¶1(dissenting).
¶2Admittedly, the trial judge was in a better position than is this court to correctly react to the testimony of the witnesses, in case of a conflict. However, as I view the evidence in this case, there appears to be therein only slight, if any, direct contravention.
¶3Plaintiff alleged an oral contract to leave the farm in question to him, to have been made in 1932. The opinion of the majority attacks plaintiff’s failure to secure a stipulation that the contract was made in that year. Such deficiency of proof is quite easily explained. Plaintiff has such a serious impediment of speech as to require that his testimony be taken by .stipulation. Defendants, naturally, could not be expected to stipulate to facts which they might only suspect, or be told, but not know, to be true.
¶4The majority also attacks plaintiff’s case for want of showing with definiteness the existence of the alleged oral contract, the time and place and circumstances of its inception etc.
¶5It is not contradicted that deceased was an “old bachelor” with whom plaintiff had lived a great part of the time over a long period, prior to the latter’s marriage. Plaintiff informed “Uncle Lee” he was going to be married and, after he had married, brought his bride to Lee York’s place *661in about 1932, and lived there, Lee York living with the couple as a member of their family.
¶6Later, in about 1942, the family moved some half mile or more away to the farm of plaintiffs parents-in-law, Lee York moving with them and continuing as a member of the family. After living there some two and a fraction years, the family again moved to another farm about half a mile away where they lived. Lee York residing with them, until about the spring of 1947.
¶7During all of the years since 1932, except two, plaintiff had continued to farm the Lee York land as a share-crop rent-paying tenant. During all of these years, Lee York had slept in one of plaintiff’s beds, eaten at his board, had his clothes washed and ironed by plaintiff’s wife and enjoyed the companionship in his declining years of plaintiff, “the nearest thing he had to a son,” and plaintiff’s wife and three children. However, “Uncle Lee” did return to his own house about once a week to stay overnight in order to maintain his right to ■“homestead tax-emption”.
¶8As to transactions personally had between plaintiff and deceased, the trial court properly found plaintiff to be an incompetent witness. Plaintiff’s wife also was determined to be an incompetent witness and properly so. Plaintiff, apparently failing in his efforts to prove an agreement to have been made and performance begun thereunder in 1932, then sought to prove that in 1947 an agreement had theretofore been ■made.
¶9Buster Porter, half-brother of plaintiff’s wife, was staying with the plaintiff’s family on the occasion when the incident hereinafter related occurred. At that time he was farming some land adjoining the farm1 where plaintiff’s family lived, on the west. Frank York, plaintiff’s brother, who was keeping some milch cows at plaintiff’s place, -came over that morning to milk. “Uncle Lee” went outside the house and met Frank York and Buster Porter and told them, “Buster, I want you and Frank to witness an agreement I made with Willie, and .Maudie.”
¶10Lee York, inside the house and in plaintiff’s living room,: and in thé presence of the plaintiff, his wife, his little son, Frank York, Buster Porter and plaintiff’s two daughters, then said, “I told them if they would move back on my place and stay with me the rest of my days, it was theirs when I was through.” This conversation was testified to positively and unequivocally by the last four persons named. The testimony of Frank York was against his own interest as he is an heir at law of the deceased. When asked, upon cross-examination, whether he was not testifying against his own interest, he answered, “According to the agreement I didn’t figure I had any.”
¶11Several other facts appear in the record, without substantial evidence to the contrary. Lee York suffered for years from double hernia and had high blood pressure. He could not work his farmlands; he would go out and cut broom-corn for perhaps half a day and have to quit; he picked no cotton to speak of and he could not do any lifting.
¶12Defendants’ testimony was primarily that “Uncle Lee” had a few pounds of laundry done each six weeks or so for which he himself paid; that he had run up a little grocery account at a neighborhood store in the amount of some $30; that “Uncle Lee” paid a repair bill on his automobile which plaintiff’s evidence had tended to show “Uncle Lee” gave plaintiff because deceased could not pay the upkeep; and that some of the defendants, nephews of deceased, along with plaintiff, signed a note for the amount of deceased’s burial expenses.
¶13Defendants also showed that the deceased had paid the expense of building a one-room 10 foot by 12 foot dwelling for himself back of his house in which plaintiff lived and tended to show that deceased had also paid for some fiber board placed by plaintiff in the main dwelling-house. Defendants raised the further point that deceased had received some $3000 during his lifetime from the sale of an oil and gas lease and raised a question as to what had become of the money. Defendants also made point of the fact that plaintiff paid rent all the while.
¶14*662The stipulation, hereinbefore referred to, contained the statement that plaintiff, at his own expense, planted fruit trees and made improvements to the dwelling-house. His proof was that his wife raised the question when Lee York wanted them to move back that the three-room house was small for all of them tO' try to live in and that Mr. York built the separate house for his own convenience. It further tended to show that “Uncle Lee” loved sweets and that possibly his grocery bill was for cookies, etc., that he desired in addition to the meals regularly served to plaintiff's family. Plaintiff’s further evidence was that “Uncle Lee”, after discovery by the welfare department that he had received money for the oil lease, had to return to such department certain old age assistance benefits in undisclosed and apparently unknown amounts which he had received; that “Uncle Lee” gave plaintiff the automobile in question; that plaintiff hauled him around in it; that plaintiff paid all or most of the upkeep on the car. Plaintiff’s proof was to the further effect that he paid the taxes on the lands in question; that Lee York had paid the 1932 taxes on the farm but that plaintiff paid the taxes for 1931, same having become delinquent and further paid the 1933 taxes and for all years since on said land, usually by check, sometimes by cash.
¶15Plaintiff’s explanation of his having paid rent to deceased through all the years was that the oral contract provided, not that plaintiff should have the use of the farm during deceased’s lifetime rent-free, but that plaintiff and his wife, if they complied with the agreement, should have deceased’s farm “when he was through with it.”
¶16The majority opinion indicates that plaintiff’s performance should be referable to the contract; that the evidence should be so strong as to leave no reasonable doubt in the mind of the chancellor that the oral contract to make a virill was actually made; and that the circumstances requiring the court to specifically enforce such an alleged contract must be such as to make the failure so to do practically amount to the perpetration of a fraud upon the plaintiff, himself.
¶17It occurs to me that the acts of plaintiff and his family could be referable to nothing but the contract alleged. The majority speaks of plaintiff’s conduct after 1947 amounting to no particular departure from his former manner of taking care of his uncle. One witness said the plaintiff was Lee York’s “pick” of all his nephews. It seems to me that deceased, speaking through the witness, should certainly be heard today to say that he would like for his “pick” of his nephews, the one who changed the course of his own life and lived with deceased and took care of him through the last eighteen or twenty declining years of his life, and his wife, to be, if not rewarded, at least, in accord with the principles of justice, equity and fair-play, compensated in accordance with the terms of the contract, which was knowingly entered into, and solemnly and orally acknowledged in the presence of numerous witnesses and not substantially disputed by defendants.
¶18As plaintiff has definitely earned the lands in question, and deceased is apparently “through with them”, I sincerely believe they should be awarded to the former. I, therefore, respectfully dissent.