Henrietta Varwig et al brought their action in the Mercer Common Pleas against Minnie Gertz, administratrix of the estate of H. Wm. Meyers, seeking specific performance of an oral contract to make a will bequeathing real and personal property to them. Varwig set forth that Meyers in consideration for the conveyance of certain real estate- to him, verbally promised the Varwigs that he would make a will and in the event he died unmarried and childless he would bequeath all his real and personal property to them.

The case was appealed to the Court of Appeals which entered judgment in favor of the Varwigs. From this judgment the case is filed in the Supreme Court on motion to certify and it is there contended:

That a verbal promise in the alternative to compensate a party by will, either in land or money is within section five of the statute against frauds and perjuries; and where the agreement sued on is within such statute, and it is fairly to be inferred from the petition that it is not in writing, the defense of the statute is available on demurrer. Havard v. Brouwer, 37 OS. 402. It is further claimed that this question is properly raised by demurrer for though, by demurring, the defendant admits the verbal agreement set up in the petition, he is nevertheless entitled to the protection of the statute, having claimed such protection in his demurrer which in this respect would be treated like an answer.

The fraud claimed in this case is the act of Meyer in revoking the will which he made at the time Varwigs conveyed their land to him (1909). This was a mere breach of an assumption it is claimed, that he would not revoke the wili. There is nothing alleged in the petition in which it is claimed that the .will was not revokable. On inspection of the will in question it advises the court that no reference is made to any contract. There is no- claim in the petition that there was any written memorandum made of any contract, because it is specifically stated therein that the contract was in parol.

It is claimed that the Court of Appeals judgment plainly indicated that the fact that Meyer took possession of the land deeded to him was such as to take the case of the statute of frauds. It is contended that it isn’t the party to be charged therewith that must take possession to take the case out of the statute, but it is the party claiming benefit of the oral contract who must take possession of the land sought to be recovered in order to take the case out of the statute.

It is the contract or some memorandum thereof signed by the party to be charged that must be in writing, therefore the fact that Meyer went into possession of the lands conveyed to him under his deed is of no consequence.