BROWN, J.
This case, like many others, illustrates the ambulatory character of wills. The devising of property by will is a right conferred by law. So far as the statute is concerned, Anna E. Dale had the right to change her mind with reference to the beneficiaries of her real property as often as she chose. We assume that her testament was the written expression of her free act and will. But it is asserted that the testatrix, in a previous will, had made the plaintiff her chief beneficiary and, for a consideration, had bargained away her right to alter that will. This may be true. The inquiry then is: Was the alleged contract entered into, and, if so, did it make the will of Anna E. Dale irrevocable?
1. Before a court of equity is empowered to exercise its discretion in this case, the cause must come before it with proper allegation of fact, supported by proof of a binding agreement that is clear, just, definite, reasonable and mutual in its obligations, in all its parts.
“Equity will construe the contract to devise strictly against the complainant so as not to interfere with freedom of testamentary disposition.” 5 Pomeroy’s Eq. Juris. (5 ed.), § 2168.
2. It has been judicially determined that persons may lawfully contract with reference to the disposi[610]*610tion, of property by will. Anna E. Dale was a competent person to execute a will; hence, she could lawfully enter into a valid agreement binding herself to make a particular testamentary disposition of her real property: In re Dale’s Estate, 92 Or. 57 (179 Pac. 274); Kelley v. Devin, 65 Or. 211 (132 Pac. 535); Woods v. Dunn, 81 Or. 457 (159 Pac. 1158); 25 R. O. L. 311. The defendants, however, deny the execution of the alleged contract and its performance, and invoke the protection of the statute of frauds.
A contract to devise real property by will is within the statute of frauds, and in order to remove such an agreement from the protection of the statute, and enforce its specific performance, there must be adequate proof to establish the contract to the satisfaction of a court of equity, accompanied by such evidence of part performance as will make it a fraud upon the plaintiff not to complete the contract.
3. The courts are practically a unit in holding that where a party has made a just and valid contract to devise property by will and the agreement has been clearly proved but breached by the promisor, equity will, in a proper case, specifically enforce it after the promisor’s death, by seizing the property which is the subject matter of the agreement and fastening a trust on it in favor of the person to whom the decedent agreed to give it by will: Kelley v. Devin, supra; Woods v. Dunn, supra; 5 Pomeroy’s Eq. Juris. (5 ed.), § 2168, and notes; also see extensive note with collection of authorities, Ann. Cas. 1914A, p. 399. It has been said that the enforcement is made in harmony with the principle that courts of equity will not allow the statute of frauds to be used as an instrument of fraud: Dowell v. Smith, 123 Wis. 510 (102 [611]*611N. W. 1, 3 Ann. Cas. 773); Wetmore v. White, 2 Caines Cas. (N. Y.) 87 (2 Am. Dec. 323).
It is written that:
“Where the situation is such that the promisee cannot be restored to his original position, to permit the promisor to repudiate his agreement under cloak of the statute of frauds, having received a substantial and valuable consideration, would be highly inequitable. Courts of equity, from the very beginning, have striven to maintain the statute in its integrity as a preventive of fraud, while strenuously repressing its use as a means of working frauds. A defendant will not be allowed to shelter his own fraud behind the statute of frauds, nor to use that statute as an instrument of fraud and wrong. When the statute is invoked to sanction a palpable fraud upon one who has performed his agreement and cannot be' restored to his original position, a court of equity must interpose its authority.” Teske v. Dittberner, 70 Neb. 544 (98 N. W. 57, 113 Am. St. Rep. 802).
4. The sufficiency of the complaint in the instant case is challenged by the defendants. The complaint does not allege possession under the contract, nor does this pleading aver facts showing that the consideration of the alleged contract was such that it comes under an exception to the general rule requiring an allegation of possession. The plaintiff failed to aver, likewise to prove, possession of the lot in controversy. From the facts alleged in the complaint an allegation of possession was necessary, and its absence is fatal. We do not hold that possession is necessary in all cases, to remove the bar of the statute of frauds.
As to what constitutes sufficient acts to operate as part performance much has been written, and it can only be determined from the circumstances of each particular case. It has been truly said that:
[612]*612“It is not a subject upon which it is easy to generalize.” Agnew v. Dumas, 64 Vt. 147 (23 Atl. 634).
In general, an allegation of possession, and proof thereof, are necessary to establish part performance, so as to remove the shield of the statute of frauds.
A rule of pleading is thus stated by this court:
“Since the agreement and its part performance are the essential prerequisites to be established by evidence at the trial, it is necessary to the maintenance of a suit of this kind that the complaint should set forth the oral contract, and also allege that pursuant to its terms possession of the premises was taken by the purchaser, and, if the parties are related, that the latter has made improvements upon the land: Barrett v. Schleich, 37 Or. 613 (62 Pac. 792); Zeuske v. Zeuske, 62 Or. 46 (124 Pac. 203); Thayer v. Thayer, 69 Or. 138 (138 Pac. 478).” Skinner v. Furnas, 82 Or. 414, 421 (161 Pac. 962).
To like effect is Riggs v. Adkins, 95 Or. 414, 420 (187 Pac. 303).
However, a qualification of the foregoing rule exists where the consideration for a promise to devise land is the rendition of services of such a nature or peculiar character that it is impossible to estimate their value to the promisor by any pecuniary standard, and where there was no intention to measure them by a pecuniary standard.
In Franklin v. Tuckerman, 68 Iowa, 572 (27 N. W. 759), an oral contract to devise land in consideration of services to be performed and support to be furnished was specifically enforced after performance by the promisee, although he was never in possession of the property covered by the contract. Like relief was granted by specific enforcement in Lothrop v. Marble, 12 S. D. 511 (81 N. W. 885, 76 Am. St. Rep. [613]*613626), although the promisee never was in possession. In this case the court, basing its holding upon numerous authorities, said:
“Money was not made the standard by which to measure the value of such care and attention as his pitiable condition would be likely to require for a period as uncertain as the duration of life, and his intention to convey the premises in consideration therefor should, in the absence of fraud or injury to anyone, govern the action of the court.
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BROWN, J.
This case, like many others, illustrates the ambulatory character of wills. The devising of property by will is a right conferred by law. So far as the statute is concerned, Anna E. Dale had the right to change her mind with reference to the beneficiaries of her real property as often as she chose. We assume that her testament was the written expression of her free act and will. But it is asserted that the testatrix, in a previous will, had made the plaintiff her chief beneficiary and, for a consideration, had bargained away her right to alter that will. This may be true. The inquiry then is: Was the alleged contract entered into, and, if so, did it make the will of Anna E. Dale irrevocable?
1. Before a court of equity is empowered to exercise its discretion in this case, the cause must come before it with proper allegation of fact, supported by proof of a binding agreement that is clear, just, definite, reasonable and mutual in its obligations, in all its parts.
“Equity will construe the contract to devise strictly against the complainant so as not to interfere with freedom of testamentary disposition.” 5 Pomeroy’s Eq. Juris. (5 ed.), § 2168.
2. It has been judicially determined that persons may lawfully contract with reference to the disposi[610]*610tion, of property by will. Anna E. Dale was a competent person to execute a will; hence, she could lawfully enter into a valid agreement binding herself to make a particular testamentary disposition of her real property: In re Dale’s Estate, 92 Or. 57 (179 Pac. 274); Kelley v. Devin, 65 Or. 211 (132 Pac. 535); Woods v. Dunn, 81 Or. 457 (159 Pac. 1158); 25 R. O. L. 311. The defendants, however, deny the execution of the alleged contract and its performance, and invoke the protection of the statute of frauds.
A contract to devise real property by will is within the statute of frauds, and in order to remove such an agreement from the protection of the statute, and enforce its specific performance, there must be adequate proof to establish the contract to the satisfaction of a court of equity, accompanied by such evidence of part performance as will make it a fraud upon the plaintiff not to complete the contract.
3. The courts are practically a unit in holding that where a party has made a just and valid contract to devise property by will and the agreement has been clearly proved but breached by the promisor, equity will, in a proper case, specifically enforce it after the promisor’s death, by seizing the property which is the subject matter of the agreement and fastening a trust on it in favor of the person to whom the decedent agreed to give it by will: Kelley v. Devin, supra; Woods v. Dunn, supra; 5 Pomeroy’s Eq. Juris. (5 ed.), § 2168, and notes; also see extensive note with collection of authorities, Ann. Cas. 1914A, p. 399. It has been said that the enforcement is made in harmony with the principle that courts of equity will not allow the statute of frauds to be used as an instrument of fraud: Dowell v. Smith, 123 Wis. 510 (102 [611]*611N. W. 1, 3 Ann. Cas. 773); Wetmore v. White, 2 Caines Cas. (N. Y.) 87 (2 Am. Dec. 323).
It is written that:
“Where the situation is such that the promisee cannot be restored to his original position, to permit the promisor to repudiate his agreement under cloak of the statute of frauds, having received a substantial and valuable consideration, would be highly inequitable. Courts of equity, from the very beginning, have striven to maintain the statute in its integrity as a preventive of fraud, while strenuously repressing its use as a means of working frauds. A defendant will not be allowed to shelter his own fraud behind the statute of frauds, nor to use that statute as an instrument of fraud and wrong. When the statute is invoked to sanction a palpable fraud upon one who has performed his agreement and cannot be' restored to his original position, a court of equity must interpose its authority.” Teske v. Dittberner, 70 Neb. 544 (98 N. W. 57, 113 Am. St. Rep. 802).
4. The sufficiency of the complaint in the instant case is challenged by the defendants. The complaint does not allege possession under the contract, nor does this pleading aver facts showing that the consideration of the alleged contract was such that it comes under an exception to the general rule requiring an allegation of possession. The plaintiff failed to aver, likewise to prove, possession of the lot in controversy. From the facts alleged in the complaint an allegation of possession was necessary, and its absence is fatal. We do not hold that possession is necessary in all cases, to remove the bar of the statute of frauds.
As to what constitutes sufficient acts to operate as part performance much has been written, and it can only be determined from the circumstances of each particular case. It has been truly said that:
[612]*612“It is not a subject upon which it is easy to generalize.” Agnew v. Dumas, 64 Vt. 147 (23 Atl. 634).
In general, an allegation of possession, and proof thereof, are necessary to establish part performance, so as to remove the shield of the statute of frauds.
A rule of pleading is thus stated by this court:
“Since the agreement and its part performance are the essential prerequisites to be established by evidence at the trial, it is necessary to the maintenance of a suit of this kind that the complaint should set forth the oral contract, and also allege that pursuant to its terms possession of the premises was taken by the purchaser, and, if the parties are related, that the latter has made improvements upon the land: Barrett v. Schleich, 37 Or. 613 (62 Pac. 792); Zeuske v. Zeuske, 62 Or. 46 (124 Pac. 203); Thayer v. Thayer, 69 Or. 138 (138 Pac. 478).” Skinner v. Furnas, 82 Or. 414, 421 (161 Pac. 962).
To like effect is Riggs v. Adkins, 95 Or. 414, 420 (187 Pac. 303).
However, a qualification of the foregoing rule exists where the consideration for a promise to devise land is the rendition of services of such a nature or peculiar character that it is impossible to estimate their value to the promisor by any pecuniary standard, and where there was no intention to measure them by a pecuniary standard.
In Franklin v. Tuckerman, 68 Iowa, 572 (27 N. W. 759), an oral contract to devise land in consideration of services to be performed and support to be furnished was specifically enforced after performance by the promisee, although he was never in possession of the property covered by the contract. Like relief was granted by specific enforcement in Lothrop v. Marble, 12 S. D. 511 (81 N. W. 885, 76 Am. St. Rep. [613]*613626), although the promisee never was in possession. In this case the court, basing its holding upon numerous authorities, said:
“Money was not made the standard by which to measure the value of such care and attention as his pitiable condition would be likely to require for a period as uncertain as the duration of life, and his intention to convey the premises in consideration therefor should, in the absence of fraud or injury to anyone, govern the action of the court. The case is clearly within the rule justifying courts of equity, in carrying into effect parol agreements, to convey real estate, after the full and faithful performance" of such service in consideration therefor, as this record discloses.”
To like effect is the holding of the court in Hall v. Gilman, 77 App. Div. 458 (79 N. Y. Supp. 303). See also Kelley v. Devin, supra.
Possession of the property is not a requisite where the consideration was personal care and services not measurable in money: Brinton v. Van Cott, 8 Utah, 480 (33 Pac. 218); Schoonover v. Schoonover, 86 Kan. 487 (121 Pac. 485, 38 L. R. A. (N. S.) 752, and note); Bryson v. McShane, 48 W. Va. 126 (35 S. E. 848, 49 L. R. A. 527); Franklin v. Tuckerman, 68 Iowa, 572 (27 N. W. 759); see, also, note, 15 L. R. A. (N. S.), p. 466 et seq.; Velikanje v. Dickman, 98 Wash. 595 (168 Pac. 465).
The question of specific performance of oral contract to devise or convey land in consideration of performing services or furnishing support, where no possession is taken, or improvements made, is the subject of notes to Grindling v. Reyhl, 15 L. R. A. (N. S.) 466, and Schoonover v. Schoonover, 38 L. R. A. (N. S.) 752. See 5 Pomeroy Eq. Juris. (5 ed.), § 2248, and cases in notes.
[614]*614In the case at bar as made by the pleadings, the complaint is deficient, in that it fails to aver that the plaintiff took possession pursuant to the alleged contract; nor does it allege facts showing an exception to the general rule hereinbefore referred to. In the absence of such necessary allegations and proof thereof, the evidence offered in support of the alleged part performance, such as paying taxes, making repairs upon the property, assisting with the living expenses of Anna E. Dale, and of services performed by plaintiff as testified to by certain witnesses, can be of no" avail to plaintiff. This is a family lawsuit, and the evidence shows that it could, and should, have been settled out of court. Family settlements are favored in equity: Kelley v. Devin, supra; Loughary v. Simpson, 75 Or. 219 (145 Pac. 1059); Goodin v. Cornelius et al., ante, p. 422 (200 Pac. 915).
This case is affirmed, without costs to either party in this court. Aeeirmed.
Burnett, C. J., and Harris, J., concur.