Suit by the appellant against the
The ruling of the court in sustaining the demurrer to thе complaint raises the only question presented to this court.
The complaint alleges that, on the — day of October, 1861, the plaintiff and the said William Hewitt entered into an agreement, by which Hewitt promised that if the plaintiff would continue to live with him as a work hand on his farm, and work and labor fоr him, he, the said Hewitt, in addition to the usual wages allowed tо work hands, would leave to him, said plaintiff, at his, said Hewitt’s, death, in his last will, the sum of $500. That the plaintiff, in accordance with said contract and agreement, continued tо work and labor on the farm of said Hewitt, in Union county, up to and until the time of the death of said Hewitt, mMay, 1864. That the last will of said Hewitt has been duly probated in the Common Pleas Court of Union county, and that the defendants are the executors thereof; but thаt there was no legacy, or provision therein, fоr the payment to plaintiff of said sum of $500, or any other sum, and that the said defendants, as the executors of said Hewitt, deceased, refuse to pay to, or аllow, the plaintiff the said sum. of $500. The complaint prays judgment for $500. A memorandum in writing is made a part of the complaint. It is not signed by either of the parties, but is allegеd to be in the handwriting of said Hewitt. It is as follows: “ The wages that Jrn. Bell is as high as any body would give him for a year, and he is among his friends, living with his uncle and aunt; his washing and mеnding are done; he has a horse to ride out when he wishes, and a kind family. I promise, further, to leave
This memorandum, not being signed by TIeioitt, leaves the agrеement resting in parol. Under proper proоf, it might, perhaps, be referred to on the trial, as evidence of the terms of the promise. The allеged agreement, having been performed by the рlaintiff, is not affected by the statute of frauds. It does not come within the fifth subdivision of that statute, (1 G. & II. 350,) for the reason that, by the death of Hewitt, it might have been performed within a year. Hill et al. v. Jamieson,
The parties were cаpable to contract, and must be presumed to have determined the adequacy of the cоnsideration for themselves. Duffy v. Shockey,
Under the averments in the complaint, the services of the plaintiff’ were not performed under a mere expectancy that Heioitt would leave him a legacy in Ms will, but under an express promise that Hewitt would leave Mm, by his last will, the sum of $500; and having fаiled to do so, we do not see why an action will nоt lie against his executors to recover the amount. Jacobson v. The Exs. of Le Grange, 3 John. 199; Patterson v. Patterson,
"We think the court erred in sustaining the demurrer to the complaint, and the judgment must, therefore, be reversed.
The judgment is reversed, with costs, and the cause remanded, with instructions to the court below to overrule the demurrer to the complaint.