Mr. Justice Bean
delivered the opinion of the court.
On September 12, 1904, the defendant commenced an action at law against the plaintiffs to recover possession of certain real property in the City of La Grande, alleging that he was the owner of a life estate therein, and entitled to its immediate possession. The plaintiffs answered at law, and at the same time filed a complaint in equity in the nature of a cross-bill, in which they alleged facts which they insist make them the owners in equity of the defendants’ interest in the property, and estop him from asserting any claim thereto. A demurrer to the cross-bill was sustained, and, plaintiffs refusing further to plead, it was dismissed, and they appeal.
*468The facts as disclosed by the cross-bill are, briefly, that Mary Biggers, the wife of the defendant, died on June 30, 1903, seised and possessed of the property in dispute, leaving a will by which she devised the same to the plaintiff Hattie. McCrary, and appointed the- defendant as the executor thereof; that thereafter the will .was regularly admitted to probate, and the plaintiffs, by the consent of the defendant, entered into possession of the property; that defendant, it is alleged, ought not to be permitted to claim or set up any interest in or right to the property, for, at the time the will was executed, the testator was suffering from a serious malady requiring a surgical operation; that she was informed by her physicians of the character of her disease, and of the probability of a fatal result of the operation; that she was desirous in case of her death that her property should go to her parents and her brother and sister, the plaintiff Hattie McCrary; that with the consent of her husband, the defendant, she coidd and would have transferred her property to her relatives- by convej^ances or other proper means, but was advised and induced by the defendant to believe that she could accomplish the same purpose, by a last will and testament; that defendant represented to her that he was possessed of ample means in his own right, and did not need or desire any part of her property or the use thereof, and should'not be considered at all in her will; that he advised and counseled her to omit from her will any provision for him in lieu of curtesy or otherwise, and represented to her that he would respect and carry into effect and operation any provisions of her will for the disposition of her property that she might make; that, relying upon such statements and representations and agreement of her husband, she made and executed her will, whereby she devised the real property in question to her sister; that after her death the defendant had the will probated, and was duly appointed executor thereof; that as such executor he put the plaintiffs in possession of the property, and thereby recognized their right to such possession.
From these facts it appears that Mrs. Biggers and the defendant her husband were seised in her right at the time of her death of an estate of inheritance in the land in dispute, and *469therefore the defendant is entitled to the possession of such land during his life as tenant by the curtesy, notwithstanding her will (B. & O. Comp, §§5544, 5547), unless he has become, in some manner known to the law, barred thereof. It is not alleged or contended that he ever executed any conveyance or instrument jointly with his wife or otherwise, which has such an effect. As we understand the plaintiff’s position, it is that the. defendant and his wife entered into an oral contract or agreement at the time the will was executed by which he agreed to relinquish or surrender his curtesy interest in her property, and that she made her will relying thereon. The gist of this contention is that by such contract or agreement the defendant clothed his wife with poAver and authority to dispose of her property free from his curtesy interest. Now, it has been held by this court that, when a husband or wife owns property in his or her own right, any inchoate right the other may have therein, such as tenant by the curtesj1' or by dower, cannot be the subject of a valid contract between them. It Avas so held in House v. Fowle, 20 Or. 163" court="Or." date_filed="1890-12-08" href="https://app.midpage.ai/document/temperance-house-v-fowle-6895715?utm_source=webapp" opinion_id="6895715">20 Or. 163 (25 Pac. 376), and again in Potter v. Potter, 43 Or. 149 (72 Pac. 702). The contract, therefore, between the defendant and his Avife for the relinquishment by him of his curtesy estate or interest in her property Avas void, and, of course, cannot be specifically enforced.
2. Nor, under the facts as stated, is he estopped from asserting such interest. His wife did not change her position in any Avay to her injury by reason of his representations or agreement. She could not have barred his curtesy by any means in her power, and therefore any statements or representations he may have made to her and any instruments she may have made in reliance thereon, could not estop him from asserting his legal rights. And the fact that he permitted the plaintiffs to go into possession of the property is of no consequence. The court will not enforce specific performance of a contract for the transfer of real property on the ground that one of the. contracting parties has taken possession thereof, when, as in this case, the contract is itself void and incapable of being enforced. The contract between the defendant and his wife for the relinquishment of his curtesy interest in her property was, as we have seen, void *470as against public policy, and could not become valid by the plaintiffs’ taking possession of the property. Nor does the fact that the will was admitted to probate on petition of the defendant, and his appointment as executor, operate as an estoppel against him. He does not claim to hold under the will, but independently of it, and the will could and did not devise his interest in the property as tenant by the curtesy.
It follows from these views that the decree of the court below must be affirmed, and it is so ordered. Affirmed.