dissenting.
The testimony of 11 disinterested witnesses seems to establish these material facts: First, that Kelly’s declarations, made during a period of 21 years, disclose that he made an oral agreement with John Clark’s father for John’s services, and in consideration therefor he agreed that all of his property at his death was to become the property of John Clark; second, that John Clark, in reliance thereon, fully performed all of the services that the agreement contemplated he was to perform, and that the services so rendered are referable to that agreement; third, that Kelly for 21 years accepted the services rendered by John Clark, and thereby affirmed and acquiesced in the agreement; fourth, that Kelly never made a statement that is inconsistent with his often expressed declaration, made mostly to farmer neighbors whom he had known from 10 to 30 years, that all of his property at his death was to become the property of Clark; fifth, that Kelly died without having performed his part of the agreement.
Dr. Murphy was Mr. Kelly’s physician and intimate, friend for more than 15 years. He testified that Kelly told him that he lived alone, and “that he made an agreement with John Clark’s father that, if John would come and live with him until he died, he should have everything on God’s green earth that he had, and he said that many times,” and that Kelly said “he went to Missouri after him. * * * I don’t believe there has been a year that I have not heard Jim Kelly state the contract he'made with John Clark’s father.” To another Kelly said he told Clark’s father that, “if they would let Johnny come and stay with me, * * * when I died I would give him all that I had.” To another, in speaking about renting the^farm: “I would not rent it for more than one year at a time because * * * Avlien I die everything goes to John, and he can do as he pleases with it. * * * I promised to give him eve*223rything I had, and I am going to live up to my contract. ’ ’ To another Kelly gave a like answer when asked about selling the farm. Another testified: “ITe said him and John had been trading, and that he tried to beat John in tbe trade. He said John has pretty - good judgment. He said he traded with John the same as he would with anybody else, because he expected John to have what he had when he got through with it, and he wanted to know that he would-know enough to take care of it.” To another he made the same statement, and added: “He was going to leave John all his property, and he wanted to see if he could be cheated out of it.” Two witnesses said that Kelly’s declarations were made in Clark’s presence. Hannemann v. Ott, 98 Neb. 492; Harrison v. Harrison, 80 Neb. 103; O’Connor v. Waters, 88 Neb. 224. Clark married 6 years before Kelly died. He brought his wife to the humble, home, and there with their children they all lived and toiled together until the aged uncle died.
William H. Kerr, a neighbor, testified that he stayed over-night at Kelly’s home about a year before Clark’s marriage, and that Kelly said: “He told me in John Clark’s presence that he wanted John to get married. * * * It would make it more comfortable for them if there was a woman in the house to keep house for them. He said if he done that, and stayed with him, that he would give him everything at his death. * * * He told me that he took John Clark when he was about seven years to raise him, and he said he told his father, * * * if he would let him take that boy and raise him, he would give him a good education and give him everything at his death. * * * Told me that that evening, in the presence of. John Clark.” This testimony supports the allegations of Clark’s answer and cross-petition with respect to the parol renewal by Kelly with Clark of the 1891 agreement from time to time that, in consideration of Clark con-*224tinning to care for Kelly and continuing to live with him, Kelly would leave all his property to Clark at his death. Almost it seems that the judgment of the learned trial court, and its affirmance here, is based upon unrelated fragments of testimony, rather than on the weight of testimony.
The cross-appellants charge that Clark fraudulently obtained a deed from 14 of their number conveying their interest in 80 acres of the land to his minor daughter, Mary Clark, and that they executed the deed in pursuance of false representations made to them by Clark to the effect that it was his uncle’s dying request that Mary have the 80-acre tract. In proof of this they introduced in evidence a series of letters written by Clark to certain of their number. Clark contends, and the proof seems to show, that the letters were written in pursuance of a proposed compromise settlement tendered to him by some of the cross-appellants, and which provided that, if all cross-appellants would join in the settlement and execute the deed, he would relinquish his claim to the remainder of the estate. The agreement was not consummated because only 14 cross-appellants would sign the deed, the remaining 5 refusing to sign. The agreement was afterwards repudiated by the 14 persons who signed the deed, and Clark acquiesced in the repudiation. The letters seem fairly to disclose an endeavor by Clark to fulfil his part of the agreement for settlement. All of Clark’s references in the letters to any alleged dying request, or any request of his uncle, relate to statements that Mr. Ware and Mrs. Long attribute to Mr. Kelly, as having been made by him shortly before he died about making a deed, and in one instance only two hours before that event. Mr. Ware is a husband of Kelly’s deceased sister; Mrs. Long is a sister of Kelly; and Mrs. Kelly is the wife of a deceased brother. They are ‘all directly or indirectly interested in the suit. Mrs. Long is a cross-appellant. The children *225of Mr. Ware and the children of Mrs. Kelly are cross-appellants. The three persons named all came together from their respective Missouri homes, and arrived at the Kelly home 24 hours before their aged kinsman died, and were with him at the moment of final dissolution. It does not appear that Clark was present and heard any of the alleged statements of his dying uncle.
The letters are all addressed to certain of the cross-appellants, and relate in part to the visit of the three relatives. They were ’■written in September, October, and November, 1912. In one Clark reports Mr. Ware as saying that, on the day his uncle died, “the last thing he ever said to anyone except the nurse, he told uncle John Ware that he felt so much better he was going to town in two or three days and make out a deed to me.” In his deposition Mr. Ware denied hearing Mr. Kelly say that, but admitted that Mr. Kelly told him only two hours before he died “that he was going to leave Dolly a home.” Dolly was Mr, Kelly’s pet name for Clark’s daughter Mary, It appears, however, in Mrs. Long’s deposition that Mr. Ware told some members of his family on his return from the Kelly obsequies that Mr. Kelly told him in his last moments that he was going to give 80 acres to John Clark or to Mary. In the same letter Clark said that “Uncle had told him and several of the neighbors he was going to leave everything to me and Mary.” In view of Clark’s daughter being then in her second year and Clark a man of 31, it would seem that no one except Clark could be heard to complain of this statement as relating to any contract except that of 1891. Naturally there must have been some confusion among the stricken relatives as they anxiously waited at the bedside of their dying kinsman for" the whispered word that was to direct the disposition of his estate. Small wonder if they did not accurately recall his statements.
*226The rule is well settled in Nebraska that even a will cannot divert the disposition of property in a proper ease where a promisee has performed his part of a contract that provides the promisor is to convey. Much less can it be done orally. Clark cannot be held to have waived his claim to the estate by negotiating with the cross-appellants for a compromise settlement. In the present case the parties'by mutuality of agreement, no matter by whom initiated, created a situation that was repudiated by one party. The other acquiesced in the repudiation. The former status of both seems thereby to have been restored. 16 Cyc. 725.
The argument that Clark is estopped from maintaining his action, and that his agreement to accept a part of the land as a compromise settlement constitutes an election and an abandonment of his claim to the estate, does not seem to be clearly supported by the record nor by the law. Clark made no election. The deed that was made by some of the cross-appellants to Clark’s infant daughter was in pursuance of the proposed compromise settlement, and to avoid litigation. The cross-appellants are in no worse position now by any act of Clark’s of which they complain than they were before some of them executed the deed that all of them have since repudiated. The probate proceedings and the actions to quiet title were begun by Clark in pursuance of the proposed settlement, and both of the latter actions were dismissed when the proposed settlement was abandoned by the cross-appellants. In any event the estate would have to be probated. In no respect does Clark seem to bé either compromised or estopped. An election is generally held to be some decisive act that will so change the status of the parties with reference to the property or the rights involved that they cannot be restored to their 'former situation. In the present case-there was no change of status.- Clark was the owner of all of *227the property from the time that his uncle died. The fact that the cross-appellants made claims that do not seem to be sustained should not be held to work to Clark’s injury. It was while the proceedings for settlement were pending that Clark upon the advice of counsel applied to the county court of Douglas county for administration of the estate. That did not prejudice Clark. Cobb v. Macfarland, 87 Neb. 408.
Kelly never made a will, and the record tells why. He could read and write some, but was illiterate. It is not shown that he' ever wrote a letter. Not long before he died Dr. Murphy advised him to make a will. Kelly answered: “I have seen so many wills, and the lawyers make them and then break them up, and there is no one in this bottom but knows I always said John Clark should have everything I have on God’s green earth when I die.” And that in speaking of lawyers he said: “He hated them; and the people here know, and we have always done our - business together, and that he should have everything, as the contráct that I made with his father.” He preferred to rely on the trusted friends 6f many years to see that the only kinsman who helped to accumulate the estate should, as he expressed it, “have everything I have on God’s green earth when I die.”
All of Kelly’s next of kin, 20 in number, are participating in this suit. Of these, John Clark,, the son of Kelly’s deceased sister, is the only one that ever assisted him in accumulating the property, and according to Kelly’s statements the only one of his relatives that contributed to his comfort. Kelly’s often expressed declaration that Clark “-should have everything that he had” was prompted by a fine sense of honor and of justice. When his nephew came to live with him he had 160 acres of farm land almost void of improvements. Substantial improvements were afterwards added. After Clark had lived and worked with him about ten years Kelly bought an additional *22840 acres, and it now forms a part of the 200-acre tract that jcross-appellants seek to loartition. On this point comment may be spared.
The rule seems to be well settled in this state that a parol contract to convey land will be specifically enforced where the testimony shows that the promisee has performed his part of the contract in good faith, and such' contract, as against the estate of a promisor who subsequently died, may be proved by witnesses who testify to declarations made by the promisor. "Where property rights have attached in pursuance of a rule that has been long adhered to, or where reliance is placed upon a rule with respect to the conveyance of property, such rule should not be lightly revoked. The following citations in this and other jurisdictions seem to be fairly in point: Kofka v. Rosicky., 41 Neb. 328; Johnson v. Riseberg. 90 Neb. 217; Moline v. Carlson, 92 Neb. 419; Damkroeger v. James, 95 Neb. 784; Peterson v. Bauer, 83 Neb. 405; Bevington v. Bevington, 133 Ia. 351, 9 L. R. A. n. s. 508; Francis v. Francis, 180 Ia. 1191; Laughnan v. Laughnan, 165 Wis. 348; Drager v. Scegert, 138 Minn. 6; Hespin v. Wendeln, 85 Neb. 172. In Cobb v. Macfarland, 87 Neb. 408, the agreement to convey was proved solely by the declarations of decedent. The Cobb case is particularly in point.
Excepting Clark alone, Kelly expressed an aversion for all of his relatives. He told two witnesses that they should not have a penny of his money. When he was ill his physician asked him why he did not send for his nearest relatives, and he said, “I don’t want them. * * * All they come for is to raise _ ?>
Is it at all improbable that Kelly would have made an agreement that contemplated the active assistance and companionship of a robust nephew of ten years? Was it for him an imprudent agreement? In view of Kelly’s situation in 1891, being then a bachelor of *22951 who had, always lived alone on a 160-acre farm in a little one-room cabin, was it either an improbable or an imprudent agreement? The main opinion seems in part to base the decision on the fact that from a. financial viewpoint it was fortunate for Clark that he went to live with' his uncle. Clark was a poor - boy, but it will not of course be therefore assumed that his only avenue to fortune lay in the direction of Kelly’s home. But these are merely incidents. It seems that the function of the court should end when it discovers and declares what the decedent in fact did, and not what the court believes he ought to. have done. In .view of the record and the law applying thereto, it seems that Kelly’s agreement with John Clark’s father should be specifically enforced. In Peterson v. Bauer, 83 Neb. 405, it is well said: “Whether an oral contract to devise realty shall be enforced by specific performance after it has been performed by plaintiff depends Ripon the facts and circumstances of each case.” This lone and childless man had good reason to look upon Clark as the logical and the natural object of his bounty. And this aside from the fact that he wras the only kinsman who was the companion of his middle age and the support of his declining years. Under the rule, John Clark may not speak for himself, but 21 years of faithful service and every declaration of James Kelly speaks for him.
The argument that the relatives, “some of them very well-to-do citizens,” never heard of the 1891 contract upon which Clark relies until this suit was commenced, if established, would be corroborative of Kelly’s declarations of his lack of interest in them. But the record shows that by counsel’s statement the relatives knew before October 1913 that Clark claimed the entire Kelly estate. The record contains nearly 1,500. pages. More than 40 witnesses testified, and of these 21 by deposition, so that as to them our opportunity *230to judge of their qualifications as witnesses equals that of the trial court.
I respectfully submit that neither the record nor the law seems to sustain the opinion that has been adopted by the majority.