there was testimony to the effect that the agreement, as found by the court, had been made by the brothers. It is, of course, well settled that a contract will not be specifically enforced unless its terms are clear, definite, and certain. (Agard v. Valencia, 39 Cal. 292; Magee v. McManus, 70 Cal. 553, [12 Pac. 451]; Stanton v. Singleton, 126 Cal. 657, [47 L. R. A. 334, 59 Pac. 146]; Monsen v. Monsen, ante, p. 97, [162 Pac. 90]. But we do not see that the contract found to have been made between the plaintiff and his brother Patrick is lacking in certainty or definiteness. Patrick was to erect on the land, and to furnish, a house for the use of the parents of the contracting parties, and in consideration of these acts the plaintiff was to convey the land to Patrick. It is true that the word "convey" may not have been used in the conversations between the brothers. But there was testimony that James said he would "give" Patrick the lot for the purposes named, if Patrick would make the expenditures referred to. In view of the surrounding circumstances, the court was justified in construing the language of plaintiff as meaning that he would transfer the legal title to Patrick. It is no objection to specific performance that the agreement was not in writing. Patrick had made valuable improvements on the property on the faith of the agreement, and those claiming under him had gone into possession. This is enough to take the case out of the statute of frauds. (Burlingame v. Rowland, 77 Cal. 315, [1 L. R. A. 829, 19 Pac. 526]; Manning v. Franklin, 81 Cal. 205, [22 Pac. 550]; Calanchini v. Branstetter, 84 Cal. 249, [24 Pac. 149].)

It is further urged by the appellant that the contract cannot be enforced for want of mutuality. The argument is that some of the obligations on Patrick's part still remain unperformed, and that these are of such a character that a court of equity could not specifically enforce them. If this position be sound, it will no doubt afford a sufficient answer to a demand for specific performance against the plaintiff. (Civ. Code, sec. 3386; Cooper v. Pena, 21 Cal. 404; Banbury v. Arnold, 91 Cal. 608, [27 Pac. 934]; O'Brien v. Perry, 130 Cal. 526, [62 Pac. 927].) The court found, and the evidence fully supports the finding, that Patrick had, during his lifetime, performed every part of his agreement that it was possible for him to perform. He had built and furnished the house, and has permitted the occupancy of it by

his parents. But it is claimed that he was required to permit the further occupancy of the premises so long as the parents, or either of them, should live, and this, it is said, is an agreement for continuing acts or personal services, which a court of equity will not undertake to supervise or to enforce specifically. (36 Cyc. 584.) There is, however, nothing in the agreement calling for any such acts or services. All that was contemplated was that the parents should have the right of possession and enjoyment during their lives, a purpose that could be given complete effect by the execution of a single paper on the part of Patrick, or his successors in interest. This purpose was fully met by vesting a life estate in the surviving husband and father, as was done by the terms of the decree.

Finally, it is argued that specific performance could not properly be decreed in this case for want of allegation and evidence that the plaintiff received an adequate consideration, and that the contract was, as to him, just and reasonable. (Civ. Code, sec. 3391.) Such pleading and proof has always been required in the chancery courts. It is not necessary, however, that the complaint for specific enforcement should declare, in the very words of the code, that there was "an adequate consideration for the contract" and that it was "just and reasonable." These allegations, standing alone, would be objectionable as embodying the mere conclusion of the pleader. The proper mode of pleading is to set forth the facts from which the court may conclude that the contract is supported by an adequate consideration and is, as to the defendant, fair and just. (Stiles v. Cain, 134 Cal. 171, [66 Pac. 231]; White v. Sage, 149 Cal. 613, [87 Pac. 193].) The facts here alleged by the defendant and found by the court on satisfactory evidence are, we think, sufficient to show the existence of the equitable requisites. Taking into account the relations of the parties, the desire of the plaintiff and his brother Patrick to provide a home for their parents, the value of the land contributed by the plaintiff, the extent and value of the improvements furnished by Patrick, and the fact that Patrick could receive no pecuniary benefit from the land or from his expenditures until after the death of both of his parents, the court was fully justified in drawing the inference, implied in its decree, that the contract was fair and just as to the plaintiff,

and that said plaintiff received, in the expenditures by Patrick and the provision for the parents, a consideration which was entirely adequate to support his agreement to contribute the lot. This was not the ordinary case of a sale of land for a money consideration alone. The transaction was one between brothers, bound by a common tie of filial duty, and sceking to benefit their parents, rather than to deal for profit. These were elements to be given due weight by the trial court, which is to exercise a sound discretion in determining whether, under all the circumstances, the contract was just and the consideration adequate. (O'Hara v. Wattson, 172 Cal. 525, [157 Pac. 608].) It cannot be said that any abuse of discretion appears here.

No other points are made.

The judgment and the order appealed from are affirmed. Shaw, J., and Lawlor, J., concurred.

[S. F. No. 7473. Department One.-January 27, 1917.]

In the Matter of the Estate of LAURA M. N. HUNTOON, Deceased.

ESTATE OF DECEASED PERSON-PARTIAL DISTRIBUTION TO ONE OF SEVERAL RESIDUARY LEGATEES-CASH ON HAND.-A partial distribution to one of several residuary legatees of a portion of the cash in the hands of the executor, in part payment of such legatee's residuary interest, was properly decreed in this estate, it appearing that the remaining cash on hand was sufficient to pay the pecuniary legacies and the expenses of administration, and that it would be necessary to sell all the property of the estate and to make a final distribution of the residue in cash.

ID. VALUATION OF PROPERTY-INVENTORY PRIMA FACIE EVIDENCE.-On the proceeding for final distribution, the valuation in the inventory is prima facie evidence of the value of the property of the estate.

APPEAL from a decree of the Superior Court of Sonoma County for the partial distribution of the estate of a deceased person. Thomas C. Denny, Judge.

The facts are stated in the opinion of the court.

Wilson & Wilson, and Rolfe L. Thompson, for Appellant. James W. Oates, for Respondent.

SLOSS, J.-Laura M. N. Huntoon died, leaving a will which was admitted to probate in the superior court of Sonoma County, and letters testamentary thereon were issued to Ernest D. Woodman. By her will the testatrix bequeathed. to her sister, Mary Emma Williams, the respondent herein, the sum of ten thousand dollars. There was a bequest of the same amount to Ernest D. Woodman, a nephew of the testatrix, and the executor of her will. The residue of the estate was devised and bequeathed in undivided seventh parts, one part to said Mary Emma Williams, one to Ernest D. Woodman and the others, respectively, to two brothers of the testatrix, to a niece, to the children of a deceased brother, and to the children of a deceased sister. Notice to creditors was published, and the time for presentation of claims expired without any claims having been presented against the estate. The executor filed an inventory and appraisement which showed personal property valued at $74,726.16, and real estate valued at $42,344.28, a total of $117,070.44. Among the items of personal property were two deposits in savings banks, aggregating $11,467.72. Mrs. Williams claimed the ownership of these deposits as a gift from the decedent, and commenced action against the executor and the savings banks to recover said.deposits. These actions are still pending on appeal. The money legacy of ten thousand dollars to Mrs. Williams has been paid by order of court. The executor's first annual account was settled and allowed on June 8, 1914. It showed payments of one thousand dollars to the executor on account of his commissions, and of one thousand dollars to his attorneys on account of their fecs.

On March 9, 1915, Mary E. Williams filed her petition asking for partial distribution to her of the sum of something over eleven thousand dollars, which, as she alleged, was on hand in cash, and could be distributed to her without loss or injury to the creditors of the estate. Woodman, appearing as residuary legatee and devisce, opposed the application. The court made its decree, reciting that the estate

is of the value of over one hundred thousand dollars and is but little indebted, that all claims have been paid, that the executor has in his hands the sum of twenty-five thousand dollars in cash that is not needed in the administration, that the interest of petitioner as a residuary legatee will be more than eight thousand dollars, that the estate is in litigation and will not be ready to finally settle and distribute for considerable time, and that eight thousand dollars can be paid out of the estate to the petitioner on account of her interest as residuary legatee without loss or injury to the creditors of said estate or to said estate. The decree accordingly distributed such sum of eight thousand dollars to the petitioner on account of her interest as residuary legatee. From this decree Woodman appeals.

It appeared in evidence that a part of the personal property of the estate had been converted into cash. Certain shares of stock had been sold and some promissory notes collected. At the time of the hearing the executor had on hand about twenty-five thousand dollars. It is contended that the court was not justified in finding that this sum of money was "not needed in the administration." The appellant claims that out of this sum his own cash legacy of ten thousand dollars should be paid, and that there is a mortgage debt of ten thousand dollars on a parcel of real property belonging to the estate. But the mortgage debt had not been presented as a claim, and while it still remained a lien on the land, the executor was under no obligation to pay it out of the estate. In fact, he testified that in his judgment it would not be advisable to pay the mortgage. So far as the appellant's legacy is concerned, he has not applied for an order directing its payment. But assuming that it should be paid, there will still remain on hand the sum of fifteen thousand dollars, and the payment of eight thousand dollars to the respondent will leave more than enough cash to meet all probable expenses of administration.

The appellant also contends that the finding that the estate is of the value of over one hundred thousand dollars is not sustained by the evidence. But the inventory shows a value of over one hundred thousand dollars, after deducting the deposits in litigation. Furthermore, it was testified that the income of the estate during the two years prior to the filing of the petition for partial distribution had been about