Carroll County Appeals. of his kind attention in looking after, taking care of and attending to my business affairs during my lifetime.' While the paper writing executed by Miss McBurney as her will devising the property to Ralston in pursuance of their verbal agreement can not be prohated as her last will, the question arises whether this provision of the will may be used in equity to specifically enforce the contract between the parties on the ground that it is written evidence of the agreement, which complies with the statute of frauds. A verbal contract existed between these parties by which Miss McBurney agreed to devise this land to Ralston, but before a court of equity could enforce this contract, proof thereof is required by written memorandum signed by Miss McBurney. The writing is not the contract but the evidence by which it may be proven. Wiliams, J., in the case of Heaton v. Eldridge et al. 56 Ohio St. 87, 101 [46 N. E. 638; 36 L. R. A. 817; 60 Am. St. 737]: "The memorandum, which is merely the evidence of the contract, may be made and signed after the completion. of the agreement, and even a letter from the party to be charged, reciting the terms of the agreement, is sufficient to satisfy the requirements of the statute; but it can not be said that the letter constitutes the agreement; that was made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement." The paper writing in this case is in form a will, but it was made for a valuable consideration, in pursuance of their prior verbal agreement, signed by the party to be charged therewith and delivered to Ralston. Our attention has been called to the case of Bolman v. Overall, 80 Ala. 451 [2 So. 624; 60 Am. Rep. 107]. The syllabus of this case reads as follows: "A will giving property to one in consideration of personal services, rendered and to be rendered to the testator, is valid and may be enforced as a contract after the testator's death.' The facts as set out in the opinion in this case are very similar to the facts in the case that we are now considering. It Ralston v. McBurney. seems to be a well considered case and sustains the principle that where a party has entered into a verbal agreement that in consideration of services rendered or to be rendered a party agrees to make their will devising certain property to the other party to the contract, and when the verbal arrangement is completed by the making of a will, that it can not afterwards be revoked by the testator, but may be enforced as a contract. In the case of Lowe v. Bryant, 30 Ga. 528 [76 Am. Dec. 673], where, by an ante-nuptial verbale agreement, the husband had agreed to afterwards make a will devising to his wife and her children all the property which he might receive from the wife. This became an executed and enforcible agreement, by the execution, after the marriage, of the will, and the husband was excluded from afterwards making a different disposition of this property. The same principle has been announced in the following cases: Anding v. Davis, 38 Miss. 574 [77 Am. Dec. 658]; Naylor v. Shelton, 102 Ark. 30 [143 S. W. 117-121; 1914 A. Ann. Cas. 394]; Baker v. Syfritt, 147 Iowa 49 [125 N. W. 998]; Carmichael v. Carmichael, 72 Mich. 76 [40 N. W. 173; 1 L. R. A. 596; 16 Am. St. 528]; Maddox v. Rowe, 23 Ga. 431 [68 Am. Dec. 535]; Schouler on Wills, Section 542. A person may for a valuable consideration bind himself by contract to make a particular disposition of their real estate by will. Johnson v. Hubbard, 10 N. J. Eq. (2 Stockt. Ch.) 332 [66 Am. Dec. 773]. If the contract is evidenced as required by the statute of frauds, equity will decree specific performance of the contract against the heirs or devisees of the contracting party. The Supreme Court of this state in Emery v. Darling, 50 Ohio St. 160 [33 N. E. 715], held that specific performance should be decreed under a contract in writing, whereby one sister agreed to give and bequeath to another sister all her real estate and personal property of which she might die siezed or possessed in consideration that her sister should stay with her as long as she might live. In the case at bar the contract to compensate Ralston by devising the property to him was verbal, but the contract was after Carroll County Appeals. wards carried into effect so far as the parties could carry such a contract into effect by Miss McBurney making her will containing a devise as provided for in such verbal contract, and delivering the will to Ralston. This will can not now be probated as a will of Miss McBurney for the reason that it is not her last will and testament, but we think it should be enforced as a contract made upon a valuable consideration. This is not enforcing a verbal agreement for the conveyance of this property, but it is treating this paper writing, purporting to be a will, as a written contractual agreement between these parties. The devise refers to the fact that it is made "in consideration for his (Ralston's) kind attention in looking after and taking care of and attending to my business affairs throughout my lifetime." Minshall, J., in the opinion in Emery v. Darling, supra, says: "But it is of the essence of a will that its dispositions should be in the nature of gifts. Schouler on Wills, Sec. 451. When it is made to carry out or perform some obligation, made and entered into by the testator, it is not essentially a will, but in the nature of a contract, and its validity as an instrument will not in such case depend upon its conformity to the requirements of a will, but to those things which the law deems essential to the making of a valid contract." The devise in the paper writing executed by Miss McBurney was not made as a gift but to carry out an obligation previously entered into by her, and it conforms to all the legal requirements to make a valid contract for the conveyance of real estate. "But in equity a will which is once formally made in conformity to some agreement may be upheld as originally executed on the strength of some valuable consideration therein interposed, the effect of which might possibly be to make the will practically irrevocable, unless some matter of form, some technical. arbitrary rule springing out of the statute, or the necessary form or construction of the will should defeat what the parties had mutually intended. There is nothing unlawful in such a compact, nothing contrary to good morals." Schouler on Wills, Sec. 454. It can not be said that enforcing in equity a contract con Ralston v. McBurney. tained in this devise violates the provision of the statute of frauds. It is in writing, executed, and witnessed by the party to be charged, and delivered. When one party has fully performed a verbal agreement by which the other agreed to compensate him for the consideration received by executing a will devising property to the other and that agreement was carried into effect by the party making the will and delivering it, its provisions become irrevocable and enforcible against the devisees in a subsequent will or the heirs of the party. Judgment in favor of the plaintiff decreeing the property described in the petition to him. Metcalfe and Farr, JJ., concur. AUTOMOBILES-VEHICLES. [Cuyahoga (8th) Court of Appeals, July 2, 1917.] MARGARET HENRY V. CLEVELAND (CITY). Carpenter, Grant and Lieghley, JJ. 1. Ordinance Requiring Identification of Owner of Vehicle Colliding with Person or Property Valid. An ordinance requiring the driver of a vehicle, colliding with person or property in a street or public place of a municipality, to stop and upon request give the name and address of the owner thereof is enforceable as a means of identification in the proper exercise and control of traffic, notwithstanding by the giving of such information the driver may become a witness against himself. 2. Ordinance Requiring Owner of Vehicle after Collision to Render Reasonable Assistance Invalid for Indefiniteness. An ordinance providing that the driver of a vehicle, which has been in collision with person or property upon any street or public place within the municipal limits, shall stop and give such reasonable assistance as can be given and upon request give the name and address of the owner of the vehicle, is invalid where pains and penalties are provided in case of violation, and there is a failure to limit its application to drivers who have knowingly caused injury, or requirement is made that assistance be given without provision for compensation, or there is a failure to fix the standard as to what shall constitute reasonable assistance. [Syllabus approved by the court.] Cuyahoga County Appeals. ERROR to the municipal court. Dawley, Ewing, Counts & Terrell, for plaintiff in error. LIEGHLEY, J. For convenience the parties will be named in the order they stood below. Margaret Henry, the defendant, was arrested upon an affidavit charging her with the violation of sub-section 27 of ordinance No. 1341 in the following language: "That she did unlawfully fail to stop and render such reasonable assistance as could be given after her said automobile had knocked down one Arthur Zipser." The defendant was found guilty as charged and sentenced, from which judgment error is prosecuted to this court to reverse the same. The language of said ordinance is as follows: "In case of accident to or collision with person or property upon any of the public streets, parks or parkways of the city of Cleveland, due to the driving or operating thereon of any vehicle, the person so driving or operating such vehicle shall stop and give such reasonable assistance as can be given, and shall, upon request of the person injured or any other person, give such person his name and address, and, if not the owner, the name and address of the owner together with the registered number of such vehicle in case such vehicle is motor-propelled." Many errors are assigned for review by defendant, but we shall confine our consideration to one only, the validity or invalidity of the ordinance under which this prosecution was had. If the language of the ordinance required the driver of an automobile to do only such things or perform such acts as would tend to identification, we would have very little difficulty with this question. For identification is essential for the proper exercise and control of traffic. Statutes that require the driver of an automobile to stop when an accident occurs and give his name upon request, have been held constitutional. Commonwealth v. Horsfall, 213 Mass. 232 [100 N. E. 362; 1914A Ann. Cas. 682]. A statute of the state of California, the language of which was very similar to the language of this ordinance, was considered by |