Magruder delivered the opinion of the court:
The weight of authority is in favor of the position, that a man may make a valid agreement to dispose of his property in a particular way by will, and that such contract may be enforced in equity after his decease against his heirs, devisees or personal representatives. (22 Am. & Eng. Ency. of Law, p. 974, and cases cited in note 2; Schouler on Wills,—2d ed.—sec. 454; Waterman on Specific Per. of Contracts, sec. 41; Fry on Specific Per. —3d ed.—sec. 223; Weingaertner v. Pabst, 115 Ill. 412). But such contracts are looked upon with suspicion, and are only sustained when established by the clearest and strongest evidence. (Ibid.) There is a want of harmony among the decisions in regard to the enforcement of such contracts when they are oral, and in regard to the scope and applicability to them of the Statute of Frauds. Without entering into a discussion of the authorities upon the subject, we regard the case at bar as governed by the recent decision of this court in the case of Pond v. Sheean, 132 Ill. 312.
In the Pond case, a person, having no children of his own, took an infant daughter of a relative of his wife to raise as a member of his family, and promised orally, with his wife’s consent, that, if the child’s father would permit her to become a member of his family, and assume the name of her adopter, and allow her to live with the family of the latter, he would, on his death and that of his wife, give the child all the property he might own; the contract was fully performed by the child and her father; she lived with her adopter from the time she was four years old until she reached the age of twenty-nine years, and was married, rendering, during all this time, the same services as though she was an own child; but it was there held, that a court of equity would not enforce a specific performance of the oral contract; that the agreement to make provision for the child by will was, so far as the real estate was concerned, an agreement for the sale of such real estate; that, as the agreement was merely verbal and the child never obtained possession of the property under it, it was void under the Statute of Frauds; that payment of the purchase money without taking possession is not sufficient to take such a case out of the Statute of Frauds; and that a court of equity will not decree the specific performance of a parol agreement to convey lands where the purchaser has not entered into possession under the contract.
Here, the adoption of the plaintiff in error by her grandmother did not require a change of name, because her name, as well as that of the grandmother, was Dicken; nor was her relation, as expectant' heir of her grandmother in the event of the latter’s death without making a will, changed by the adoption; because, as the only child of her deceased father, she would have inherited one-fifth of the estate from her grandmother, if the latter had died intestate, without any legal act of adoption; it was not necessary to adopt her to make her the heir of her grandmother; as adopted child she would inherit no greater .interest than would have descended to her as grandchild. As the grandmother only lived about six months after the adoption, she received but little from the plaintiff in error in the way of services or companionship. But, even if the formal and perfected adoption was the consideration for the agreement alleged in the bill, and the deceased received and accepted such consideration, still the agreement was not removed from the operation of the Statute of Frauds, any more than the payment of purchase money would have relieved it from such operation, because no possession was taken of the real estate by the plaintiff in error.
Counsel for plaintiff'in error claim, that the Pond case is different from the present case upon the ground that, here, there were proceedings under the statute resulting in a legal adoption, while, there, no formal adoption took place. We regard this distinction as immaterial. The services of Mrs. Pond for twenty-five years in the case cited constituted a consideration as valuable as is a mere formal act of adoption. The material circumstance in the case at bar, as it was in the Pond case, is, that no possession was taken of the land under the contract, and, therefore, the contract was subject to the operation of the statute.
A further distinction is sought to be drawn between the two cases. It is said that, in the Pond case, the child was not a natural heir of the party making the promise, while, here, by the death of her father, plaintiff in error, as his only child, was entitled to a child’s share in the estate of the deceased grandmother, if she made no will; that the bill, there, sought to have property given to .the child, which, by the course of descent, would go elsewhere, while, here, plaintiff in error does not seek anything more than the law of descent would give her, if the will of her grandmother should be set aside; and that the contract here is not one by which the decedent promised to devise something, but one by which she promised to allow the law of descent to distribute her property so far as plaintiff in error was concerned.
The contract, as set up in the bill, was one, in which the deceased is alleged to have verbally contracted, not with plaintiff in error, but with the guardian and mother of plaintiff in error, that the deceased would make no will, which would deprive plaintiff in error of any portion of the estate, which she would take as heir if there was no will. The deceased unquestionably had a right to make a will, and leave her property to others than her children or grandchildren; she had a right to leave it to whom she pleased. It is not alleged, that she contracted to make no will, but not to make a will giving plaintiff in error less than the law would give her. The contract was, in substance and effect, a contract that, if she made a will, she would make a will giving a certain portion of her estate, which consisted of realty and personalty, to the plaintiff in error. Such a contract is the same as though she had agreed that, if she made a sale of her real property, she would sell it to plaintiff in error. We apprehend, that there is no material difference, so far as the application of the Statute of Frauds is concerned, between an oral agreement by A to sell land to B at a certain price, and an oral agreement by A that, if he made any sale of his land at all, he would sell it to B at a certain price. Both of such oral contracts -of sale are within the Statute of Frauds. (Farnham v. Clements, 51 Me. 426).
If the verbal contract set up in the bill is not a verbal contract to devise to plaintiff in error a certain portion of her grandmother’s estate, or, what is equivalent thereto, a verbal contract to make sale to her of a certain portion of the estate, then it is difficult to see upon what theory plaintiff in error claims to be entitled to the relief prayed for in her bill. The bill prays, that the oral contract therein set forth may be enforced against the defendants. By the will of the testatrix the title to the realty has passed to the defendants, her surviving children; and an enforcement of the contract against them would require them to convey to plaintiff in error the portion of the realty claimed by her. But this can only be done .by charging the land in the hands of the defendants with a trust in favor of plaintiff in error. The theory, upon which the courts enforce an agreement to execute a will in a certain way against the representatives and estate of the party who makes the agreement, is “to construe such an agreement, unless void under the Statute of Frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a trust upon it in favor of the promisee, and to enforce such trust against the heirs and personal representatives'of the deceased.” (Bolman v. Overall, 80 Ala. 451; 3 Parsons on Contracts, marg. page 406).
The trust, which is fastened upon the property in such case, will necessarily be a trust growing out of a contract of sale. “If an owner of real estate contracts to sell it, he becomes a trustee of the legal title for the vendee; and if he dies before conveying the legal title, * "* * the heir, in case it descends, and the devisee, in case it is devised, may be called upon to convey it to the vendee.” (1 Perry on Trusts, sec. 342). Such contract of sale, however, in order to affect land with a trust in favor of the vendee or promisee as against the vendor or his heirs or devisees, must be in writing, or attended with such acts of part performance as take it out of the Statute of Frauds. There are no such acts in this case. Nor can it be said that there is any trust growing out of fraud on the part of the deceased or the defendants, because no 'fraud is charged in the bill.
Even, if the contract here is,- as counsel for plaintiff in error contend, a contract by which the deceased promised to let the Statute of Descents have its operation, and not a promise to make a devise in a particular way, it is, nevertheless, a merely verbal agreement, and, as such, could not have the effect of fastening a trust upon the real estate devised to the defendants. A trust, which affects land, must be in writing. (Tyler v. Tyler, 126 Ill. 525). Under “our Statute of Frauds, all trusts shall be created or evidenced by writing, except resulting trusts or else they are void.” (Hovey v. Holcomb, 11 Ill. 660).
It has been said, that a court of equity will sometimes interfere to enforce a verbal contract, void by the Statute of Frauds, where there have been such acts of performance by the party asking relief, that he or she would suffer an injury amounting to a fraud by the refusal to execute the agreement. (Wallace v. Rappleye, 103 Ill. 229; Pond v. Sheean, supra). No act of performance is alleged in the bill except the act of effecting a statutory adoption. This act would not justify a court in holding, that plaintiff in error has suffered an injury, amounting to fraud unless she is granted relief. Non constat that she was any worse off after the adoption than she was before.
The fact, that the oral agreement, set up in the bill, may include personal as well as real estate, does not take it out of the Statute of Frauds as to such personal estate. Being in part for a devise of land, and not being evidenced by any writing signed by the testatrix, it is within the statute; and as the contract is indivisible and fails in part, the whole fails. (Pond v. Sheean, supra; Ellis v. Cary, 74 Wis. 176).
It is further urged that, in order to take advantage of the Statute of Frauds, it must be pleaded, or in some way set up at the trial, or it will be deemed to have been waived; and that it cannot be taken advantage of by demurrer to the bill.
We think that, in the present case, the question, whether the contract is within the Statute of Frauds, can be raised by demurrer. Where a bill shows affirmatively that a contract or promise to make a will is not in writing, the defense of the Statute of Frauds may be raised by demurrer. (Manning v. Pippen, 86 Ala. 357). The bill here alleges that Serena Dicken verbally contracted.'
Where the bill states facts, which are relied upon as part performance for the purpose of taking the oral agreement out of the Statute of Frauds, and a demurrer is filed which admits such facts, the court must determine whether the facts relied upon do constitute part performance. (Van Dyne v. Vreeland, 11 N. J. Eq. 378). And when the bill discloses an oral contract without alleging facts which would avoid the statute as a defense, advantage may be taken of the statute by demurrer. (8 Am. & Eng. Ency. of Law, p. 746). Here, the adoption, set up as part performance, does not amount, under the decisions in this State, to such part performance as will avoid the statute as a defense. The defense of the Statute of Frauds may be taken by demurrer, where it appears from the face of the bill, as it does here, that the case stated is within the statute. (Story’s Eq. Pl.—9th ed.—sec. 762, note a).
We think that there, was no error in sustaining the demurrer and dismissing the bill. The decree of the circuit court is, accordingly, affirmed.
Decree affirmed.