Schmucker, J.,
delivered the opinion of the Court.
This is an action upon an alleged oral agreement by an uncle to devise a child’s portion of his estate, consisting of real estate and personal property, to his nephew, if the latter would render certain services to him during the remainder of his life.
The uncle failed to make a will, but died intestate leaving surviving him one child and the issue of a deceased child. His estate consisted of several improved parcels of real estate and personal property valued at over $38,000, after the payment of debts and expenses of administration.
The appellee sued the administrators of the estate for damages, for the breach by the intestate of the alleged oral contract to devise to him a child’s portion of the estate, claiming that he was entitled to one-third of it, because that would be equal to the share of the surviving child of the intestate. There was no count in the declaration on a
quantum meruit
for the value of the services rendered by the appellee. The defendants demurred to the declaration and their demurrer having been overruled they pleaded, first, a denial of the making by their intestate of the contract sued on and, secondly,
plene administravit
as to the greater portion of the estate. The verdict and judgment below were in favor of the appellee as plaintiff.
There was evidence tending to prove that John B. Thirston, the uncle, about ten years prior to his death agreed with his nephew, the appellee, that if the latter would stand by him and do for him whatever services he requested for the remainder of his life he would at his death give a portion of his estate, equal to that of any of his children, to the appellee. There was also evidence tending to prove that the appellee entered into the agreement and rendered various services to his uncle during the remainder of the latter’s life.
The absolute owner of property can undoubtedly make a
valid contract for a good and sufficient consideration to execute a will giving a certain portion of his estate to another person.
Wilks
v.
Burns,
60 Md. 70. Such contracts, however, like those for the sale of real or personal estate
inter vivos,
are, when orally made, within the operation of the Statute of Frauds and their validity must be tested by its requirements.
Semmes v. Worthington,
38 Md. 317;
Mundorff
v.
Kilbourn,
4 Md. 459;
Whitridge
v.
Parkhurst,
20 Md. 62.
• The law does not look with favor upon agreements of this character and this Court has declared in reference to them, in
Mundorff
v.
Kilbourn, supra,
that, “the most stringent doctrines of the Court should be applied in such cases, especially where the alleged agreement is not in writing, as a protection against speculating arrangements sought to be enforced as contracts after one of the parties is no longer here to explain the conduct imputed to him and defend himself against charges of bad faith or fraud.” The Court has also given expression to similar views in like forcible terms in
Semmes
v.
Worthington,
38 Md. 318, 319, and
Williams
v.
Shipley,
67 Md. 382.
The alleged contract in the case now before us is one of the kind passed upon in the cases to which we have referred, and it comes clearly within the operation of the Statute of Frauds. It is in essence a contract for the sale of real and personal estate. It matters not that the consideration was to be paid in services instead of money, for the statute will operate upon and affect the contract in the same manner whether the property is to be paid for “in money, services or anything else. ”
Wallace
v
Long,
105 Ind. 562. As to the real estate to be devised the contract before us is obviously within the fourth section of the statute, and, as it is an entire .contract upon one and the same consideration, it must under the settled rules of construction be held void under the statute as to both classes of property covered by it.
Brown on Statute of Frauds,
sec. 140,
et seq.; Pond
v.
Sheean,
132 Ill. 312;
Alexander v. Ghiselin,
5 Gill, 180;
Cooke
v.
Tombs,
2 Anstr. 420;
Dowling
v.
McKenney,
124 Mass. 478;
Thayer v. Rock,
13 Wendell, 53.
Being thus within the fourth section of the statute, this con
tract cannot be made the foundation of an action at law and is not sufficient to sustain the present suit for damages for its breach.
Lamborn
v.
Watson,
6 H. & J. 255;
Duvall
v. Peach,
1 Gill, 181. Even if it were to be treated as severable, the part of the contract relating to personalty would be within the prohibition of the seventeenth section of the statute, as the value of the personalty claimed to be covered by it far exceeds fifty dollars.
Nor is the situation relieved by the part performance of the alleged contract, assuming the proof to establish that fact, for the authorities are clear that the doctrine of part performance is peculiar to chancery and is not regarded at law to take a case out of the statute.
Brown on Statute of Frauds,
sec. 451,
et seq.; Dugan
v.
Gittings,
3 Gill, 162;
Adams
v.
Townsend,
1 Met. 483;
Dougherty
v.
Catlett,
129 Ill. 431. In
Pond
v.
Sheean, supra,
and
Austin
v.
Davis,
128 Ind. 472, the very kind of part performance proven in the present case was held insufficient to take a parol agreement to devise property in consideration of the services out of the statute.
Even if this were a proceeding in equity for the specific performance of the alleged contract set out in the
narr.
it is extremely doubtful whether the evidence as to part performance appearing in the record would measure up to the standard set by the authorities, Lord Hardwicke said in
Lacon
v.
Mertins,
3 Atk. 4, that the act relied on as part performance “ Must be such an act done as appears to the Court would not have been done unless on account of the agreement; ” and this Court has repeatedly said that such acts must be clear and definite and refer exclusively to the alleged agreement.
Mundorff
v.
Kilbourn,
4 Md. 462;
Whitridge
v.
Parkhurst, 20
Md. 85;
Billingslea
v.
Ward,
33 Md. 52;
Ches. & Ohio Canal Co.
v.
Young,
3 Md. 480;
Semmes
v.
Worthington,
38 Md. 318. The services appearing by the record to have been rendered by the appellee although considerable in amount and covering a period of some years were such as might well have been rendered by a nephew to an aged uncle without the existence of any contract in reference to them.
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Schmucker, J.,
delivered the opinion of the Court.
This is an action upon an alleged oral agreement by an uncle to devise a child’s portion of his estate, consisting of real estate and personal property, to his nephew, if the latter would render certain services to him during the remainder of his life.
The uncle failed to make a will, but died intestate leaving surviving him one child and the issue of a deceased child. His estate consisted of several improved parcels of real estate and personal property valued at over $38,000, after the payment of debts and expenses of administration.
The appellee sued the administrators of the estate for damages, for the breach by the intestate of the alleged oral contract to devise to him a child’s portion of the estate, claiming that he was entitled to one-third of it, because that would be equal to the share of the surviving child of the intestate. There was no count in the declaration on a
quantum meruit
for the value of the services rendered by the appellee. The defendants demurred to the declaration and their demurrer having been overruled they pleaded, first, a denial of the making by their intestate of the contract sued on and, secondly,
plene administravit
as to the greater portion of the estate. The verdict and judgment below were in favor of the appellee as plaintiff.
There was evidence tending to prove that John B. Thirston, the uncle, about ten years prior to his death agreed with his nephew, the appellee, that if the latter would stand by him and do for him whatever services he requested for the remainder of his life he would at his death give a portion of his estate, equal to that of any of his children, to the appellee. There was also evidence tending to prove that the appellee entered into the agreement and rendered various services to his uncle during the remainder of the latter’s life.
The absolute owner of property can undoubtedly make a
valid contract for a good and sufficient consideration to execute a will giving a certain portion of his estate to another person.
Wilks
v.
Burns,
60 Md. 70. Such contracts, however, like those for the sale of real or personal estate
inter vivos,
are, when orally made, within the operation of the Statute of Frauds and their validity must be tested by its requirements.
Semmes v. Worthington,
38 Md. 317;
Mundorff
v.
Kilbourn,
4 Md. 459;
Whitridge
v.
Parkhurst,
20 Md. 62.
• The law does not look with favor upon agreements of this character and this Court has declared in reference to them, in
Mundorff
v.
Kilbourn, supra,
that, “the most stringent doctrines of the Court should be applied in such cases, especially where the alleged agreement is not in writing, as a protection against speculating arrangements sought to be enforced as contracts after one of the parties is no longer here to explain the conduct imputed to him and defend himself against charges of bad faith or fraud.” The Court has also given expression to similar views in like forcible terms in
Semmes
v.
Worthington,
38 Md. 318, 319, and
Williams
v.
Shipley,
67 Md. 382.
The alleged contract in the case now before us is one of the kind passed upon in the cases to which we have referred, and it comes clearly within the operation of the Statute of Frauds. It is in essence a contract for the sale of real and personal estate. It matters not that the consideration was to be paid in services instead of money, for the statute will operate upon and affect the contract in the same manner whether the property is to be paid for “in money, services or anything else. ”
Wallace
v
Long,
105 Ind. 562. As to the real estate to be devised the contract before us is obviously within the fourth section of the statute, and, as it is an entire .contract upon one and the same consideration, it must under the settled rules of construction be held void under the statute as to both classes of property covered by it.
Brown on Statute of Frauds,
sec. 140,
et seq.; Pond
v.
Sheean,
132 Ill. 312;
Alexander v. Ghiselin,
5 Gill, 180;
Cooke
v.
Tombs,
2 Anstr. 420;
Dowling
v.
McKenney,
124 Mass. 478;
Thayer v. Rock,
13 Wendell, 53.
Being thus within the fourth section of the statute, this con
tract cannot be made the foundation of an action at law and is not sufficient to sustain the present suit for damages for its breach.
Lamborn
v.
Watson,
6 H. & J. 255;
Duvall
v. Peach,
1 Gill, 181. Even if it were to be treated as severable, the part of the contract relating to personalty would be within the prohibition of the seventeenth section of the statute, as the value of the personalty claimed to be covered by it far exceeds fifty dollars.
Nor is the situation relieved by the part performance of the alleged contract, assuming the proof to establish that fact, for the authorities are clear that the doctrine of part performance is peculiar to chancery and is not regarded at law to take a case out of the statute.
Brown on Statute of Frauds,
sec. 451,
et seq.; Dugan
v.
Gittings,
3 Gill, 162;
Adams
v.
Townsend,
1 Met. 483;
Dougherty
v.
Catlett,
129 Ill. 431. In
Pond
v.
Sheean, supra,
and
Austin
v.
Davis,
128 Ind. 472, the very kind of part performance proven in the present case was held insufficient to take a parol agreement to devise property in consideration of the services out of the statute.
Even if this were a proceeding in equity for the specific performance of the alleged contract set out in the
narr.
it is extremely doubtful whether the evidence as to part performance appearing in the record would measure up to the standard set by the authorities, Lord Hardwicke said in
Lacon
v.
Mertins,
3 Atk. 4, that the act relied on as part performance “ Must be such an act done as appears to the Court would not have been done unless on account of the agreement; ” and this Court has repeatedly said that such acts must be clear and definite and refer exclusively to the alleged agreement.
Mundorff
v.
Kilbourn,
4 Md. 462;
Whitridge
v.
Parkhurst, 20
Md. 85;
Billingslea
v.
Ward,
33 Md. 52;
Ches. & Ohio Canal Co.
v.
Young,
3 Md. 480;
Semmes
v.
Worthington,
38 Md. 318. The services appearing by the record to have been rendered by the appellee although considerable in amount and covering a period of some years were such as might well have been rendered by a nephew to an aged uncle without the existence of any contract in reference to them.
The Statute of Frauds was not set up by plea in this case but the making of- the alleged contract was categorically denied by the first plea and that was sufficient either at law or *n equity to entitle the defendant to rely upon it as a defense.
Billingslea
v.
Ward,
33 Md. 48;
Semmes
v.
Worthington,
38 Md. 317;
Dunphy
v.
Ryan.
116 U. S. 491;
Freeney
v.
Howard,
79 Cal. 525.
Although the appellee is not entitled to maintain the present action upon the alleged contract, he can recover upon a
quantum meruit
the value of the services rendered by him to his uncle, for from services of this kind, even when rendered in pursuance of a contract within the statute by one party and accepted by the other, a right to compensation arises.
Ellicott
v.
Peterson's Exrs.,
4 Md. 491;
Baker
v.
Lauterbach,
68 Md. 70;
Wallace v. Long,
105 Ind. 526;
Emery v. Smith,
46 N. H. 151.
The appeal brings up for review the action of the Court in overruling the demurrer of the appellants to the declaration, as well as its action on the prayers and the rejection of the evidence set out in the first and second bills of exceptions.
The demurrer was probably overruled because although the case presented by the declaration was one which might have been open to the defense of the Statute of Frauds it did not appear until the pleas were filed that the appellants would •deny the existence of the contract and rely upon the statute as a defense. It was not necessary to allege in the
narr.
that the contract was in writing and therefore under the
narr.
as filed evidence might have been offered of a written contract or of such a memorandum in writing as would take the case out of the statute.
There was no error in the rulings of the Circuit Court upon the offers to introduce the rejected testimony.
The plaintiff offered six prayers and the defendants offered five. The Court granted the defendants’ fourth prayer and all of the plaintiffs prayers except the second, and rejected all the other prayers. All of the plaintiff's prayers, although differing somewhat in form, in substance instructed the jury
that if they found that the alleged contract had been made and that the plaintiff had performed his part of it he was entitled to recover to the extent of the value of the estate in the hands of the defendants which was admitted to be less than one-third of the whole estate. It is apparent from what we have said as to the legal principles applicable to the issue formed by the pleadings in this case that these prayers should have been rejected. Of the defendants’ prayers it is only necessary to notice the first, which instructed the jury that under the pleadings there was no evidence in the case legally sufficient to entitle the plaintiff to recover and their verdict should be for the defendant. If, as we have already held, the Statute of Frauds formed a complete defense to the action instituted qs it was upon the contract, it is evident that this prayer should have been granted.
(Decided March 8th, 1901.)
The judgment will be reversed with liberty to the appellee to apply to this Court for the remanding of the case to permit him to so amend his pleadings as to declare in
assumpsit
for the value of any services rendered by him to his uncle at the request of the latter during his lifetime.
Judgment reversed with costs, with liberty to the appellee to apply for an order remanding the case.