a contract, it gives the defendant no present right of possession, it need not be determined whether it is a will.
The learned counsel for defendant puts his case thus: “ The defendant sets up no present title to the farm. He has never claimed any right to exclusive possession. What he insists upon is simply that he shall not be turned out of doors and away from the farm when it was agreed between him and his father he should remain during the lifetime of his parents.” The plaintiff claims to recover possession whether the writing is a will or contract. His second point asked instructions that if the jury believed there was an agreement, substantially as defendant alleged, the latter cannot hold possession. He prayed for no instruction as to the title, nor concerning rights defendant would have after the plaintiff’s decease.
On its face the paper is a will, formally executed as such. The fifth item, in which the residue of the maker’s real and personal estate is given to N. A. Black, contains the following: “ It being understood, that he, the said Niram, is to remain on the farm and assist in working it, and render his parents such assistance as their circumstances may require.” It is alleged by defendant that this will was made in pursuance of agreement, in parol, namely: “ The plaintiff agreed with defendant in 1857 that defendant should remain at home on the farm and assist in working it and render his parents such assistance as their circumstances might require, and that if he did so then the farm should belong to the defendant after his father’s death absolutely, and that defendant should have a writing to show that the farm would be his;” and consequently the will is irrevocable, and binding between these parties as a contract. If this be the contract, who- is entitled to possession of the farm during the vendor’s life ? His contract was to give it at his death, and putting it in form of a will, by its own operation, would vest the title then, and, by irresistible inference he was to retain possession till then. The consideration was services of the vendee to be rendered on the farm. These services were labor and assistance, not control of the farm nor seizure of its products. The vendee is not made tenant during the vendor’s life, to receive the income and dole out subsistence to his parents. Nor is there any provision for joint possession, for joint management, or an interest in common in the use and profits. The parents wished the son, who had just arrived at majority, to remain with them, and, as inducement, promised him the homestead at the father’s death. 'Such arrangements are not infrequent and have not been understood as vesting in the son pre*388sent proprietorship, and subjecting the parents to his mercy. Often the parties live in peace for many years and end in strife, as in this case; but now is not a time, to descant on the folly of such loose agreements between parents and children. If the defendant offers to remain and the plaintiff forbids, if he tenders performance of the work and assistance required by his obligation, and holds himself in readiness for such performance, and the plaintiff refuses to receive, the contract will not fall by his delinquency.' He has as little right to remain on the farm by strong-hand, and compel acceptance of labor on it, as he would have to force a money consideration into the vendor’s pocket.
The record shows affirmance of defendant’s second point, to wit, “ There being no evidence of ouster by the defendant of the plaintiff, nor proof of a denial of plaintiff’s right to remain in possession of the farm, the plaintiff cannot recover.” It is said the affirmance is a slip of the pen, and it seems so from the charge. We refer to it only to call attention to the undeniable fact that the defendant is living on the land with his family, cultivating fields, and in exclusive occupancy of a part of the dwelling-house, against his father’s consent. The plaintiff’s second and third points should have been unqualifiedly affirmed, and defendant’s first point refused. It is unnecessary to remark upon other alleged errors in the trial.
It is evident that, following defendant’s marriage, there was an express or implied arrangement in reference to use of the farm, division of crops, and occupancy of the house; but there is no evidence that it was to continue for any definite time. Ample notice was given to defendant to quit, before commencement of the action.
The contract, as proved by defendant himself, was tersely and fairly stated by his counsel, and his rights thereunder have been considered as if it were well proved and valid. Impelled to the conclusion that, on his own showing, he has no defence against the plaintiff’s claim of possession, we refrain from expression of opinion as to sufficiency of proof to establish the alleged parol agreement, and defendant’s right to recover damages in case of breach thereof; or whether there is evidence to warrant submission of any question to a jury which would make the apparent will a contract.
Judgment reversed, and a venire facias de novo awarded.