The opinion of the Court was delivered by Mr. Justice Gary.
In 1892, the plaintiff and her niece, Mrs. A. Viola Neblett, entered into an agreement to make mutual wills, leaving the bulk of the property of the one to the other. The plaintiff performed her part of the contract, but Mrs. Neblett died in 1897, making a disposition of her property by will different from that mentioned in the agreement. This is an action to enforce specific performance of said agreement. His Honor, Judge Klugh, makes a de*575tailed statement of the facts in his decree dismissing the complaint.
The plaintiff appealed upon numerous exceptions, and the respondents gave notice of additional grounds, upon which they would ask that the decree be sustained. This Court agrees with the Circuit Judge, in his findings of fact and conclusions of law, except as to the fourth clause of section 4 and the fourth clause of section 17 of the statute of frauds. This disposes of all the exceptions except those relating to these clauses.
1 The fourth clause of section 4 (Rev. Stat., sec. 2151) is as follows: “No action shall be brought * * * upon any contract on sale of lands, tenements or hereditaments, or any interest in or concerning them, * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” In his decree the Circuit Judge says: * * * “by the allegations of the complaint and by the evidence, Mrs. Neblett’s estate consists solely of personalties.”' The only one of the respondent’s additional grounds relating to the kind of property Mrs. Neblett owned at her death is the seventh, which is as follows: “His Honor erred in holding that it is uncertain from the evidence whether Mrs. Neblett owned any land at the time of her death, at which time alone the agreement speaks, it being respectfully submitted that the agreement speaks from the time it was entered into, at which time the evidence does show that Mrs. Neblett owned real estate.” It will be seen at a glance that it was not the object of this additional ground to raise the question whether Mrs. Neblett owned any land at the time of her death, but to complain of error on the part of the Circuit Judge in ruling that the agreement spoke at the time of Mrs. Neblett’s death, instead of at the time it was entered into. We will discuss the question with the fact established, that Mrs. Neblett did not own any real estate at the time of her death. The Circuit Judge *576says: “The making of the wills, in pursuance of the agreement, was, in one sense, complete performance of the agreement on both sides; but in its proper sense, that act was but the first step towards the performance of an agreement which could not be complete till the death of one of thepartiesshould render her will effective.” Thus showing that the agreement, while binding between the parties, was not intended to have any effect upon the property of the respective parties until one of them died, and then upon the property of the one so dying. From the time the agreement was entered into until one of the parties died, each had full control over her property. Neither was to have an interest in the property of the other until that time. As the agreement was not to have any effect upon the property other than that which the party first dying owned at the time of her death, and as Mrs. Neblett owned no real estate at the time, we fail to see how the clause under consideration has any application to the case.
2 The exceptions relating to the fourth clause of section 17 (Rev. Stat, 2152,) is as follows: “No contract for the sale of any goods, wares and merchandise, for the price of $50 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or giving something in earnest to bind the bargain, or in part payment, or so that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.” The case of Fogle v. Church, 48 S. C., 86, and the authorities therein cited, show that a party may enter into a valid agreement to dispose of his property by will, and specific performance will be decreed as in other proper cases. The question, then, is whether the plaintiff is precluded by the foregoing section from proving the agreement. The authorities relied upon by the respondents show (and the principle is well settled) that performance by one of the parties will take a case out of the statute, when non-compliance with the agreement by the other party would place him in such a position as to be a fraud *577upon his rights, unless specific performance was decreed. They contend, however, that the plaintiff did not suffer any injury, and that she was in the same condition as to her property rights, when Mrs. Neblett died, as when the agreement was entered into. Net us see'. ‘ When the agreement was entered into in 1892, the plaintiff was then far advanced in life, being more than sixty years of age, as she is now more than seventy years. The plaintiff, under the agreement, bequeathed to Mrs. Neblett a specific legacy of $10,000, to be paid before any other legacies, and after bequeathing certain other legacies, willed to her the residue of her estate. If the plaintiff had died before Mrs. Neblett, she would have received at least as much as $10,000 from the plaintiff’s estate. She, therefore, had the benefit of what might be termed the risk from 1892 until 1897. If Mrs. Neblett had taken out a policy of insurance on her aunt’s life for $10,000, it would have cost her a large sum of money if any company would have taken such a risk, as she was then very old and infirm. Yet Mrs. Neblett received the benefit, during that time, of what was equivalent to a policy for that amount or even more. It will not do to say that she received no benefit as the plaintiff did not die, any more than it would lie in the mouth of a man who paid his premium of insurance with a note to say there was a failure of consideration as he did not die or his property was not burned. It is impossible to1 make an exact calculation as to the extent to which Mrs. Neblett was benefited, because she not only was to receive the specific legacy of $10,000, but also the residue of the estate which was always uncertain, and of course the plaintiff did not at all times have the same amount of property on hand. As this benefit cannot be valued with exactness, and as it would be a fraud upon the rights of the plaintiff to allow Mrs. Neblett to receive it without accounting therefor, equity will decree specific performance.
The respondents rely upon the case of Izard v. Middleton, 1 DeS., 116. This is a case in which there was an agreement to make mutual wills. In the report of the case we find the *578following: “The Chancellor then proceeded as follows: ‘There are several points to be considered in this case. First. Is it within the statute of frauds ? If not, is there, secondly, sufficient parol proof of the agreement? Thirdly. Has there been a performance of the agreement by either of the parties?’ * * * The words of the statute which apply to this case are ‘or upon any agreement which is not to be performed within the space of one year from the making thereof, unless in writing and signed, &c.’ ” This is the only clause of the statute that was considered, and it is only necessary to refer to the case of Walker v. R. R. Co., 26 S. C., 88, and the authorities therein cited, see that the Chancellor’s construction of the statute was erroneous. The Court decided the second and third points against the complainant and dismissed his bill. There is nothing in the case just mentioned conflicting with our conclusion. But even if the performance by the plaintiff of her part of the contract did not take the case out of the statute, the retention of benefits by Mrs. Neblett would raise an implied agreement to make compensation for them, and resort might be had to the original agreement for the purpose of determining the kind of compensation contemplated by the parties. Carter v. Brown, 3 S. C., 298. It is true, this Court cannot decree that a willl shall be made; but, as was said in the case of Fogle v. Church, it can determine that the plaintiff is equitable owner, and entitled to be clothed with the legal title to all the property which she would have received if the will had been made, and it so adjudged.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for such further proceedings as may be necessary to carry into effect the views herein announced.
Upon filing of petition for rehearing on April 26, 1900, the remittitur was stayed until May 9, 1900, when the petition was refused in the following order
PER Curiam.
*5793 *578After careful consideration of this peti*579tion, we do not find that any material fact or principle of law has either been overlooked or disregarded ; and hence there is no ground for .a rehearing. It is, therefore, ordered, that the petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.