I find myself finable to agree with the majority of the court in the disposition which is made of this case. The trial court has found that the three sisters, Matilda, Catherine and Mary L. Everdell,. entered into an agreement each with the other that each should make her last will and testament, and should therein give, devise and bequeath to the survivors or survivor all of her property, so that the sister last surviving should receive the entire estate of the two-sisters who predeceased her, and that the survivor should make and leave a last- will and testament giving her entire estate, including the property derived from the two deceased sisters, to all the nieces of the sisters, share and share alike; that Matilda and Catherine both died prior to Mary, each leaving a last will and testament which disposed of her property in accordance with the agreement. Matilda, the first to die, devised her property to Catherine and Mary, except that she gave to her brother,-Francis Everdell, the use of certain property during his lifetime, and upon his death, or if he should sooner pay over the same, to the surviving sisters, the same to go to them absolutely. Catherine was next to die, and she gave and devised in like manner her property to' her sister Mary, making the same provision therein with respect to Francis Everdell as'-was contained in Matilda’s will. Under these wills Mary took and received the entire property and estate left by the sisters as aforesaid. Mary, after having received the estates of her sisters, repudiated the agreement arid by her last will and testament disposed of the greater part of her estate in violation of the provisions of the agreement. The court further found that such agreement was a valid, binding agreement, and decreed performance in accordance with it, as demanded in the complaint.
I am of opinion that the finding of the court is clearly supported by the testimony, and answers the requirements as to the degree of strictness of proof required by the rule laid down in Gall v. Gall (64 Hun, 600). The parol testimony given in the case is clear and distinct and practically uncontradicted to the effect that the sisters, a long time prior to their death, agreed among themselves to make mutual wills, so that .the ultimate disposition of the property shotild. become vested in their nieces, parties to this action. The wills support the oral testimony. That of Matilda bore date April 4, 1881; *163of Catherine, July 26,1881; and of Mary, July 22,1881. The wills of the two sisters first named are almost exactly similar in language, and entirely so in substance. Mary’s will is in substance the same, except that she makes a devise to the defendant Elizabeth Hill of all her right, title and interest in her house and lot. It nowhere appears in the testimony that the sisters had any knowledge of the contents of the others’ wills; and aside from the agreement to make mutual wills, there is no evidence showing, or tending to show, that Matilda and Catherine had knowledge of the devise by Mary of property to Elizabeth L. Hill. While it is undoubtedly true that this agreement to make the mutual wills was invalid, and could not be enforced so long as it remained unexecuted, and while each had the right to make the will which she did, or to make a different will prior to the death of either of the sisters, irrespective of the terms of the agreement, yet it is equally true that one sister could not, as against the others, accept the benefits which she derived from the agreement, and defeat its whole scope and purpose after having so received its benefits. The purpose of the agreement was to give to the surviving sisters or sister the absolute right of use of the whole estate for any purpose which she choose; and undoubtedly the surviving sister could have used the whole of all the estates for any purpose which she desired. But she became bound, both by the benefits which she received and the terms of the agreement, to bequeath and devise the residuum to the nieces.
As applied to the facts of this case, however, the agreement having been performed, and the surviving sister having received its benefits, the right of the nieces to the property became absolute. It was not essential or necessary that any will should have been made by Mary to vest title in them, or secure their rights. They took, not by virtue of the will, but by virtue of the agreement which had been made and executed by the two sisters who had died. If Mary had left no will, their rights would not have been defeated, and the making of a will contrary to the agreement did not operate to divest them of such right. The Statute of Wills, under such circumstances, manifestly can have no application, for it is not the will of Mary which is to be effectual to vest in the nieces the title of the property; they take by virtue of the executed agreement. The method by which that agreement was to be carried into effect was *164the execution of a will; hut the failure to comply with the terms of the agreement in this respect does not on this record have the effect of defeating their rights.
So far as the bequests in the wills to Francis Everdell is concerned, there was no departure from the agreement. In this respect the three wills were alike. The bequest itself was in the nature of a necessity and a desire to aid the brother, and was evidently shared in by all of the sisters, as the wills upon this subject are the same. Francis L. Everdell was indebted to the sisters for moneys and certain stocks loaned to him, belonging to them. . The stocks he had hypothecated and raised money thereon for use in his business, and the sisters evidently intended that these debts should be discharged and the stocks returned during the lifetime of Francis, and, if not, at his death. The necessity for the bequest in this form was due to the circumstance of Francis’ indebtedness, and whatever be its legal character, it did not have the effect of showing any departure from the agreement. In any event, Mary L. Everdell could not be heard to say, nor can her representatives, that this bequest is a départure from the agreement. The wills contained it; Mary received the property; and after the death of her two sisters she proceeded to recover the stock and collect the debts which were due and owing from the brother, and has, therefore, placed a practical construction upon the wills and her right thereunder. She had reduced to her own possession, prior to her death, all of the property which came to her through the wills of her sisters, including this.
Aside from this feature, the’terms of the wills correspond with the proof and both together answer the requirements of the law and clearly support the finding of the learned court. Indeed, as I view this case, unless the agreement for mutual wills be supported, it may as well be said that the law. does not authorize, or validate, such agreements, for here the existence of the agreement is clear, cogent and convincing, and the proof shows its execution by two of the sisters. Upon the facts, -therefore, I think the action can ' be maintained and the judgment is proper, if it can be supported within legal rules. As to the latter question, I entertain no doubt whatever, for, as I view the law laid down by the Court of Appeals in Edson v. Parsons (155 N. Y. 555), such question is authoritatively determined. Therein an action was brought to enforce a *165mutual agreement, against the testator of the survivor of two sisters, to make a will devising their property to a brother, as the ultimate residuary legatee. The action failed, but only for the reason that the proof was insufficient to establish the fact of the making of the agreement. It was sought to be sustained by a consideration of the uniform habit of thought and action of the two sisters, and the terms of the wills which they made. Aside from this, there was no proof showing any agreement, and the court held it insufficient for such purpose. In discussing the question, however, the court says: “ I think that there is no force in the objection of the respondents that, if the agreement was proved, the plaintiff’s testator was incapable of enforcing it by reason of his not being a party to it. If it existed, it was for his benefit and advantage and he had a standing in equity to enforce it against the legatees and legal representatives of the testatrix.”
Two things were decided in that case: First, that such an action could be maintained and, if supported by sufficient proof, the agreement enforced; and, second, that the ultimate beneficiary under the agreement had standing to maintain the action, although not a party to the agreement. It seems clear, therefore, that under the facts and the law, as presented by this case, the plaintiffs are entitled to the benefits of the judgment which has been rendered. The Statute of Frauds constitutes no bar to the action. It would have been a complete answer to it had the agreement remained executory, but it having been executed, and Mary L. Everdell having received the benefits under it, she was bound to vest the property, which she devised, in accordance with its terms; and, having failed, equity will enforce the agreement and make the disposition which she ought to have made. (Healy v. Healy, 55 App. Div. 315.) All of the eases relied upon by the appellants in support of the statute as a bar are distinguished by the fact that in each the alleged agreement remained executory, and no performance was had under it. In the present case there was clear consideration by the devise of the property to Mary and her enjoyment of it. The doctrine of Lawrence v. Fox (20 N. Y. 268) and kindred cases has no application. That was an action at law to enforce a promise made by one party to another for the benefit of a third person. This is an action in equity for the-specific performance of a contract and, in effect, to impress a trust in favor *166of the parties hereto upon the property which came to Mary L. Everdéll and was devised by her. The principles applicable in such a case and that of Lawrence v. Fox (supra) are entirely dissimilar.
I think, therefore, that the. judgment should be affirmed. ■
O’Brien, J., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event.