delivered the opinion of the court.
On the caveat of the widow, defendant in error, the county court, and, on appeal, the district court, refused probate of the will of Joseph L. Frazier. William H. Frazier, his brother and proponent of the will, brings error.
It is claimed that the widow could not contest because she had consented in writing to the probate. Before probate, however, she protested and alleged that she signed the consent under misrepresentation by plaintiff in error. The issue upon traverse of this allegation was found in her favor, so this point cannot stand against her.
She claims that the will is invalid and that she is therefore entitled to the whole estate, since there are no children; the question then is whether the will is valid. It is as follows:
Dec. 9th, 1926.
Last Will and Testament of J. L. Frazier.
Know all men by these presents, that I, J. L. Frazier, being at this time in sound mind do desire and will that' my estate at my death be handled and disbursed iñ the *190following manner and I here and now pray and petition the Hon. County Court to so decree:
First, At my death my brother W. H. Frazier shall be appointed custodian and administrator without bond to handle all the estate. • My wife is to be given a sufficient amount each month for her needs and to provide for her comfort and care during her lifetime. This amount is to'be decided solely by my brother above mentioned. If said brother should die before my wife, then S. D. Draper will act in the same capacity and under same conditions. At my wife’s death it is my desire that all of my remaining estate be divided among my close friends during life. These friends are known to both my brother and Mr. Draper and they are to exercise their judgment as to the needs of said friends and to distribute the estate as their best judgment dictates. All my just debts are to be first paid.
My shot gun and hunting outfit is to be given to W. A. Wicker as a remembrance of the good times we have had together.
Any other personal effects will be handled as brother and Mr. Draper see fit.
Signed by me this 12/9/26. J. L. Frazier.
' Witness
Everett W. Brown
Willis A. Jackson.
The words “custodian and administrator” must be construed “executor.” The court found the testamentary capacity of the testator and the sufficient attestation of the proposed instrument and it is rightly agreed by the parties that, except the bequest of the gun and hunting outfit, the testator intended to create a trust. We will call it a trust.
As to the appointment of an executor and as to said bequest the instrument is a valid will whether the trust is valid or not. The refusal of probate was therefore an error. The defendant in error notes that the bequest was delivered to the legatee before the hearing in the *191county court, but that seems to us inconsequential. Tbe effect of tbe judgment is that tbe executor and legatee in delivering and receiving the bequest did -wrong, but, except that they should have awaited probate, they did right and are entitled to the protection of a judgment to that effect.
The serious question is, as to the trust. We think it is invalid for the reason that it violates the statute of wills. C. L. sec. 5187, requires wills to be in writing and the weight of authority is that oral instructions, whether given before or after the execution of the will, are in violation of that requirement. Olliffe v. Wells, 130 Mass. 221; Atwood v. R. I. Hospital Trust Co. 275 Fed. 513, 520, et seq., 24 A. L. R. 156, and cases there cited.
Whether the trust would be invalid for mere uncertainty we do not decide. Whether a legacy in trust to distribute among such friends of the testator as the trustee might choose would be valid we do not say, but that case would not be the case before us. Whether if the trustee had promised the testator to distribute according to oral instructions that promise could be enforced in equity, we do not say, but that case is not before us. See Olliffe v. Wells, supra, p. 224. What we do say is that the trust expressed in the will before us is invalid because its expression is partly oral and so does not conform to the statute of wills. The result is that as to all the estate except the legacy of the gun, etc., the testator died intestate and it belongs to the heirs, i. e. the widow. Thomas v. Anderson, 245 Fed. 642. Under the theory of some of the cases the trustee would take the title with a resulting trust for the heirs (Olliffe v. Wells, supra, p. 225); in this case, however, there is no title but merely a naked power that is conferred upon the executor.
On account of the bequest of the gun, the case must be reversed with directions to admit the will to probate, after which the estate will be administered as- intestate estate in accordance with this opinion. The administra*192tion of the gun, etc., and of any other part of the estate that may already have been accomplished in accordance herewith, may be confirmed.
Judgment reversed.