Samuel Freeman Miller

“ While this principle of the necessity for a written agreement in regard to the title to real property is almost universally understood among all classes of people, however unlearned in the law, it is not very well known that there is an exception to it in the case of a promise, not in writing, but so far performed as to take it out of the statute of frauds. ”

“ As Mrs. Sutton was not competent as a witness to establish a promise on the part of Mr. Kenyon to convey the property to her, under section 858 of the Revised Statutes, and as Mr. Sutton, being her husband, was also incompetent, it can be readily seen, in the absence of any written agreement upon the subject, or any correspondence between the parties, which could not reasonably be expected to exist, as they were nearly always living together, that it is almost impossible to prove a direct verbal promise from Mr. Kenyon to her in regard to that matter. ”

“ Sutton all the personal property in her house at Oconomowoc, except his jewels, and the interest during her life on one-third of $10,000, and to his sisters some slight bequests of jewelry and furniture, the body of his estate was bequeathed to his executors, as trustees for the associations referred to. In November, 1879, the Suttons closed the cottage, and spent the winter in New York, in a house belonging to Mr. Kenyon, and furnished by him; the family consisting of the same three persons and one servant. ”