dissenting.
Wolford v. Tankersley, 107 Idaho 1062, 695 P.2d 1201 (1985) was an action pursued on the theory of an unjust enrichment to the buyers of real property who were alleged by the sellers and their agent (Wol-ford) to have at all times known that the sellers wanted and expected to receive in the transaction the sum of $17,500, their asking price. In the trial court there can be no doubting that that factual issue was resolved in favor of the sellers and their agent based on a letter written by the buyers’ attorney. Other than for the letter, the testimony of the parties was at best in a state of equipoise. The trial court’s Finding V tells it all:
Thereafter, the Tankersleys and Wol-ford had several meetings and conversa*285tions. Wolford has no recollection of telling either or both of the Tankersleys the asking price, but believes he did because he always does. Mrs. Tankersley concedes he may have told her the asking price. Mr. Tankersley testified neither he nor his wife in his presence were told the asking price.
Further, regarding their knowledge of the asking price, a letter from their attorney dated December 18, 1978, states:
He stated that they would need to see Wolford Real Estate Agency if they were interested in purchasing the property. At this time, no mention was made of what the seller’s asking price was. The foregoing took place on a Sunday. Within the next day or two, Mr. and Mrs. Tankersley made an appointment to meet Mr. Wolford at his office in the evening. They met with Mr. Wolford and at that time were told by Mr. Wolford that the Empeys were asking approximately $17,000.00 for this piece of property.
I specifically asked Mr. and Mrs. Tankersley if the asking price of $17,-000.00 was talked of again, and they replied that it had not been. Id. at 1088-89, 695 P.2d at 1227.
In this Court there also can be no doubting that this finding carried the day for the sellers and their agent:
The parties stipulated that the Empeys expected to receive $17,500 for the property, and Mr. Empey testified that he became aware of the lien but “didn’t think it had anything to do with the fifteen thousand eighty-two.” In concluding that the Tankersleys were unjustly enriched, the trial court stated that “[t]he Tankersleys passively accepted the real property, knowing that under the sales documents they would not have to pay $7,361.21 of the purchase price which the sellers expected to receive and which they, at the time they made their offer, expected to pay.”
This Court has often stated that the trial court’s findings of fact will not be set aside unless they are found to be clearly erroneous. I.R.C.P. 52(a); Credit Bureau, Incorporated of Georgia v. Harrison, 101 Idaho 554, 617 P.2d 858 (1980). This Court has also stated:
“The rules of civil procedure clearly indicate that regard is to be given to the special opportunity of the trial court to judge the credibility of witnesses who appear personally before it. I.R.C.P. 52(a). Where there exists sufficient evidence in the record to support the lower court’s findings on credibility, this Court sitting without the firsthand observation necessary to evaluate witness credibility, will not set aside those findings.”
Id. at 556, 617 P.2d at 860.
Concerning the finding that the Tank-ersleys knew the Empeys expected to receive $17,500, and that they initially intended to pay that amount when they made their offer, Mr. Wolford testified that he stated the purchase price to the Tankersleys, and Mrs. Tankersley testified that Mr. Wolford might have told her the purchase price. However, she also testified that she did not remember hearing the purchase price and her husband testified that he never asked, and was never told, the purchase price. However, a letter, signed by the Tank-ersleys’ attorney, that was admitted into evidence, stated that “[t]hey [Mr. and Mrs. Tankersley] met,with Mr. Wolford and at that time were told by Mr. Wol-ford that the Empeys were asking approximately $17,000 for this piece of property.” The Tankersleys denied this part of the letter. Mr. Wolford also testified that Mrs. Tankersley represented the contract, which was being assigned to the Empeys, to be worth about $15,-000. Id. at 1065-66, 695 P.2d at 1204-05 (emphasis added).
The first set of opinions in Wolford were not released until May 22, 1984. Judge Schilling wrote his decision in Scrimsher on June 23, 1983, and was of course without the benefit of the Court’s opinion in Wolford. There is no doubt in my mind that had Judge Schilling had Wolford available, it would have changed his entire view *286of the case and the tenor of his reasoning. Additionally, it seems quite clear that Judge Schilling erred in making a decision which involved I.C. § 9-503, R., p. 48. That section deals entirely and only with transfers of real estate, which are required to be in writing.
Try as I might, I am unable to see how the section has any applicability to this controversy. The preceding section, I.C. § 9-502, requires that wills other than non-cupative must be in writing to be valid, but also allows for secondary evidence of its contents where the will cannot be shown. Obviously, § 9-502 here has no application, because it is conceded that Leda Scrimsher did execute a will in favor of her deceased husband’s children.
Moreover, I.C. § 9-504 seemingly recognizes that wills, insofar as they contain provisions for devising real property which will become effective on death — and hence are not presently effective conveyances— are not within the prohibition of § 9-503. More importantly, § 9-504, which was the backbone of McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960), provides that § 9-503 “must not be construed ... to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.” Many are the Idaho decisions which have applied the principle that statutes of fraud — indispensable evidence, Chapter 5 of Title 9, will not be used as instrumentalities of fraud. In 1971, the Court had before it an agreement involving real property which agreement was entirely oral and with no evidence of any written memorandum:
We find the district court correct in concluding that the oral contract between the parties to convey real estate was enforceable and in decreeing that appellants specifically perform by conveying fee title to The Corporation. The Idaho statute of frauds, I.C. § 9-503, requires a transfer of real property to be in writing. However, the statute does not apply when specific performance is sought and there has been partial or complete performance. I.C. § 9-504; Tew v. Manwaring, 94 Idaho 50, 480 P.2d 896 (1971); Quayle v. Mackert, 92 Idaho 563, 447 P.2d 679 (1968); McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960); Anselmo v. Beardmore, 70 Idaho 392, 219 P.2d 946 (1950). In the case before us practically all the individual terms of the original contract and the accord and satisfaction had been performed except the delivery of the deed. Though the agreement to transfer the real estate was oral, the district court properly decreed specific, performance. Brown v. Burnside, 94 Idaho 363, 365, 487 P.2d 957, 959 (1971).
It is impossible to distinguish that case from this. Here, it is undisputed that the plaintiffs forebore taking any legal action against Leda Scrimsher at the time the estate of Corey Scrimsher was being probated, and having given up that right, could not later assert it. (How they would have fared is of absolutely no consequence. That is something which always lingers in the minds of those who avoid litigation by settling.) In turn, Leda Scrimsher did make a will in their favor. Judge Schilling recognized this:
By holographic Will dated November 26, 1971, and signed by Leda S. Scrimsher on January 10, 1972, the defendant purported to devise the “Norberg” property among the four children excepting therefrom the house and buildings including the pasture, the spring and water system that supplies the home which she left to a church.
Following the initiation of the present law suit, the defendant, Leda S. Scrimsher Hall revoked that Will. R., p. 47.
Left wondering why Judge Schilling spoke in terms of a “purported devise,” it is clear that he understood that she had in fact signed her own holographic will.
Unlike Brown, but presenting an even much stronger case, here Judge Schilling first eases our review effort by finding that Leda Scrimsher “testified that she intended to make a will leaving the ‘Norberg’ property to the four children____” This *287was when the four children and Leda Scrimsher were all present at the law offices of Eli Rapaich — to which all had together repaired “for the purpose of reading Corey’s will.” As Judge Schilling explained:
The plaintiffs believed that a will was in existence leaving a portion of the real property owned by Corey and Leda to the plaintiffs. The plaintiffs believed this because their father had told them that he had prepared a will. They also knew that a will had been prepared for Corey Scrimsher by Eli Rapaich in 1964 prior to a trip outside the country by Corey. The defendant also believed that a will had been prepared.
All of the parties were surprised when Mr. Rapaich informed them that the will of 1964 had been revoked by Corey Scrimsher and there was in fact no will in existence. R., p. 42.
Judge Schilling having remarked on Leda Scrimsher’s then stated intention of making a will in the plaintiffs’ favor, added, “but, she never said she would make an irrevocable Will.” R., p. 43. Judge Schilling went on in the findings portion of his written decision:
The parties then left Mr. Rapaich’s office and a discussion took place in the Payless Drug Store Parking Lot in Lewi-ston, Idaho. Indications are that at that time the plaintiffs again expressed the belief that the decedent had left a Will. Nancy Freeman testified that at the time Leda again stated that she would prepare an irrevocable Will leaving the “Norberg” property to the plaintiffs upon her death. R,, p. 43.
With that background, there followed the exchange of letters by the attorneys which was far, far more than the evidence of the agreement which could be produced in Brown — and which brings into play the relevance of Wolford. Plaintiffs’ attorney received the following letter from Leda Scrimsher’s attorney, under date of December 21, 1971:
This letter is written to confirm our various phone and/or office conferences concerning the above estate.
This is to advise you that on December 20 I conferred with Mrs. Scrimsher tele-phónically concerning various proposals made by your client, Roger Scrimsher, concerning a settlement of the interests of the various heirs in the Corey Scrimsher estate. Mrs. Scrimsher informed me that she has drawn a will in conformity with her oral promises to the four children of Corey Scrimsher, leaving the Culdesac ranch property to these children. She advised -that she recognizes that this was her husband’s wish and she intends to fulfill the same. Mrs. Scrimsher is perfectly willing to supply you with a written statement that she will leave the Culdesac property to the Scrimsher children.
She further advises that three of the children have told her that they are perfectly satisfied with the assurances that she has made them, and that the only child who appears to be objecting in any way is Roger Scrimsher. Plaintiff’s Ex. 6 (emphasis added).
Responsive thereto, plaintiffs’ attorney wrote back two days later:
I have consulted with my client Roger Scrimsher regarding your letter of December 21, 1971 on the above estate. In reliance with your statement that your client, Mrs. Leda Scrimsher has made a will in conformance with her oral promise leaving the Culdesac property to the four children of her late husband, Corey D. Scrimsher, including my client, and that she will supply us with a written statement that she shall leave the Culdesac property to these children, my client in turn, will not contest the appointment of Mrs. Scrimsher as administratrix, nor contest whether or not his father’s mil was legally can-celled prior to his death, nor contest whether or not the property of his father’s estate is separate or community, nor make any other contest of the probate of his father’s estate.
At your earliest convenience I would appreciate receiving the written statement of Mrs. Scrimsher as set forth in your *288letter. Plaintiffs Ex. 8 (emphasis added).
The two letters easily supplied a written memorandum of the understanding of the parties if such were thought to be needed. The written statement, if given, would have been superfluous — especially where ten years later Leda Scrimsher would be heard to say that she had never made promises that she would not revoke the will which was executed in compliance with the settlement.
The pivotal statement in Judge Schilling’s decision would seem to be found in his observation that “she [Leda Scrimsher] never said she would make an irrevocable will.” On first perusal of the record, this was accepted as being the judge’s recitation of the trial testimony of Leda Scrimsher. Later arose the thought that it was merely his own observation offered in support of his conclusion that she could not be held accountable unless she had uttered some language that bound her to the proposition that the will was not subject to being revoked. To my mind it is irrelevant whether she so testified, or the judge was simply observing.1 If the 1971 conversations at the lawyer’s office, and outside, and the exchange of the two letters were all participated in by Leda Scrimsher with the secret mental reservation that she retained the option to upset the arrangement — in fact nullify it, by sometime later revoking the will which she had drawn, there was an impermissible breach of the agreement, or an estoppel, or both. In Cheney v. Jemmett, 107 Idaho 829, 693 P.2d 1031 (1984), the Court, Justice Bakes alone dissenting, recognized the requirement that a party act fairly and in good faith. Shortly after, the Court in Davis v. Professional Business Services, 109 Idaho 810, 712 P.2d 511, 514 (1985), said in a similar vein:
In every contract there exist not only the express promises set forth in the contract but all such implied provisions as are necessary to effectuate the intention of the parties, and as arise from the specific circumstances under which the contract was made. Miller v. Independent School District No. 56 of Garfield County, 609 P.2d 756, 758 (Okla.1980); Wiles v. Wiles [202 Kan. 613], 452 P.2d 271, 178-79 (Kan.1969) (“[Plrovisions not specifically mentioned in a written contract, but which are essential in carrying out its purposes, may be implied, and, when properly implied, are as binding as if written therein.”). In implying terms to a contract that is silent on the particular matter in question, only reasonable terms should be implied. State v. Fairbanks North Star Borough School Dist., 621 P.2d 1329, 1332 (Alaska (1981). Such implied terms are as much a part of the contract as those which are expressed. Wiles, supra; Demand v. Foley [11 Ariz.App.267], 463 P.2d 851, 856 (Ariz.Ct.App.1970). Davis, supra (Underscoring emphasis added, bold emphasis original).
Over forty years ago in Ohms v. Church of the Nazarene, 64 Idaho 262, 130 P.2d 679 (1942), cited in Justice Huntley’s opinion, Justice Ailshie, Idaho’s most outstanding jurist of all time, used similar language in denouncing the breaching of a contract to devise realty by the expediency of disposing of it:
[G]ood faith on the part of such surviving spouse forbids the survivor giving away a substantial part of the estate as to defeat the chief purpose of the residuary bequest. [Citations omitted.] The latter is just what has been done in this case. In such case, it is unnecessary to prove actual or intentional fraud. The fraud will rather be determined “by the facts and circumstances under which the *289transfer was made and from which the law imputes a fraudulent motive.” (California Consol. Min. Co. v. Manley, 10 Idaho 786, 81 P. 50; 9 Am.Juris., p. 372, sec. 26.) In other words, if the result accomplished defeats justice, it will amount to fraud. Id. at 272-73, 130 P.2d at 684 (emphasis original).
Earlier in that opinion Justice Ailshie reasoned that:
The contract should be read and understood in the belief that it was entered into in good faith by both parties; and certainly it would not be good faith, on the part of the survivor to give away the property acquired through the will of the decedent, to prevent the final residuary devisees named in the will from tak-ing_ Id. at 271, 130 P.2d at 683 (emphasis original).
That controversy centered around a written mutual agreement of spouses to abide by contemporaneously executed wills. The agreement between the two spouses was much the same as the agreement here entered into by Leda Scrimsher and the children. Implying a good faith provision on the part of contracting parties was not unheard of when the Court later applied it in Cheney and again in Davis.
It cannot be gainsaid but that Mrs. Scrimsher was commencing to violate her express promise to the children when she listed the Norberg property for sale, and they are patently entitled to pursue appropriate relief.
This case cannot be reconciled with Wol-ford, Cheney, Davis, and Brown and those many cases cited in the latter. Once again, we are reminded that:
The most intolerable evil, however, under which we have lived for the past twenty-five years, has been the changing and shifting character of our judicial decisions, by which we have been deprived of the inestimable benefit of judicial precedents as a safeguard to our rights of person and property.
II.
The opinion of Justice Bakes, in what appears to be an attempt to devaluate the dissents, is apparently aimed at bolstering a discernibly weak majority opinion.
When Justice Bakes both opens and closes his opinion by observing that this is a “close case,” one can readily surmise the interpretation that the plaintiffs very well might have prevailed on the law, but he prefers the result that they do not. This he is able to do by putting out of mind that which Justice Huntley has made abundantly clear, that his concern is with the law, with Judge Schilling’s misconception of the proper law, and the misapplication of proper law to the facts. Justice Bakes concludes his opinion with the statement that he believes the findings -are sustained by the record. It is not readily understood which justice he accuses of believing otherwise, yet it is upon such a slender reed that he concurs in the opinion of Justice Shepard who thereby commands a majority.
. The actual testimony of Mrs. Scrimsher on this point reads as follows:
Q. There has been testimony that you said I’ll make an irrevocable will or irrevocable will it’s been pronounced; did you make a statement like that?
A. No, I didn't. It was just a will. R., Vol. 2, p. 211.
It is readily seen that Mrs. Scrimsher was not testifying that she had in fact warned the children that the will she would write would be revocable, leaving them to take their chances on a possibility as to what the future might hold. A reading of the record, including her holographic will, shows Leda Scrimsher to be an intelligent, educated, and religious person.