What was attempted to be said, and we thought we expressed it clearly enough, particularly as elucidated by the remainder of the opinion, was that the agreement between Mr. and Mrs. Olds to make a joint *Page 647 will had actually been carried out by the execution of the joint will of which a copy is attached to the complaint as an exhibit. This is in accordance with the second paragraph of the complaint, as we understand the allegations therein contained. We did not mean by the expression above quoted, to which appellants take exception, to intimate that it was the appellants' theory that the alleged agreement between Mr. and Mrs. Olds to provide an annuity payable at the rate of $100 a month to the appellants had actually been consummated by the execution of this will.
There is involved in this case the fact that Mr. and Mrs. Olds agreed to make a joint will. Such a will was actually made. It is not contended that there was any mutual mistake in the drafting or execution of the will. It was executed subsequent to the alleged agreement between the testators to provide for the appellants. No attempt was made in this suit to set aside the will or to have it declared void because of fraud practiced by one testator upon the other or fraud exerted upon either or both of the testators by a third party. There is no allegation that Mr. Olds agreed to dispose of the joint property in any other manner or to other beneficiaries than provided by the will.
We do not have here any question of an agreement to execute a will based upon a valid consideration in favor of another party and failure to carry out the agreement so to do. Nor is there shown, as we pointed out in the original opinion, an attempt by one of the testators executing a mutual will or a joint will to dispose of his property contrary to the reciprocal provisions of such will or wills.
Reverting now to paragraph II of the complaint, which is quoted in the original opinion, we find that *Page 648 it is therein alleged that on or about September 2, 1911, Mr. and Mrs. Olds "entered into an agreement wherein and whereby they were to execute a joint will leaving the entire estate of each of them to the survivor, and upon the death of such survivor, then to certain trustees, a copy of which joint will is attached hereto, marked `Exhibit A' and made a part hereof". We assume from this allegation that the copy which is attached to the complaint is that of the joint will which Mr. and Mrs. Olds agreed to execute. No other conclusion can be reached from the language used. However, according to the appellants' own statement, "The trust which the plaintiffs rely upon arises not from the will but from the contract between Mr. and Mrs. Olds". The appellants overlook the fact that such an agreement between Mr. and Mrs. Olds, because there was no consideration to support it when made, except their mutual promises, could be annulled or rescinded by the execution of a joint will providing for other disposition of their properties.
In the prior opinion we attempted to point out that the Oregon cases therein cited relative to the making of mutual wills decided that oral testimony might be introduced to show that separate and distinct wills executed by husband and wife were executed under an agreement between them to make mutual wills providing for the final disposition of their joint properties, which would attribute to such wills the quality of irrevocability. In none of those cases, or any other case which has been cited to or found by us, did the court hold that where husband and wife made mutual wills or a joint will specifying the final disposition of their joint property parol testimony could be introduced to vary the terms of such will or wills so as to make a *Page 649 different disposition of the property from that provided by the testators, except where fraud, mutual mistake or misrepresentation was alleged.
We have considered the following authorities cited for the first time by the appellants in their petition for rehearing, and do not find that they are in any way contrary to the conclusion reached in the original opinion herein: Pfeiffer v. Kemper, 244 Ill. App.? 474 (154 N.E. 476); Everdell v. Hill, 68 N.Y.S. 719 (58 A.D. 151); Meador v. Manlove, 97 Kan. 706 (156 P. 731); Wanger v. Marr, 257 Mo. 482 (165 S.W. 1027); Allen v.Ross, 199 Wis. 162 (225 N.W. 831, 64 A.L.R. 180); Morgan v.Sanborn, 225 N.Y. 454 (122 N.E. 696).
The petition for rehearing is denied.