This is an appeal from the allowance of a claim in favor of appellee and claimant against the estate of Chauncey H„ *910Allen, deceased, based upon an alleged verbal promise of the said deceased to pay $25 per month or see that that amount was paid if appellee would consent to the entry of an allowance and award of $25 per month for the support and maintenance of minor children of appellee, and Amos C. Allen in an action in the district court for Lincoln County, Nebraska, wherein appellee had obtained a divorce from Amos C. Allen. In the district court the claim was allowed and judgment rendered in favor of appellee. From this judgment the executor of the estate of Chauncey H. Allen has appealed.
It is disclosed by the record that on or about July 3, 1929, Jane Steen Allen and Amos C. Allen, a son of Chauncey H. Allen, were married. They were divorced in 1935 or 1936 and remarried on May 22, 1939. Appellee procured a second divorce from Amos C. Allen in the district court for Lincoln County, Nebraska, July 2, 1940. Three children were born of the first marriage. In the decree no alimony was awarded and no allowance made for. the support of the children.
By written stipulation' dated March 24, 1942, appellee and Amos C. Allen agreed that a judgment might be entered in the divorce action against Amos C. Allen for the support and maintenance for $25 per month beginning April 1, 1942, until the further order of court. An order was entered in conformity with the stipulation, which was filed on March 27, 1942.
Chauncey H. Allen died in March 1945. As already pointed out the action is against his estate.
The action was commenced by the filing of a claim in the county court of Scotts Bluff County, Nebraska, by the appellee herein. The claim recited the details already herein set forth as to the marriages and divorces of appellee and Amos. C. Allen, the facts as to minor children, the stipulation for entry of award for support and maintenance of minor children, the entry of allowance and judgment, and charged that Amos C. Allen had failed to make payment of *911any installments except the first of $25 and that all other installments were due and unpaid.
Appellee alleged that all of the due and unpaid installments and installments to become due were a charge against the estate of Chauncey H. Allen, deceased. Her pleaded contention in this respect was the following: "That prior to entering into said stipulation and prior to the entry by the court of the award of support money as aforesaid and as an inducement for this claimant to agree to accept said sum for the support of said children, the deceased, Chauncey H. Allen, promised, promised and agreed with this- claimant that he would personally pay or see that said installments were paid and represented that it would be an advantage to this claimant to accept a smaller amount than the court might award in case the" matter was contested and be certain of obtaining the amount of twenty-five dollars ($25.00) a month.”
To the claim objections were filed. The objections are five in number but for the purposes of this opinion it only becomes necessary to say that in them was contained a general denial and an allegation that the claim is void and unenforceable against the estate.
A trial was had in the county court which resulted in a denial of the claim. From the judgment of the county court an appeal was taken to the district court. The case was tried in the district court on the same pleadings as in the county court.
In the district court the case was tried to a jury. At the conclusion of appellee’s case the executor' moved for a directed verdict which was overruled. At the conclusion of all of the evidence the appellee moved that the court discharge the jury and that a judgment be rendered in her favor or in the alternative that the jury be directed to return a verdict in her favor for all amounts claimed to be due. Thereupon the executor moved for a dismissal of the action or in the alternative that a verdict be directed in his, favor. On this joinder of motions for directed- verdict tha *912court properly discharged the jury and proceeded to a determination upon the issues presented.
“Where both parties at the close of all the evidence, without reservation, move for a directed verdict, each invites the court to discharge the jury, determine the facts, and apply the law thereto.” Fidelity & Deposit Co. v. B. Grunwald, Inc., 129 Neb. 749, 262 N. W. 831.
The district court determined the issues in favor of apr pellee herein and rendered judgment in her favor and against the estate for $1,156.93, and the executor was ordered and directed to retain sufficient funds to pay future monthly installments of $25 each beginning February 1, 1946, and ending when the youngest child shall become of age or self-supporting or the dependency for some other reason of all of the said minor children shall cease, whichever event occurs first, or until there has been such a change of conditions of the parties as would warrant a court of competent jurisdiction to relieve the estate of further future payments and until such order has been rendered and become final.
A motion for new trial was filed and overruled. It is from this judgment and the order overruling the motion for new trial that the executor has appealed.
In the executor’s brief are found nine assignments of error. Only a part of them require discussion. The first to be considered herein is one wherein it is contended that the court erred in entering a judgment in favor of the claimant which is wholly unsupported by the evidence.
As has been pointed out by quotation from the claim the action is predicated on an allegation that claimant was induced to agree to accept $25 per month under an order which was to be entered against Amos C. Allen in the divorce case by the promise of deceased that he would personally pay the installments or see that they were paid.
Although apparently the trial court decided the case on the assumption that there was an agreement entered into between deceased and appellee with respect to accept*913anee of $25 per month for child support yet an examination of the bill of exceptions contains no evidence to support the assumption. The only evidence relating to any kind or character of agreement by Chauncey H. Allen to support or contribute to the support of the minor children of appellee and Amos C. Allen is found in the testimony of Dr. C. J. Steen, father of the appellee. There is no word therein to indicate that Chauncey H. Allen made any offer to contribute to the support of the minor children with reference to a stipulation signed or to be signed, or any hearing, or any proposed order to be entered in the district court for Lincoln County, Nebraska, or anywhere else. Furthermore, there is no direct evidence or evidence from which a legal inference could be drawn that Chauncey H. Allen ever at any time knew of any proposed stipulation or order, or the existence of either after they were respectively signed and entered. The evidence bearing on this subject is the following and it will be observed that nowhere in it is found any’ reference to a stipulation or other proposed agreement, or any kind or character of court order: “Q — Will you state as nearly as you. can, Doctor, what he said, what you said and what Jane said — give us the conversation? A— Jane told him that she should have some support for the children, and he agreed with her, and she was asking for more money — in fact, she wanted $75.00 a month, $25.00 for each one of the children. * * * Q — Don’t say what she was wanting, but say what was said, Doctor. A — All right. Mr. Allen said he would be responsible for the payment of $25.00 each month to her for the support of the children. Q — Did he say anything about the $75.00? * * * A — His only mention of the $75.00 was that it was in excess of what he could affori to pay. * * * Q — Did he say anything about why he wanted this support money reduced or anything concerning that? * * * A — No, he did not. Q — After discussing it, what did he finally say he would do? * * * A — He said that Jane could depend upon the receipt of so much — $25.00—each month. * * * Q — Did Mr. Chauncey *914Allen make any statement as to why he thought Jane should reduce her demand to $25.00 per month? * * * A — Yes. He felt that if she would reduce it she would be sure to receive the amount that was agreed upon. * * * Q — Well, did he make any explanation of that in your presence ? * * * A— Mr. Allen stated several times he .felt an interest and a love for the children; he expressed the knowledge that he did have a duty and an obligation there. * * * A — He said' that he did have an interest and love for his grandchildren, and he intended to see that they were partially provided for. * * * Q — I will ask you, doctor, if you were asked the question, ‘What did he say about that?’ * * * Q — And if you didn’t answer — that is on Page 15 — ‘He would be willing to make a contribution each month for the support of the children, and he stated, also, that he figured $25.00 would be a fair figure in this contribution and he would assume the responsibility for this contribution. No time was mentioned as to the limit, however.’? A — Yes, I did make that answer. * * * Q — -And was that answer true, doctor? A — Yes. Q — I will ask you if you didn’t also testify in connection with this examination Mr. Reed has asked you about---* * * Q — ‘Was there anything else said that you remember about this support money and what he was going to do--what Chauncey Allen was going to do, if anything?’ And did you not answer, ‘He. was going to see that it would be paid regularly:’? A — Yes, I made that reply. Q — Is that true? A — That’s true.”
Therefore there having been no evidence in proof of the existence of the agreement relied on as a basis for recovery it would appear that the trial court erred in allowing the claim in favor of the appellee.
Assuming however,' as thé trial court did, that there was evidence of the agreement contended for by appellee in her pleadings, still that would not make'the judgment rendered properly available to her. The judgment would not be properly available to her' since the' agreement, if made, was unenforceable for the reason that it was one inhibited by section *91536-202, R. S. 1943, which is one of the sections of what is commonly referred to as the statute of frauds. The pertinent part of the section is the following: “In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith: (1) Every agreement that, by its terms, is not to be performed within one year from the making thereof; (2) every special promise to answer for the debt, default, or misdoings of another person; * *
It will be noted that the pleaded agreement was not in writing. The pleaded promise, if made, was to answer for the debt or default of Amos C. Allen.
This statutory provision has been considered on numerous occasions by this court and its meaning has not been extended or expanded by interpretation. Recent cases are Grimes v. Baker, 133 Neb. 517, 275 N. W. 860; Johnson v. Anderson, 140 Neb. 78, 299 N. W. 343.
The appellee contends that the promise here is without the statute of frauds and is not controlled by it. With this contention we cannot agree.
The case of Johnson v. Anderson, supra, contains a statement of the essentials necessary to take an oral promise to answer for the debt or default of another out of the inhibition of the statute of frauds. In the-opinion it was said in interpretation and application of this statutory provision: “In the present case the oral promise as claimed was, in effect, to pay a primary debt of another antecedently contracted, and no new consideration moved to the promisor. Under these circumstances, Tt is said that a consideration to support a promise, not in writing, to pay the debt of another must be of a peculiar character, and must operate to the advantage of the promisor, and place him under a pecuniary obligation to the promisee independent of the original debt, which obligation is to be discharged by the payment of that debt.’ ” The inside quotation, which is approved, is from 25 R. C. L., § 79, p. 495.
*916In applying the test of that pronouncement to the case at bar it becomes clear that the alleged agreement comes within the inhibition of the statute of frauds.
The promise was to pay the debt of another and there was no new consideration, in truth, there was no consideration at all flowing to the deceased, unless it may be said, as appellee substantially contends, that the promise to pay was in lieu of an obligation imposed upon him by statute to support pauper grandchildren out of which advantage flowed to the deceased.
The two sections of the statute to which reference is made are the following:
“Every poor person, who shall be unable to earn a livelihood in consequence of an unavoidable cause, shall be supported by the father, grandfather, mother, grandmother, children, grandchildren, brothers or sisters of such poor person if they or either of them be of sufficient ability. Every person who shall refuse to support his or her father, grandfather, mother, grandmother, child or grandchild, sister or brother, when directed by the county board of the county where such poor person shall have a legal settlement, whether such relative shall reside in the same county or not, shall forfeit and pay to such county board, for the use of the poor of the county.rendering care, such sum as may be by such county board adjudged adequate and proper to be paid, not exceeding ten dollars per week for each and every week for which they or either of them shall fail or refuse, to be recovered in the name of such county board, for the use of the poor aforesaid, before a justice of the peace or any other court having .jurisdiction; Provided, whenever any persons become poor persons from intemperance or any other bad conduct, they shall not be entitled to support from any relative except parent or child. Such poor person entitled to support from any such relative may bring an action against such relative for support in his or her own name and behalf.” § 68-101, R. S. 1948.
*917“The children shall first be called upon to support parents, if there be children of sufficient ability; and if there be none of sufficient ability, the parents of such person shall next be called upon; and if there be no parents nor children, the brothers and sisters shall be next called upon; and if there be no brothers nor sisters, the grandchildren of such poor person shall be next called upon, and then the grandparents; Provided, married females, while they live with their husbands, shall not be liable to a suit for maintenance beyond the interest or income of the estate of such married female held in her own right.” § 68-102, R. S. 1943.
It will be observed that in these sections provision is made whereby a grandparent may become obligated to support his or her pauper grandchildren. It cannot be said though that the statute itself fixes the liability. In Howard County v. Enevoldsen, 118 Neb. 222, 224 N. W. 280, regarding the conditions for fixation of liability pursuant to the terms of the statute, this court said: “The right of the plaintiffs to recover against the defendant is purely statutory, and to recover against him they must have established their right under the provisions of section 5140, Comp. St. 1922 (now section 68-101, R. S. 1943), which provides:
“Under that statute, before a recovery could be had the plaintiffs were required to prove that Fredricka Petersen was a poor person unable to earn a livelihood in consequence of some bodily infirmity, idiocy, lunacy or other unavoidable cause.”
There is no evidence of fixation or attempted fixation of liability under these statutory provisions. We fail therefore to see how they can have any bearing on the matter of consideration for the alleged agreement which is the subject of this action.
This being true the agreement sued on, if there was such an agreement, was nudum pactum, it being without consideration. It is well settled by the decisions of this *918court that an agreement without consideration is nudum pactum and is unenforceable.
If it be assumed that a theory on which this case was presented was that an original oral agreement, different from the one pleaded, was entered into between deceased and appellee whereby deceased undertook to pay or see that $25 per month was paid for the support of the children involved, such an agreement would be unenforceable for the reason that it was without consideration and nudum pactum for the same reason and on the same basis as the pleaded agreement was so declared. It is not contended that there was or could be any other or different consideration for such an original oral agreement than for the one described in the pleadings.
The appellee therefore having failed to prove the existence of an oral agreement within the purview of her pleadings or the issues presented to the court the trial court erred in the first instance in refusing to sustain the motion of the executor made at the close of appellee’s case to direct a verdict in favor of the said executor. At the close of the evidence the court erred in refusing to direct a verdict in favor of the executor and render judgment in his favor.
The judgment of the district court is reversed with directions to the district court to dismiss the action.
Reversed with Directions.
Simmons, C. J., and Wenke, J., concur in the result.