dissenting.
The plaintiff’s right to the relief she asks is predicated upon the existence of a contract between her and General Cobb that he would convey the entire tract of land sued for in return for the surrender to him' and the sureties of her husband of the money from the life insurance policies iof which she was the beneficiary. We are convinced from a careful reading of the testimony that no definite contract has been proved. No one has testified to the terms of the contract declared upon in the petition. The testimony concerning General Cobb’s declarations is in many respects proof of testamentary intentions merely. A number of witnesses testify to such expressions as that “he always intended the farm to go to Mrs. Cobb and children;” “he intended the farm for Mrs. Cobb and the boys;” that when he was dead the farm “was to belong to Mrs. Cobb and the boys;” “I have given that farm to Carrie. Then he said something about Carrie and the boys having the farm.” While other witnesses testify that, in speaking of the surrender of insurance money by Mrs. Cobb, the deceased said: “She would lose nothing by it. She was to get the farm that he intended Maxey to have.” “He intended to give it (the farm) to Mrs. Cobb.” “He intended the farm now for Maxey’s wife and children.” “Mrs. Cobb was going to have the farm and boys to have their share.” “I have told her she will have the farm.” “The farm goes to Carrie because she has furnished us her life insurance money to help settle with the county.” “Carrie turned over her insurance and I gave her Maxey’s farm.”
It seems to us, upon the entire record, that the mind must remain in doubt as to whether a contract was made, or, if made, whether it contemplated devising or conveying this land to the plaintiff or to the plaintiff and her sons. The evidence fails to prove with any certainty the existence of the contract alleged, and it also fails to point out definitely the specific tract of land to which the language used by General Cobb was meant to be applied.
*422Furthermore, the declarations of the plaintiff are inconsistent with the existence of such a contract. Shortly before General Cobb’s death she acted as his agent in seeking a purchaser for the land. She corresponded with him and gave her views concerning the price for which the general could profitably sell the farm, and fully recognized his right to treat it as his own. She stated at the court house, when the will was read, that General Cobb had promised to leave her one-half of his estate. Her statements to Mrs. Macfarland, at all times before and after General Cobb’s death, were with reference to a share of the estate, and at no time till months after General Cobb had passed away did she assert any contractual right to this land.
She sent General Cobb about $800 per annum apparently for the use of the land during the years she occupied it subsequent to her husband’s death. In 1905 she wrote she was sorry she had not remitted what she ought to have sent from the farm. It may also be observed -that, in the proceedings brought by her to collect from the estate the amount of her claim for money advanced to General Cobb, her counsel, Judge Harvey, was willing to concede a credit of $8,000, which is ignored in these proceedings.
At the time of the payment of the shortage, the land was worth, as near as can be judged from the testimony, from $12 to $18 an acre. It is a matter of common knowledge that following the panic, in 1896, farm lands in eastern Nebraska appreciated rapidly in value. It seems reasonable to believe that when General Cobb by his last will and testament in 1902 gave the boys and the mother one-half of the whole 1,240 acres, he believed that he was doing by them just as he had contemplated and given them to expect.
We have said that where it is sought to set aside the provisions of a will by proof of an oral agreement by which the property which is the subject of the will is otherwise disposed of the agreement must be established, *423if at all, by clear, convincing, and satisfactory evidence. Rau v. Rau, 79 Neb. 694; Teske v. Dittberner, 65 Neb. 167, 70 Neb. 544; Peterson v. Estate of Bauer, 76 Neb. 652, 661. This is a sound rule, and the barrier afforded by it to a disposition of estates other than that intended by the owner in his lifetime should not be relaxed. This court has already gone to the limit in changing the disposition of property after the owners of it have passed away and are unable to help themselves. It is not the province of the courts to distribute estates as they think most just and equitable. Their sole function is not to decide what the deceased should have done, but to ascertain what he did in fact do, and in our opinion the quantum of proof required to establish the agreement alleged has not been produced.