Stevens v. Myers ( 1918 )

JOHNS, J.

1-3. In his motions to affirm the decree of the Circuit Court, the defendant relies upon the decisions of the Supreme Court of the United States, and some other jurisdictions, and the cases of Guthrie v. Imbrie, 12 Or. 182 (6 Pac. 664, 53 Am. Rep. 331), and Putman v. Southern Pacific Co., 21 Or. 230 (27 Pac. 1033), and under such authorities contends that the disagreement of this court would necessarily result in an affirmance of the decree of the lower court. All of the arguments in this case were heard in bcmc, and Chapter 167 of the Laws of 1913, page 295, provides :

“When sitting in bcmc, the concurrence of four justices shall be necessary to pronounce a judgment.”

Section 5 of this act is as follows:

“The Supreme Court shall have power to make and enforce all rules necessary to the prompt and orderly dispatch of the business of the court, and the remanding of causes to the court below.”

It is not claimed that this court ever rendered any decision in this case, and the rehearings were ordered on the application of one of the litigants.

This is a suit in equity and is here tried de novo. The cases of Guthrie v. Imbrie, 12 Or. 182 (6 Pac. 664, 53 Am. Rep. 331), and Putman v. Southern Pacific Co., 21 Or. 230 (27 Pac. 1033), were both actions at law and both were decided under an older statute, different from the one enacted in 1913, above quoted, and for such reason those cases are not in point. The motions to affirm were filed on June 7, 1917, and May 2, 1918, renewed on October 21, 1918, and insisted upon at the last argument of this cause. The petitions for reargument were addressed to the sound discretion of this court and were granted in the exercise of that discretion. The following entry appears in the official records of this court under date of June 19, 1917:

“Now at this time the court being fully advised it is ordered that the motion to affirm the decree of the court below be and the same is denied.”

By order of the court the case was reargued on September 4, 1917, and again reargued on November 26, 1918. This is an important case and it is very apparent that the rearguments were ordered and made for the purpose of procuring the concurrence of four justices, “necessary to pronounce a judgment” on the merits. The motions to affirm the decree are denied.

At the time of their marriage, youth and energy were about the only assets of George T. Myers and Sally S. Myers. They had their trials and struggles, but through economy and close attention to business affairs they eventually accumulated a substantial fortune and at the time of. her death on January 18,1902, Sally S. Myers left an estate in her own right of the appraised value of $26,350; and at the time of his death on July 12, 1907, George T. Myers left an estate of the appraised value of $232,138.65, including the property which he received by the will of his deceased wife. It appears that Mrs. Myers had received $5,000 from an estate; that this money was invested and used for family purposes; that in a large measure it was the beginning of their later financial success and that at the time of George T. Myers’ death one parcel of his wife’s property was worth at least $100,000. There has since been a very marked increase in the value of all of the property.

George T. Myers and Sally S. Myers had two children a daughter and a son, the plaintiff and the defendant in this suit. Their domestic relations were exceptionally happy and pleasant. Mr. Myers had great confidence in and respect for the ability and judgment of his wife and freely consulted her about all of his business affairs, never making an investment without her approval. There was also a strong attachment between the son and daughter and the only trouble they ever had, originated in the execution of their father’s subsequent wills and the settlement of his estate. The father and mother were boon companions and after they had acquired their fortune they took numerous trips, always together, and looked forward to them with pleasure. In short, up to the time when this trouble arose • it was an unusually happy family, strongly bound by the ties of love, mutual respect and confidence.

In February, 1896, just prior to taking one of their accustomed trips, George T. Myers called at the office of Whitney L. Boise, an attorney of this court, and, according to Mr. Boise’s testimony, advised the latter that:

“Mrs. Myers and himself had decided to make a will, each one wanted to make a will — that he was going to will to Mrs. Myers all of his property and in case of her death before his, that he wanted it to go to his children equally, but at the present time he did not desire to give anything to the children; that Mrs. Myers had helped him to make his money and he thought that he wanted to give everything he had to her, and that she felt the same way.”

Mr. Boise further testifies that both Mr. and Mrs. Myers came into his office the next morning; that, “They both stated to me what they wanted,” and that, “I asked Mrs. Myers if she wanted the same kind of a will made and she said she did.” They then commenced to talk about trips they had made and of the one which they were contemplating and when Mr. Boise was ready to draw the wills his stenographer had gone. He explained to them how the wills should be executed and that Mr. Myers could come in later, take them home and have them executed. He further testifies:

“I drew the wills that afternoon and Mr. Myers came in and got them and took them home and had them executed, and brought them back to my office, and I looked them over and saw they were properly executed und put them in envelopes and sealed them up and put them in the safe in my office. They remained there a great many years, I think until Mrs.. Myers’ death.”

In response to a question as to any understanding or agreement, Mr. Boise answered:

“I think I have substantially stated it, he said they had talked it over and they had come to the agreement to make these wills. He wanted to give all of his property to his wife and in case she died before he did, he wanted it to go to his children equally, and she wanted to do the same. That is all I' can recollect.

“Q. They did not ask you, as I understand it, anything about the making of these wills, but told you what they wanted done, that is, they merely told you what they wanted in the wills?

“A. I have stated the case as it was, yes. And I drew it as they told me to, or tried to.”

We quote from his cross-examination:

“Q. You are sure now, you did draw the wills according to the directions of both of them?

“A. I drew the wills as I understood to be their directions.

“Q. And the wills as they now are written express the- agreement that was made at the time between Mr. and Mrs. Myers?

“A. That is what I tried to do, if I failed it is my fault.

“Q. You do not wish to be understood to say that the wills are not according to the agreement made between them, that you have testified about?

“A. Certainly not.”

In the former case, that of contesting the will, Mr. Boise had testified as follows:

‘ ‘ She left all her property to him and he left all his to her. That is, in case either one should die, that was the condition, and he was appointed executor of her will and I think she was appointed executrix of his will, and they were identical. I don’t remember now as to whether in case both of them died the property was to be divided equally between the children, but her will will show. Whatever her will is, his will was a counterpart of it.”

There is no question about the execution of the will of Mrs. Myers on February 11, 1896, and while the defendant denies the execution of the will of George T. Myers of that date and such will was not offered in evidence and is not accounted for, we think it clearly appears from the record that both the husband and wife did execute their respective wills at the same time and in the same manner, as indicated by the testimony of' Mr. Boise and the subscribing witnesses, and that such wills were in form and substance as outlined in the statement of this case.

4, 5. From an analysis of those wills it clearly appears that Sally S. Myers devised and bequeathed all of her property, both real and personal, to her husband, George T. Myers; that he devised and bequeathed all of his property to his wife, Sally S. Myers, and that each appointed the other as executor or executrix of the respective wills. The second clause of the wills provides:

“I intentionally omit giving anything to my children, Georgia Frances Stevens and George Tobias Myers, Jr., knowing that my husband (or my wife) will care and provide for them.”

The third clause specifically provides that in case of the death of George T. Myers before Sally S. Myers, or of Sally S. Myers before George T. Myers, “then, and in that event, I give, devise and bequeath all of my property and estate, real and personal, of every name, nature and description, and wheresoever situate and being, to my said children, Georgia Frances Stevens and George Tobias Myers, Jr.” And in such an event the fifth clause provides for the appointment of the plaintiff and the defendant as executrix and executor of the wills. Clause 1 must be construed as an absolute devise and bequest of all of the property from the testator to the survivor, and clause 3 must he understood as showing the purpose and intent, at that time, of both George T. Myers and Sally S. Myers that when both of them should die, the son and daughter should have all of the property of their father and mother.

It is contended by the plaintiff that the wills are mutual or reciprocal and that upon the death of Sally S. Myers and the probate of her will and the taking of her property by her surviving husband under clause 1 thereof, by virtue of the agreement the will of George T. Myers then and thereby became irrevocable and that the rights of the plaintiff and the defendant then became vested under clause 3 of his will. The plaintiff further contends that the mere execution of the respective wills at the same time and in the same manner, coupled with the fact that Sally S. Myers died first and her husband probated her will and received her property thereunder, is sufficient evidence of a contract, compact or agreement to make the will of George T. Myers of February 11, 1896, irrevocable; that if such acts and facts are not legally effective for that purpose, the oral testimony in the record, considered with the execution of such wills, is sufficient evidence to establish the existence of the alleged compact or agreement, and that it can be enforced by this plaintiff as the daughter and one of the beneficiaries under the third clause of the wills.

This is not a case where both parties before marriage had their own property and made an antenuptial contract. Neither is it a case where, by inheritance or otherwise, both of them acquired property after marriage and then made mutual wills. Nor is it an instance where one of the parties by his individual efforts only had acquired property and the other had obtained none. But it is a case where at the time of their marriage neither the husband nor the wife had any property, and as the result of their mutual and joint endeavor after their marriage they accumulated a substantial fortune under a law which gives the wife equal property rights with her husband; and where a husband and wife, at the same time, in the same manner, in the presence of the same witnesses, with the same terms and provisions and for the same reasons executed their respective wills. It must be conceded that the wills in question clearly expressed the natura1 feeling and instincts which then existed between a loving husband and a devoted wife and those strong parental ties which bind father and mother to son and daughter; that such wills were the very natural expression of the true relation which then existed between the members of the family; that the father then fully intended that the son and daughter should eventually receive, share and share alike, all of the property of both the father and the mother; that such relations continued to exist until some time after the death of the mother on January 13, 1902; and it must be fair to assume that the mother died fully trusting and believing that such relations would continue to exist; that the terms and provisions of the wills of herself and her husband which were executed on February 11, 1896, would be fully carried out and that upon the death of her hnsband the son and daughter would then receive in equal parts all of the property which had been accumulated by the mutual efforts of herself and her husband. The surviving husband probated her will, took and accepted the use and benefit of her property and claimed it as his own, with full knowledge of the terms and provisions of her will and the terms and provisions of his own will concurrently executed on February 11, 1896.

. Standing alone, are such circumstances sufficient evidence of a valid contract between husband and wife, and can such contract now be enforced by the daughter as against the defendant, who claims title to all of the property under the terms and provisions of the father’s will executed on May 31, 1902, after the death of the latter’s wife and the receipt by him of her property under her will of February 11, 1896? This presents a novel and interesting legal question, upon which there is an apparent conflict of the authorities. The leading original case on this subject is Dufour v. Pereira, Volume 1, Dickens’ Reports, page 119, decided by Lord Camden, Chancellor, on July 18, 1769, wherein:

“Camilla Rancer, the wife of - Rancer, being entitled to a legacy under the will of her aunt: she and her husband agree to make a mutual will, which they do, and both execute it. The husband died; the wife proved his will, and afterwards made another will. And the question was, whether it was in the power of the wife to revoke the mutual will. ’ ’

The will was jointly executed by them. The Chancellor said:

“Consider how far the mutual will is binding, and whether the accepting of the legacies under it by the survivor, is not a confirmation of it.

“I am of opinion it is.

“It might have been revoked by both jointly; it might have been revoked separately, provided the party intending it had given notice to the other of such revocation.

“But I cannot be of opinion that either of them could, during their joint lives, do it secretly; or that after the death of either, it could be done by the survivor by another will.

“It is a contract between the parties, which cannot be rescinded but by the consent of both. The first that dies, carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not.

“The defendant Camilla Rancer hath taken the benefit of the bequest in her favor by the mutual will; and hath proved it as such; she hath thereby certainly confirmed it; and therefore I am of opinion, the last will of the wife, so far as it breaks in upon the mutual will, is void.”

For such reasons it was held that by her acts the defendant “bound her assets to make good all her bequests in the said mutual will” and it was ordered that an accounting be had. This case is criticised and somewhat weakened by the later decision of Lord Loughborough in the case of Lord Walpole v. Lord Orford, 3 Ves. 102, but is again approved in Stone v. Hoskins, Volume 93, N. S. Law Times Reports, 441, decided in November, 1905.

Underhill on the Law of Wills, Volume 1, page 19, Section 13, lays down this rule:

“Mutual wills, whether joint or several, are revocable by either testator during the life time of the others so far as his disposition of property is concerned, without notice to or consent of the others, unless the making of the will is the result of a contract by which each has agreed to devise his property to the others.

“If two testators who have united in the execution of a mutual will have devised their property to each other so that the devises form a mutual consideration, neither, after the death of the other and the probate of the will as to his property, is at liberty, after accepting the benefit conferred, to repudiate the contract to the injury of the heirs or next of kin of the testator who predeceased him. The mutual will was made upon condition that the whole shall be but one transaction. If the will is not revoked during the joint lives of the testators, he who dies first has a right to rely upon the promise of the survivor. He has fulfilled his part of the agreement, and it is not just to his representatives to permit 'a revocation when he has been prevented from revoking his will by a reliance upon the other’s promise. It is too late for the survivor, after receiving the benefit, to change his mind because the first will is then irrevocable. It would have been differently framed, or perhaps not made at all, if it had not been for his inducement”— citing, among other authorities, the case of Dufour v. Pereira, Vol. 1, Dickens’ Reports, 419.

Schouler on Wills (5 ed.), Volume 1, page 577, Section 458a, says:

“It would appear that at all events, either party to a joint or mutual will, and a survivor especially, has the right during life to revoke that will as concerns his own disposition, so that it cannot be set up in probate as his last testament; but that in equity, at all events, a subsequent revocation which was not mutual cannot destroy the trust or compact created thereby. ’ ’

A full discussion of this question is found in the late work of Alexander on Wills, where in Volume 1, Sections 85, 87, 88 and 91, pages 96-105, the author says:

“The general rule seems to be, although not undisputed, that if two persons execute wills at the same time, either in one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation, without notice, by either during their joint lives. The case is different, however, where the mutual or reciprocal wills are the result of a contract based upon a valid consideration, where there has been a joining of property interests for the purpose of making a testamentary disposition of the same, or where, after the death of one, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement. In such cases, where all the facts are fully established, equity will interpose to prevent fraud. This, however, can be accomplished only through a court of equity, the probate court having no jurisdiction. # #

“There are cases, however, where it would be a fraud for the survivor of two who had, pursuant to an agreement, made wills in favor of each other and certain third persons, to alter or revoke on his part the testamentary dispositions so mutually made, after the will of the other had become irrevocable through death. In such a case equity will step in to prevent fraud and will compel performance, viewing the matter as a contract rather than as a will. * *

“Where two parties have made mutual wills in favor of each other, whether pursuant to a valid agreement or not, if the survivor receives benefits under the will of the other who has died without having revoked the same and under the belief that the will of the survivor would not be altered, the revocation by the survivor of his will would be such a fraud as equity would prevent. Such wills are in effect the separate will of each maker and the right of revocation is undisputed except in those cases where it would be a fraud against the estate of the decedent to allow the survivor to receive a benefit or advantage under the will of the one first dying and thereafter to make a different disposition of his1 property. Where mutual or reciprocal wills have been made pursuant to an agreement which has been executed by one of the testators dying without having made any different testamentary disposition of this property, and the other has accepted the benefits accruing to him under the will of the deceased, the agreement becomes obligatory upon the survivor and may be enforced in equity against his estate.

‘ ‘ The distinguishing feature of a will is that the testator may revoke it at any time, yet this right may be renounced. He may contract to make a will containing certain dispositions which shall not be altered or canceled, and such agreement, if based upon a sufficient consideration, is valid and will be enforced in equity.* * ”

The case of Anderson v. Anderson (Iowa), 164 N. W. 1042, holds:

“While extrinsic evidence is inadmissible to vary or chánge the terms of a will or make another or different will for the testator, there is no rule excluding proof of facts tending to show that a husband and wife who executed wills in favor of each other within a few weeks of each other acted with the knowledge of the other, that the wills were drawn by the same person at the same time and in identical terms and at the joint request or direction of both husband and wife, and that they were in fact executed in pursuance of a common understanding and purpose.

“Evidence held to show that wills executed by a husband and his wife in favor of each other, though executed on different dates, were executed in pursuance of a common understanding and purpose, even excluding the testimony of the scrivener as to the statements of the parties to him concerning the contents of the wills and their intention therein expressed.”

Prom an examination of that case it will be found that there is a marked similarity between the testimony of J. E. Anderson, who prepared the wills in question there, and that of Mr. Boise in the instant case. In its opinion the court goes on to say:

“But we think there is no rule of evidence which excludes proof of facts tending to show that the husband and wife-did act each with the knowledge of the other; that the two wills were drawn by the same person at the same time, and in identical terms, and at the joint request or direction of both husband and wife; and that although the dates of their execution differ by a few days they were in fact executed in pursuance of a common understanding and purpose.”

In the case of Frasier v. Patterson, 243 Ill. 80 (90 N. E. 216, 17 Ann. Cas. 1003, 27 L. R. A. (N. S.) 508), the syllabus in the last-named report says:

“A will executed jointly by husband and wife, in which each devises his or her property to the other for life with remainder over, cannot be revoked by one after the death of the other.

“Extraneous proof of mutual understanding is not necessary to make irrevocable, after the death of one party, a joint will by husband and wife, by which each gives his or her property to the other for life with remainder over to their child.”

And at the close of the opinion the court says:

“If evidence of a mutual compact is necessary in such case, that evidence is afforded by what the parties did. ¥e cannot see how the situation would be any different if witnesses had testified that they heard this husband and wife discuss what disposition they would make of their respective estates, and that they agreed with each other that they wo aid make a joint will such as they did make. The fact that they made such will is satisfactory proof to our minds that it was done in accordance with their mutual compact to dispose of their property in this manner.”

We find this statement in the notes appended to the above report of the case:

“There is much confusion and apparent conflict among the cases upon the question of the revocability of a mutual or conjoint will by one of tbe makers after the death, or without the consent, of the other. The general principle, however, seems to be that such an instrument, as a testamentary instrument, may be revoked by either maker, so far as his property is concerned, without the consent of the other, and therefore an express or implied covenant against revocation will not prevent the probate of a later will executed by one of the parties; but a court of equity may in a proper case give effect to the instrument as a contract, in the same way that equity may give practical effect to an agreement to make, or not revoke, an individual will. This distinction serves in a large measure to reconcile apparently conflicting cases.”

The case of Brown v. Webster, 90 Neb. 591 (134 N. W. 185, 37 L. R. A. (N. S.) 1196), in the syllabus lays down this rule:

“Where a husband and wife, possessed of separate estates, orally agree that upon the predecease of either the survivor shall thereupon become the owner of all of the estate, both real and personal, of such decedent, and at the same time, and in pursuance thereof, and for the expressed purpose of providing a proper method of carrying such agreement into effect, simultaneously execute reciprocal wills, in each of which the other spouse is made sole devisee and legatee, held that the oral agreement and the execution of the wills constitute a single transaction, that each is an integral part of one contract, and that such contract cannot be said to rest entirely in parol.

“And, in such a case, the contract of each is a sufficient consideration for the contract of the other.

“And the continued reliance by plaintiff upon the contract, by permitting her will executed as a part thereof to remain in the family safe, unchanged and unrevoked, during the entire lifetime of the deceased, constituted full performance by her of the terms of the contract.

“And the wills, executed as a part of such contract, in equity, are not ambulatory, and may not be revoked by either party to such contract so long as the other party continues to perform the contract on his or her part.”

Larrabee v. Porter (Tex. Civ. App.), 166 S. W. 395, is an exhaustive and well-considered case, and the rule is there stated thus:

/‘A joint and mutual will, executed by husband and wife pursuant to a contract between them, which gives to the survivor a life estate in the entire property with remainder to their daughters, is executed on a valid consideration consisting of the reciprocal devise of the one to the other, and where on the death of the wife, acquiescing in the will, the husband probates it and goes into possession, he cannot revoke the will.

“Where a joint and mutual will executed by husband and wife, which gave to the survivor their property for life with remainder to their daughters, was executed in consummation of a parol agreement between them to make an equitable disposition of their property to their children, and the husband, on the death of the wife, probated the will and took possession of the property devised thereby, he was estopped from thereafter disregarding the will.”

In Robinson v. Mandell, 20 Fed. Cas., page 1027, the rule is thus laid down: ’

“Where two persons agree each with the other to make mutual wills, and both execute the agreement, it is held that neither can properly revoke his will without giving notice to the other of such revocation. The death of one of the parties in such a case carries his part of the contract into execution, and the better opinion perhaps is, that the other party, after that event, if the agreement was definite, and satisfactory, cannot rescind the contract: Dufour v. Pereira, 1 Dickens, 419; 2 Harg. Jurid. Arg. 272. * * The doctrine is, that the parties are under a restriction, each to the other, not to revoke their respective wills so as to secure any undue advantage. Bound by the agreement to maintain good faith, each to the other, the conelusion is, that neither can revoke without giving due and seasonable notice.”

2 Story’s Equity Jurisprudence, Section 785, says:

“A contract to make mutual wills, if one of the parties has died having made a will according to the agreement, will be decreed in equity to be specifically executed by the surviving party if he has enjoyed the benefit of the will of the other party.”

In Prince v. Prince, 64 Wash. 552 (117 Pac. 255), it is held: ’

“Mutual wills by two testators, looking to a just distribution of the property of both, partake of the nature of contracts, and may be specifically enforced.”

This case quotes with approval the opinion in Deseumeur v. Rondel, 76 N. J. Eq. 394 (74 Atl. 703), where the rule is thus laid down:

“A contract of two persons on a sufficient consideration for the benefit of a third person is enforceable against the contractor.”

And:

_ “An agreement between two persons on a legal consideration to dispose of their property at death in a specified manner, or to specified persons, is enforceable. * *

“It may be that during the lifetime of both Alexander and Elizabeth Bisson either could have rescinded this agreement — call it a will, or call it a contract, or an instrument of proof tending to prove a contract. But I am clearly of opinion that whatever name should be properly used to characterize this paper, it proves, or tends to prove, an agreement between the parties signing it to dispose of their property in a certain way which a court will enforce if made upon legal consideration, and if it be true and proven that at the time the paper was executed, and at the time of the death of Alexander he was possessed of personal property or real estate which was taken over and used by Elizabeth, his wife, by virtue of the probate of this paper as his will, the agreement thus evidenced has sufficient legal consideration to support it, and the rights under it will be enforced.

“If, for instance, Alexander was a man of means, and Elizabeth had the four lots which were in her name at the time of the making of the paper on the 20th of June, 1855, and they made this paper, which, as they said was to make a final settlement respecting their properties, and he died first, and she took under the terms of this paper which was probated as a will all of his personal property, and either used it (if it were held that under the terms of the probated will she was entitled to do so), or used it for life (if the narrower estate was held to be vested), I cannot believe it possible that any court would thereafter permit her, under these circumstances, to rescind or repudiate her part of the bargain.”

In Campbell v. Dunkelberger, 172 Iowa, 385 (153 N. W. 56), this doctrine is announced:

“Where mutual wills, reciprocal in their provisions are executed in pursuance of a contract between the parties, if after the death of one of the parties the survivor takes advantage or accepts the provisions made by the other party, the survivor may not otherwise dispose of his property than according to the terms of the will.”

In the case of Baker v. Syfritt, 147 Iowa, 49 (125 N. W. 998), it is held:

“Where two persons unite in a joint will, whereby the survivor takes some benefit from the estate of the one first dying, and such provision is coupled with another, by which, subject to such right in the survivor, the estate of both is devised to a third person, there is an element of contract obligation between the persons, and when the devise becomes irrevocable, there arises a vested right in the beneficiary of which he cannot be arbitrarily deprived.”

In Rastetter et al. v. Hoenninger et al., 151 App. Div. 853 (136 N. Y. Supp. 961), Id., 157 App. Div. 553 (142 N. Y. Supp. 962), Id., 214 N. Y. 66 (108 N. E. 210), this rule is announced:

“Where a joint and mutual will is made by a husband and wife and is binding upon the survivor, the latter by proving the will and accepting benefits thereunder contracts that not only the property received from the estate, but also his individual property, shall be disposed of at his death in the manner provided by the joint will.”

This case is cited and approved in the recent opinion in Phillip v. Phillip, 96 Misc. Rep. 471 (160 N. Y. Supp. 624).

In the case of In re Burke’s Estate, 66 Or. 252 (134 Pac. 11), in an opinion written by Mr. Chief Justice McBride, quoting with approval from 40 Cyc. 2117, 2118, it is said:

“Such an agreement is valid if performed by the making of such wills and the acceptance by the surviving party of the fruits of the agreement, but it is valid only as a contract, the performance of which by one party and acceptance by the other has taken it out of the statute of frauds.”

The above authorities, either directly or by implication, sustain the legal principles contended for by the plaintiff. .

In 1 Alexander on Wills, Section 85, it is said:

“The weight of authority is that such agreements to make wills are not established merely because two persons have made reciprocal testamentary dispositions in favor of each other, the language of such wills containing nothing to the effect that the instruments were the result of a contract. Some jurisdictions, however, have held that such fact causes the presumption to arise that the wills were executed pursuant to an. agreement. The reasoning in such cases, however, does not seem cogent and general facts and circumstances are included to aid in arriving at the conclusion. * * And where such wills are executed by relatives because of love, affection or family ties, such facts would seem to negative any agreement between the parties based upon a fixed condition.”

In the recent case of Wanger v. Marr, 257 Mo. 482 (165 S. W. 1027), the Supreme Court of Missouri in legal effect overrules the former case of Bower v. Daniel, 198 Mo. 325 (95 S. W. 359), and holds that:

“The mere fact of the execution of joint wills is not sufficient in itself to show that the wills were made pursuant to contract. * * The reciprocal character of separate wills, if proved, is not so significant evidence that they were executed pursuant to a contract as is the execution in a single instance of the joint will of husband and wife,” and that the evidence in the case was “insufficient to establish the fact that contemporaneous wills executed by the husband and wife were executed pursuant to a contract.”

In Allen v. Bromberg, 163 Ala. 620 (50 South. 884), it is held that:

“Where there was an agreement between husband and wife to make mutual wills disposing of real estate, the same was void unless in writing, and the wife had the right to revoke a will made pursuant thereof, after the death of the husband, and to make another. ’ ’

In Edwall v. Jesseph, 75 Wash. 391 (134 Pac. 1041), it is announced:

“'The making of mutual wills by a husband and wife is not such part performance of an oral contract to make irrevocable wills, devising the real estate of the parties to the survivor, as to take the same out of the operation of the statute of frauds.”

In Buchanan v. Anderson, 70 S. C. 454 (50 S. E. 12), this statement is made:

“Where a husband and wife adopt an instrument as their will which disposes of the separate but not of the joint, property, either may revoke it, in the absence of a valuable consideration to support a contract to dispose of the property in the manner set forth in the will. ’ ’

Wilson v. Gordon, 73 S. C. 160 (53 S. E. 79), decided that where:

“An attorney was employed by two maiden sisters on joint request to prepare two wills, giving the property of each to .the other, with a provision that, if the devisee should die in the lifetime of the testator, the property should go to a niece and her children. Held not mutual wills, and that the surviving sister after having accepted the benefit of the deceased sister’s will, might destroy her own will.”

In Cawley’s Appeal, 136 Pa. 628 (20 Atl. 567, 10 L. R. A. 93), it was decided that:

“The instrument was not a contract, in form or effect; nor, there having been no joint property or joint devise, was it a joint will. It was properly a double will, and must be construed and treated as the separate will of each maker, as fully as though a separate copy had been executed by each. Wherefore, after the death of one, it was revocable by the other as to his own property.”

In Edson v. Parsons, 155 N. Y. 555 (50 N. E. 265), it is held that:

“After the death of one of the sisters,, the survivor made a different will and upon her death the brother attempted to establish the provisions of the first will as a contract between the sisters to give their property ultimately to the brother. Held, that the making of the wills, and the other circumstances shown, did not establish such a contract, as a matter of law.”

The opinion goes on to say:

“I think it needs no further argument to show that to attribute to a will the quality of irrevocability demands the most indisputable evidence of the agreement which is relied upon to change its ambulatory nature, and that presumptions will not, and should not, take the place of proof.”

This case was cited with approval by Mr. Justice Eakin in Sappingfield v. King, 49 Or. 109 (89 Pac. 142, 90 Pac. 150, 8 L. R. A. (N. S.) 1066).

Such is the conflict of authorities as shown by the decisions of some of the different courts. Applying the law to the facts in the case at bar we find that in the preamble of their respective wills each testator says: “ * # hereby revoking all former wills made by me.” This language would clearly imply that each of them had made a former will and from it we might infer that their former wills were mutually revoked; that in consideration thereof the instant wills were executed and that circumstance might be a consideration for such wills. Concérning the conversation prior to the.execution of the wills, Mr. Boise testifies that George T. Myers told him, “At the present time he did not desire to give anything to the children,” and in clause 2 of their respective wills the testators announce their intentional omission of any bequest to their children, “knowing that my wife (or my husband) will care and provide for them.” We consider this to mean that it was not the purpose or .intent of either of the testators specifically to bequeath any property to either of the children while both of the parents were living, and that each of them relied upon the other, after the death of one and during the lifetime of the survivor, properly to care and provide for them, and what' should be proper care and provision was a matter in the discretion of the surviving parent. That is the construction which should he placed on clause 2 of the will. Any specific provision for the children must then be found in the third clause. If both wills remained in force and effect as they were originally executed, upon the death of their parents the children would become the owners of their joint estate, share and share alike.

The testimony is undisputed that the mother, Sally S. Myers, was- a shrewd, practical business woman of far more than ordinary ability. This appears from the uncontradicted testimony of Dr. Darr, H. L. Pittock, Mrs. H. L. Pittock and Captain John Marshall. Her husband considered'her, as he told one witness, “the main spoke in the wheel, in the business way and every other way,” and said that “if it had not been for Mrs. Myers, he would not be where he was.” Another witness says:

“He consulted with her about their business affairs. * * He always told me she was the best partner he ever had.”

To the witness C. C. Smith, Mr. Myers said:

“The balance of my property I want to keep for my children. ’ ’

The record shows that Mrs. Myers had all of the loving instincts of a good wife and mother; that she was very much concerned in the success and happiness of her children and that the plaintiff in particular was a constant companion of, and devoted to, her mother, to the very last. We cannot believe that it was ever the purpose or intent of the mother to put it in the power of the father, after he should acquire her property under her will, to disinherit her daughter, and yet that is the legal force and effect of the contention of the defendant.

The testimony is undisputed that their fortune was acquired as the result of the joint and mutual efforts of the father and mother; that each of them recognized that fact; that the mother was freely consulted by her husband on all matters and that her advice was followed in all their business dealings. It must be conceded that at the time of the execution of their respective wills on February 11, 1896, it was then the' expressed intention of both of them that when the father and mother should die, the children should then have all of their joint accumulations; that when the mother died both of their wills were in force; and that she died “knowing'” that during the lifetime of her husband he would properly provide for the children and that upon his death they would receive, and become the owners of, the joint property.of herself and her husband under- clause 3 of their respective wills.

The record shows that the plaintiff has been the victim of unfortunate circumstances, as the result of which her father, immediately upon the death of his wife, her mother, sought to disinherit her and made a new will, in which he left her a nominal sum only; that after about four months, upon his return from California, he made another will, in which he bequeathed to his daughter $20,000 when she should arrive at the age of forty-five years, and devised all of his other property to the defendant; and that for the purpose of further cutting off his daughter he afterwards executed a codicil which provided that in the event of the death of his son before his own death, he bequeathed $20,000 to the Portland Children’s Home, $20,000 to the Taylor Street Methodist Episcopal Church of Portland, $20,000 to his nephew, Charles A. M. Myers, and the residue of his estate to other named nephews and nieces. At the time the later will was prepared he told Mr. Boise that, “he had been thinking it over himself, and he thought he ought to give Mrs. Stevens half the value of the property he got from his wife,” and it was apparently for that purpose that he devised to her the $20,000 to be paid when she should reach the age of forty-five years. Yet it appears from the testimony of the defendant himself that at the time of his father’s death one parcel of the property which the latter had received from his wife was worth at least $100,000, and the plaintiff’s husband testifies that it was worth $150,000.

6, 7. After again reading the testimony, carefully studying and examining the respective wills and rereading all of the authorities, and upon a further consideration of all of the surrounding facts and circumstances which obtained at the time the wills were executed, we are of the opinion that the wills in question were executed pursuant to an agreement and understanding between the deceased George T. Myers and Sally S. Myers; that there was a valid and mutual consideration for such agreement and that in equity and good conscience the agreement should be enforced. This does not conflict with the right of any individual to dispose of his own property, by will or otherwise, in his own discretion, bnt we do hold that where for a good consideration two persons enter into an agreement to execute mutual wills and do execute such wills pursuant to such agreement, and one of them dies while both of such wills are in force and effect, the survivor probating the will of the deceased and accepting property under it; and where the agreement is valid and reasonable and snch facts are established by competent evidence, that a court of equity will then enforce the specific performance of snch agreement on behalf of a third person who is a beneficiary under such mutual wills. In this case we hold that there is sufficient evidence of such an agreement and of a valid consideration between George T. Myers and Sally S. Myers at the time of the execution of their respective wills; that after George T. Myers acquired his wife’s property by a mutual will under a contract, equity will not permit him to keep the property and revoke the contract; that the plaintiff as a beneficiary under clause 3 of their mutual wills is entitled to a specific performance of that agreement; that she is the owner of and should have an undivided one-half interest in all of the property, both real and personal, of which her father died seised and which he owned at the time of his death, and that she should have from the defendant an accounting therefor.

The decree of the Circuit Court is reversed and it is hereby ordered, adjudged and decreed that the plaintiff is the owner of and is entitled to have and receive an undivided one-half interest in all of the property, both real and personal, owned and held by George T. Myers, her father, at the time of his death on July 12, 1907; that she is entitled to an accounting for any and all of the rents, issues and profits of such property from that date; that the defendant is entitled to credit for any just and reasonable charges or expenses incurred in the administration of the estate, including the contest of the will of George T. Myers, but that he is not entitled to credit for any expenses or attorneys’ fees incurred in the defense of this suit; that such decree shall be and is hereby entered; that for the purpose of such an accounting the cause shall be remanded to the Circuit Court, and that neither party, shall have or recover costs on this appeal or in the court below.

Reversed. Decree Rendered, With Remand eor an Accounting. Rehearing Denied.

Mr. Justice Harris took no part in the consideration of this cause. Mr. Justice Bean concurs in the result of this opinion.