manner required by statute. While Damagesbreach of contract to will property. in reaching our conclusion no reliance is placed thereon, it is proper to refer to the fact that the element of consideration mentioned in the Murtha Case as passing from the deceased to the claimant, as supporting the extension of the time of payment which took the contract out of the Statute of Frauds, namely, the personal use and enjoyment by the promisor of the property during his life, is not present in this case. The deceased carried liability insurance which fully indemnified him against any liability because of the injury sustained by the claimant. No benefit or advantage resulted to the deceased from the forbearance of the claimant. The only disadvantage suffered by the claimant was a postponement of the time of recovery which the law measures in the terms of interest. We regard the rule of the Murtha Case as sound in policy, consistent with the spirit and purpose of the statute regulating the execution of wills, one which yields to the claimant full compensation for any claim he may have against the deceased, resulting in injustice to no one. This general subject is treated in a note to be found in 41 L.R.A. (N.S.) p. 246. Most of the cases there cited have been examined, and no case has been found where the measure of damages for the breach of an agreement to compensate for an existing liability has been held to be anything but the value of the original claim. It necessarily follows that the judgment for $30,000 cannot be sustained. The question now arises whether plaintiff is entitled to recover in any amount. As appears from the statement of facts, the insurance company which indemnified the employer under the Workmen's Compensation Act paid the claimant in small weekly sums a total of $163.80. Upon the payment of the last instalment the plaintiff signed a release, in which appears this language: "I hereby release and forever discharge the said insurance company and my said employer from any and all actions, causes of action, claims, or demands, for, upon, or by reason of the accident suffered by me on or about the 17th day of February, 1914, and while in the employment of said employer, which caused a disability until the 11th day of July, 1914." Does this release bar a recovery on the part of the plaintiff for a breach of the contract under consideration? It is apparent from the record that the sum of $163.80 was grossly inadequate to compensate the plaintiff, even under the Compensation Act, for the injury sustained, and to enforce it would be unconscionable. It is true that a release executed without fraud, coercion, or undue influence, even though it may be an improvident settlement, cannot be ignored merely for the reason Release-effect that it is inadequate. inadequacy of However, we are re consideration. lieved of the necessity of inquiring whether the release was procured by fraud or imposition, because, whether it was or not, it does not pretend to be a release of damages arising from a breach of the contract which constitutes the subject of this action. Granting that it constitutes a release from liability arising under the Workmen's Compensation Act, the liability sought to be enforced here arises -scope-what from a breach of covered. a contract, and it does not operate to release that liability. The question, then, is, What is the measure of plaintiff's damages? Manifestly it is the amount to which he would have been entitled under the provisions of the Workmen's Compensation Act for the injuries which he sustained. The case was not tried on that theory, and the verdict does not indicate the amount to which plaintiff is entitled. We hold that he is entitled to recover the amount to which he would be entitled under the provisions of the Workmen's Compensation Act, with (Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.) interest from the date when, in the ordinary course, he would have received such compensation, to ascertain which a new trial is necessary. Judgment reversed, and cause remanded for a new trial. Eschweiler, J., dissents. Crownheart, J., dissenting (April 3, 1923): I am deeply impressed that the decision of this court does the plaintiff a grave injustice and violates the fundamental law of contracts. It impairs the obligation of a contract, denies the plaintiff his right under a contract freely made, pursuant to sound public policy as heretofore declared, substitutes for the contract made by the parties one made by this court, and one the parties never contemplated, and of which they never thought or considered in any way. The right of contract is as old as civilization. Freedom of contract is a fundamental principle of our government. So long as the contract is consonant with sound public policy, as determined by our laws, and made pursuant thereto, no court has a right to impeach its obligation or to substitute the obligation of the contract for an obligation prepared by the court, without reference to the contract obligation. These principles are so well established by the decisions of the courts and by constitutional guaranties that no court has heretofore attempted to gainsay them. To get a proper perspective, it is well to state the facts of the case simply and plainly. In January, 1914, John Frieders had a hotel at Clintonville and a farm near by, where he lived. He was an aged bachelor, worth over $100,000. Tony Frieders was his nephew, who had his home with his parents on a farm near Stratford. He was a favored relative of his uncle. His mother was a sister of John Frieders. At his uncle's request Tony had frequently visited the uncle and worked for him on the uncle's farm. In October, 1913, at the request of the uncle, Tony went to live with his uncle and work for him on the farm. In January, 1914, the uncle sent Tony to work in the woods at Elmhurst, hauling logs. The work was unfamiliar to Tony, and was a dangerous occupation. Tony was thrown from a high load, and one log rolled upon him, resulting in very serious injuries, because of which Tony was sent to a hospital by the uncle. Tony suffered much, and he became crippled for life. He was about twenty-one years of age at the time of the accident. John Frieders was greatly disturbed over the injuries to Tony. He blamed himself for sending Tony into the dangerous occupation, and felt that his sister, Tony's mother, would blame him. He thereupon took two young men as witnesses, and repaired to the hospital, where Tony lay upon his bed of pain. He there proposed to Tony that, if Tony would not sue him or make him trouble, he (John Frieders) would take care of Tony's expenses and would provide in his will a bequest sufficient so that Tony would not need to work any more after the uncle's death. To this Tony agreed, and the two men, according to an ancient custom, solemnly shook hands on the bargain. The contract was completed, and Tony in good faith abided by his covenant for seven long years, looking to the future for those comforts that had been denied him as a result of the accident. The proof is abundant that John Frieders was well satisfied with his bargain and fully intended to carry it out in good faith. However, an accident suddenly carried him off before he had made his will, and thus his contract was breached. Tony thereupon presented his claim to the administrator of the deceased uncle's estate. On the trial in the circuit court, the jury awarded Tony a verdict of $38,000, which the trial court cut to $30,000. From the judgment entered thereon, defendant appeals. Here this court finds that the contract was voluntarily and freely entered into, that it was based on a sufficient consideration, that it was breached by the decedent, and that Tony is entitled to damages. The sole question here is the measure of damages. To reach its most extraordinary conclusion, as I see it, the court conjures up ogres of fraud and perjury to rob estates, and then proceeds to balk the thus-created monsters by a newly declared public policy-a policy contrary to the common law, contrary to the constitutions and the statutes, and contrary to the principles of justice oft repeated in both courts of law and equity. The public policy so declared in this case is that the court will set aside the obligation of the contract agreed upon by the parties, and substitute one more to the liking of the court. In other words, the court rewrites the contract and imposes a new obligation, not agreed to or considered by the parties. This, I contend, is a violation of the public policy of this country from its foundation. By its organic law it was provided that no state should pass any law impairing the obligations of contracts (§ 10, art. 1), and sixty years later our state Constitution provided that no law impairing the obligation of contracts shall ever be passed (§ 12, art. 1), and then, to further emphasize the law of contracts, it was provided by the Constitution that the common law shall be a part of the law of the state until repealed or amended by the legislature (§ 13, art. 14). As here used, the term "common law" has the enlarged sense of embracing those rules of law and equity which embraced the judicial system of England at the time of the separation of this country from the English government, and such parts thereof as had been enforced in the territory of Wisconsin prior to the adoption of our Constitution. Equitable principles, so far as applicable to our conditions and not changed by statute, have been adopted as a part of our common law. 12 C. J. §§ 12 and 20, title "Common Law." The policy of the common law as to the class of contracts here being considered is stated thus: "An agreement by which a person obligates himself, for a valuable consideration, to devise or bequeath property to the other contracting party, is in no respect contrary to principles of public policy. (The italics are the author's.) The specific performance of such a contract will be granted in equity against the personal representatives of the promisor; for courts of equity have, from time immemorial, possessed jurisdiction in such a case to carry out the intention of the parties and to afford a remedy where the remedy at law is clearly inadequate. Equity will not make a will to take the place of that which has not been made. But, acting upon well-recognized principles, the court of equity will fasten a trust upon the estate of the promisor in favor of the promisee, which will attach to that estate in the hands of his heirs, executor, next of kin, or other persons, and which will be enforceable against them. In such a condition of affairs a court of equity will compel the legal owner of the property, who takes by descent or devolution from the promisor, to execute a conveyance of the property to the promisee." Underhill, Wills, § 286. Restatement of rule: "The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future. period, or upon the happening of some future event. It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing it." Johnson v. Hubbell, 10 N. J. Eq. 332, 335, 66 Am. Dec. 773; 40 Cyc. 1064. "The validity of a contract by which one of the contracting parties (Frieders v. Frieders, 180 Wis. 40, 123 N. W. 77.) agrees with the other, either for a good or a valuable consideration, that he will make a will devising him property, whether real or personal, is valid beyond doubt. Such contracts have been sustained and enforced in England and America from the earliest times. The rules of law which are applicable to the subject of contracts generally are applicable to these agreements." Underhill, Wills, § 285. "A valid and enforceable agreement by one party to devise or bequeath certain property to another party calls for performance according to its terms, and is not satisfied by a devise or legacy of property of less value than that agreed upon, or of a smaller estate, or upon conditions, when the agreement was for an absolute and unconditional bequest." 40 Cyc. p. 1067. "Agreements to make wills are construed as other contracts in accordance with the expressed intention of the parties, and will include property acquired after the contract, where the contract covers estate remaining at death, and may make valid a devise made in accordance with it which would otherwise be void." 40 Cyc. pp. 1066, 1067; Daily v. Minnick, 117 Iowa, 563, 60 L.R.A. 840, 91 N. W. 913. "A person may make a valid contract to dispose of his property by will in a particular way, and such contract will be enforceable." 40 Cyc. p. 1063. "The party who claims the property of the deceased under the contract may waive his equitable remedy and sue the executor for the value of the services rendered, or for damages for the breach of the contract." Underhill, Wills, § 27. "The measure of damages recoverable for nonperformance of a contract to bequeath or devise property is dependent on the form of action. In an action for damages for breach of contract, the measure of damages is the value of the property agreed to be devised or bequeathed, and not the value of services rendered or other consideration furnished by the promisee, while in an action upon a quantum meruit to recover the value of services rendered by the promisee, the value of such services is the amount plaintiff is entitled to recover, provided, according to some cases, such value does not exceed the value of the property agreed to be devised." 40 Cyc. p. 1073; Sutherland, Damages, 4th ed. § 679; Sedgw. Damages, 9th ed. § 606a. In an action for breach of contract to make a legacy, the amount that would have been received if the contract had been kept is the measure of damages when the contract is broken. 8 R. C. L. p. 452, and cases cited. "As is shown in another part of this work, contracts of this character may, after the death of the promisor, be enforced by bill in equity by fastening a trust on the property in the hands of the heirs, devisees, and personal representatives and others holding the property with notice of the contract as volunteers. This remedy, however, is not exclusive. An action at law for breach of contract will lie, or the promisee may recover on the common counts for services rendered." 40 Cyc. p. 1070. "An agreement based upon a valuable consideration, to make a particular disposition of property by will, will not be allowed to be defeated by conveyance during the lifetime of the decedent or by will, and one may sue in equity to establish a contract by defendant to will property to him, and to prevent conveyance of the property to another." 40 Cyc. pp. 1068, 1069. This court now repudiates these general principles, universally established, and for what reason? Because "to permit this judgment to stand would open up an alluring field for fraud and perjuries, and neutralize to a great degree the safeguards which the statute [relating to wills] throws about the estates of deceased persons." For hundreds of years the law has been uniformly. upheld without any such alluring fields having been explored to the public detriment. The courts have anticipated impositions on estates of deceased persons by requiring proof of claims to be clear and satisfactory. Dilger v. McQuade, 158 Wis. 328, 148 N. W. 1085; Winke v. Olson, 164 Wis. 427, 160 N. W. 164. And the legislature has safeguarded estates of deceased persons by not permitting claims to be proved by the claimant through conversations with the deceased. Stat. §§ 4069 and 4070. No such consideration for the protection of estates moved the court in Seaman v. McNamara, 180 Wis. 609, 193 N. W. 377. The supreme court of this state has upheld contracts for bequests by will since an early date. In Bayliss v. Pricture, 24 Wis. 651, Mr. Justice Paine said: "It is not disputed that in law the claimant is entitled to recover of the estate enough to make up what his services were reasonably worth, provided they were rendered upon an understanding that they were to be compensated, in part at least, by a testamentary provision, no such provision having in fact been made." It appears that a specific bequest was not allowed in that case because of failure of proof, but recovery on quantum meruit was allowed. In Jilson v. Gilbert, 26 Wis. 637, 7 Am. Rep. 100, in an opinion by Chief Justice Dixon, a contract to reward by will was upheld, and, quoting from a New York case, he said: "This was the clearest possible recognition of the validity of such agreements." In Slater v. Cook, 93 Wis. 104, 67 N. W. 15, recovery was allowed upon quantum meruit for services, but it is clearly implied that, if proof had been sufficient, plaintiff could have recovered for breach of contract to bequeath by will all the estate of deceased. In Murtha v. Donohoo, 149 Wis. 481, 41 L.R.A. (N.S.) 246, 134 N. W. 406, 136 N. W. 158, a claim was allowed for services on quantum meruit instead of upon a promise to bequeath by will, because, as the court there held, the promise was based upon an executed or past consideration, and hence such consideration formed no basis for the new promise. This distinction must be borne in mind, for the same justices who participated in the decision of the case of Murtha v. Donohoo, later decided the case of Dilger v. McQuade, supra, and in an opinion by Mr. Justice Barnes in the latter case, concurred in by the whole court, it was held: "An oral contract, based on a valid consideration to leave the promisee a legacy in personal property, is lawful and enforceable. Jilson v. Gilbert and Slater v. Cook, supra; Murtha v. Donohoo, 149 Wis. 481, 484, 41 L.R.A. (N.S.) 246, 134 N. W. 406, 136 N. W. 158. It logically follows that a written contract, founded on a valuable consideration, to leave real estate, would likewise be valid and capable of enforcement." In that case, the plaintiff, when she was eight months old, was given into the custody of McQuade, under a promise by McQuade that he would leave her all his property after the death of himself and his wife. At the time, as well as at the time of his death, he owned some real estate and personal property. He died intestate without heirs. The net value of his estate was less than $10,000. The plaintiff filed a claim against the estate for $10,000 damages for breach of contract, and judgment was rendered in the county court, awarding the claimant such sum as remained after debts and expenses of administration were paid. On appeal in the circuit court, the court held that the suit was in the nature of specific performance of a contract to convey real estate, and considered the verdict of the jury as merely advisory. The verdict in the county court, finding in favor of the plaintiff, was set aside by the trial court as against the clear preponderance of the testimony. In considering this action of the trial court, Mr. Justice Barnes said: "If there was a valid con |