¶1 DISSENTING OPIÑION
¶2 I dissent from the majority opinion, for the reason that the factual conclusions stated therein are not supported by the record. In the amended petition it is stated that the decedent of defendant (Anna Eliza Hoffman) agreed to pay the decedent of plaintiff, Mary Rutledge, $4000.00, “in consid *137 eration gf the promise and agreement by said Mary Rutledge, deceased, who was the sister of Anna Eliza Hoffman, deceased, not to institute any action to contest the will of Mary Barbara Hoffman, the mother of said Anna Eliza Hoffman and said Mary Rutledge, and not to make any effort to vacate or set aside a deed from said Mary Barbara Hoffman to said Anna Eliza Hoffman conveying to her the farm in Fairfield Township, Butler County, Ohio, of which Anna Eliza Hoffman died seized. By the terms of said agreement, any and all deferred payments of said amount of $4,000.00 were to bear interest at the rate of five per cent per annum.” It is further alleged that plaintiff’s decedent fully performed her promise and that certain payments were made by defendant’s decedent, and that a balance remains due for which judgment is prayed.
¶3 Now this constitutes the allegation of a specific, definite contract, embodying certain terms and legal obligations. In the majority opinion is set out or noted the evidence which it is asserted substantiates this contract.
¶4 It is doubtful whether such evidence even sustains a justifiable conclusion that any contract was entered into by the parties. Certainly, it is only by recourse to speculation and conjecture that the terms of the contract found to exist can be identified and the legal obligations alleged shown to exist.
¶5 The majority opinion states that the record contains circumstantial evidence sustaining such result.
¶6 In L. S. & M. S. Ry. Co. v Andrews, Admr., 58 Oh St 426, it is stated in the syllabus:
¶7 “In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a more natural inference than any other.”
¶8 What are the circumstances proved?
¶9 (1) The plaintiff’s decedent was not satisfied with the disposition of her mother’s estate, as disclosed by the will and deeds of her mother.
¶10 (2) A number of family conferences were held.
¶11 (3) Court action was discussed.
¶12 (4) Some agreement between the heirs of the deceased mother was reached.
¶13 (5) No action to contest the will or set aside the deeds was ever filed.
¶14 (6) The defendant’s decedent from time to time paid certain obligations of plaintiff’s decedent.
¶15*138 (7) Some thirty-two years elapsed from the time the “contract” is alleged to have been made until suit was filed thereon.
¶16 (8) No specific demand was ever made by plaintiff’s decedent upon defendant’s decedent in which a legal obligation was asserted as the basis for a request for money.
¶17 If there is to be recovery in this case, it must be because a legal obligation was assumed by defendant’s decedent, which has not been performed.
¶18 It is apparent from the meagre evidence in the record that the only justifiable inference is that the defendant’s decedent did consider herself under an obligation to pay something to plaintiff’s decedent, but it is just as fair and reasonable an inference from such evidence that such obligation was merely a moral obligation to equalize the distribution of the mother’s estate as it is that such obligation constituted a legal basis for this action.
¶19 Speculation and conjecture can never reach the status of circumstantial evidence, nor can difficulty in securing proof take the place of proof.
¶20 While the statute of frauds may not have a controlling influence upon the issues here presented, certainly, the lapse of time, the absence of any writing, the indefinite character of the evidence presented, the family relationship of the parties, all should cause a court to scan with close scrutiny the evidence advanced as supporting the contention that the specific contract alleged in the petition has been proved.
¶21 My conclusion is — that as a matter of law, there was no substantial evidence offered at the trial justifying the conclusion that either the decedent of plaintiff or defendant ever assumed any legal obligation to do or refrain from doing any specific thing, and that judgment should be here rendered for the defendant.