Counsel for appellants upon this application for rehearing do not take issue with the opinion of the court in this cause, in so far as the same construes the bill as disclosing that the will sought to be set aside, and which has been duly admitted to probate, shows upon its face it was based upon a valuable consideration, moving from the beneficiary to the testatrix, received and accepted by the latter. Nor is it controverted that an instrument may be properly construed as partly testamentary and partly contractual, and that when based on a valuable consideration, such an instrument, although in form a will, may, in fact, constitute legally an irrevocable contract. The insistence is, however, that, notwithstanding this situation, all wills are revocable under all circumstances, and that therefore the later will must prevail, and be admitted to probate. We are cited to the cases of Schumaker v. Schmidt,44 Ala. 467, 4 Am. Rep. 135, and Anderson v. Eggers, 61 N.J. Eq. 85,47 A. 727, 55 L.R.A. 575, from the New Jersey Court of Errors and Appeals.
It is of course conceded as a general rule that wills are revocable, and that, as said in Anderson v. Eggers, supra, irrevocability would destroy its essence as a will. But these cases do not deny that the will may also upon its face disclose a contract based upon a valuable consideration, and thereby become binding upon the testator. Indeed, this is so recognized in the following language *Page 462 taken from Anderson v. Eaters, supra:
"From this mutability of wills it follows that, if the whole scope of any arrangement is fulfilled by the mere making of a will, then nothing legally binding upon him who signs the instrument is contemplated, the obligatory force of a contract is not intended, and he remains at liberty to change his mind. The claim that a legal obligation is assumed must be supported by something beyond the consent to make a will."
The opinion then proceeds to discuss the facts leading to the execution of the will, and to show that there was nothing in the way of any contract involved in the transaction, saying:
"I think that under the circumstances the consent to make this will should not be deemed a contract. At best it is not certain that the parties meant what they did to amount to a legal obligation."
This also seems to be recognized in Schumaker v. Schmidt, supra, where, in the discussion of the question, in the opinion, the court asks the following question:
"Is there anything of the essence of a compact in it which should interfere with its revocability?"
We are not concerned with whether or not the respondent R. H. Walker could have prevented, by injunction or otherwise, the probate of the later will in the probate court, had such effort been made. Allen v. Bromberg, 147 Ala. 317, 41 So. 771. We have here an instrument partly testamentary and partly contractual, appearing upon its face to be binding upon the testatrix, and which had already been duly admitted to probate, and the decision is confined to the situation as here presented. The testatrix, with the bill so construed, was legally and morally bound in the execution of the will and the intention of the parties has clearly been carried into effect by its probate.
The appellants do not controvert the fact that the contractual feature of the will was binding upon the testatrix, but they insist that the only remedy for the beneficiary is in the nature of a bill for specific performance, or rather to establish a trust upon the property. Let us see, therefore, what is the logical result of this insistence. Under the argument here urged, the court must set aside this will, which was of binding force upon the testatrix, and establish a later will in favor of the complainants as the last will and testament. But it must be conceded that the former instrument was binding in its contractual feature, and that therefore the respondent should be entitled to relief by way of a cross-bill, and therefore the contractual feature of the instrument enforced by the establishment of a trust upon all the property owned by the testatrix at the time of her death. Certainly, if the instrument was binding upon the testatrix, he (Walker) would clearly be entitled to this relief. The result therefore, would be that the court would sustain the contention of the complainants to set aside the will in favor of respondent Walker, and in the same decree enforce the will by way of establishing a trust in favor of said Walker upon the entire estate of the testatrix owned by her at the time of her death. We respectfully submit this would be an anomalous situation in judicial procedure. An analysis of the cases cited by counsel for appellants will disclose that they are not in conflict with the conclusion we have here reached, and, indeed, no case directly in point has been called to our attention.
As said by this Court in Bolman v. Overall, noted in the original opinion:
"The power to make such a will having been renounced, the attempt to exercise it is deemed a fraud on the rights of the promisee under the contract, thus bringing into exercise another ground of equity jurisdiction."
The complainants are not in a court of law, where a closer observance of strict rules is required; but they are in a court of equity, whose jurisdiction over fraud and unfair dealing is given a very wide scope, and where the doctrine of equitable estoppel is often used with effective force. They claim through the testatrix, who, as we construe the bill, has bound herself for a valuable consideration to the execution of this will, and to its irrevocability; and they, standing in her shoes, seek to have the court set aside the probate of this will, and establish a later one, made in violation of the contractual obligation in the former, and thus obtain the aid of a court of equity in establishing a fraud upon the rights of the respondent. This would manifestly be a perversion of the right to contest a will in a court of equity, and out of harmony with all equitable principles. But, as before stated, should relief be granted complainants, yet it must be conceded that the respondent Walker would have the right to obtain relief by way of cross-bill, and establish a trust upon the property, thus placing him again in the same position he now occupies. Such a procedure would be but a display of judicial gymnastics, entirely out of place in a court of equity, which looks through form to substance, and which has been so effective in the establishment of the truth in the administration of justice.
A decision of a court should be based upon common sense and sound logic as its foundation, and if these are lacking the superstructure must sooner or later fall. If the contractual feature of the instrument here involved is subject to impeachment for unfairness or fraud, or other cause, the door is open to complainants for its attack by way of amendment; but the will is here sought to be set aside upon the sole ground that, notwithstanding its binding force and effect, it has been revoked by the execution of another will, and this upon a bill which shows upon its face that to do so would be a fraud upon the rights of the respondent.
We think the conclusion which we have here reached is rested upon sound reasoning *Page 463 and common sense, and is not in conflict with any authorities to which our attention has been directed. We therefore adhere thereto, and the application for a rehearing will be denied.
Application overruled.