MILLARD EARL KITZMILLER v. ROY KITZMILLER

This is a dispute between two brothers concerning the current ownership of real property their father owned at the time of his death. The plaintiff, contending the brothers are tenants in common because their father died intestate and they are his only heirs, seeks to partition the real property formerly owned by their father. The defendant contends he is the sole owner because he had an oral agreement with his father pursuant to which he would be bequeathed the property upon his father’s death in exchange for moving to his father’s property to work the farm and care for his father, which he claims to have done in reliance on the agreement. Thus, the defendant asserted a counterclaim by which he seeks specific performance of the oral agreement, a declaration that he is the sole owner of the property, and dismissal of the partition petition. Relying on the theories of equitable estoppel/estoppel in pais, the defendant also contends that the plaintiff may not assert a defense based on the statute of frauds, Tennessee Code Annotated § 29-2-101(a)(4). The trial court found that the defendant failed to establish a contract to make a will or devise property, and it also held that the alleged oral agreement was too vague to be enforced, that the defendant failed to fulfill his obligations under the agreement, and the agreement was unenforceable based on the statute of frauds. Thus, the court ruled that the parties jointly own the property as tenants in common, dismissed the defendant’s counterclaim and designated the order as a final judgment pursuant to Tennessee Rule of Civil Procedure 54.02. This appeal followed. We affirm.