The relief demanded in the complaint, that the original last will and testament of the plaintiff and Mary Hermann be established and proved as the last will and testament of said Mary Hermann, deceased, and that letters testamentary be issued to plaintiff as sole executor thereunder, is not in accordance with the views expressed by this court in reversing the decree of the Surrogate’s Court admitting the joint will to probate. We then said, referring to the plaintiff’s claim that the joint will was executed in pursuance of an agreement between the decedent and himself, “ If such an agreement existed, that fact and its legal results could only be determined by the Supreme Court in an action in equity, and the manner of determination was not to admit a former will to probate, although such former will was the result of a contract between the testator and a third party governing the testamentary disposition of their property, but to sustain the contract, if established by clear and convincing testimony and supported by an adequate consideration and compelling its performance by the heirs of the decedent, or otherwise granting adequate relief.” (Matter of Hermann, 178 App. Div. 182, 189; affd., without opinion, 222 N. Y. 564.) If the plaintiff is entitled to relief, it is not by establishing the joint will of 1895 as the last will of the decedent, because it was not'her last will, but by compelling the performance of her obligations by her children and devisees under the will of 1914. As was said by the Court of Appeals in Phalen v. United States Trust Co. (186 N. Y. *297178): “ The principle upon which such agreements are sustained was stated by Lord Camden as early as the year 1769, in Dufour v. Perraro [Dufour v. Pereira] (Hargrave’s Jurid. Arg. 304), and it was not then new. That was a case of mutual wills, in which the learned jurist said (p. 309) : ' Though a will is always revocable, and the last must always be the testator’s will, yet a man may so bind his assets by agreement that his will shall be a trustee for performance of his agreement. A covenant to leave so much to his wife or daughter, etc. * * * These cases are common; and there is no difference between promising to make a will in such a form and making his will with a promise not to revoke it. This court does not set aside the will, but makes the devisee, heir or executor, trustee to perform the contract. * * * Ho man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim ■under him. This court is never deceived by the form of instruments. The actions of men here are stripped of their legal clothing, and appear in their first naked simplicity. Good faith and conscience are the rules by which every transaction is judged in this court; and there is not an instance to be found since the jurisdiction was established where one man has ever been released from his engagement after the other has performed his part.’ ” And the court said in the case last cited that the principle was fully and firmly established that a man’s representatives shall be trustees of a resulting trust for the benefit of those to whom he has bound his estate. It is upon this principle that plaintiff must rely to establish his right to relief — not to obtain a judgment that the will of 1895 was the last will of the decedent, but that the provisions of that will shall be decreed to be binding upon the estate of Mary Hermann and upon the defendants.
The judgment dismissing the plaintiff’s complaint upon the merits is certainly most drastic in its results to the plaintiff. It not only deprives him of all interest in the estate and property of the woman who had lived with him for thirty-seven years as his wife, to whom he had been married publicly by a clergyman in 1890, twenty-five years before her death, but it adjudges that the real estate held in their joint names as *298husband and wife does not belong to him as survivor. The evidence shows that they had lived and labored together for all these years harmoniously and affectionately. When Mary Hermann’s husband, Goetz, left her in 1878, five years after their marriage, never to return, she had two children, her son Christopher and her daughter Kate, the defendants and respondents here. As she was married to Goetz in 1873, the eldest of these children could not have reached the age of five years at the time of the separation. It was the plaintiff and Mary Hermann who brought them up to manhood and womanhood and who supported and maintained them until they married and went their way. It is true that they now attack the plaintiff and charge him with working them hard in their younger days and with failing to properly compensate them, but it must be remembered that in the effort to deprive the plaintiff of the property of the decedent to which he asserts he is entitled, they have not hesitated to blacken the character of their own mother. The plaintiff alleging in his complaint a lawful marriage to Mary Hermann, is met with the denial in their answers that the marriage was lawful, and an assertion that he knew when he married her that their father was living, and the learned trial judge has so found, although the record may be searched in vain for any evidence to justify such finding. They have discovered their father, who deserted them in their infancy, who never contributed a penny to their support or to the support o"f their mother, and who testified that he had been hving with another woman as bis wife for some twenty years, to testify that Hermann knew of his existence. But Goetz does not testify that the occasions on which he met Hermann were after the remarriage of his wife in 1890. And of course one of the peculiar results of the judgment appealed from might be that the recreant husband would be entitled to some interest in the real property of his wife, although he defaulted and the findings and judgment as made appear to make no provision for him. The court is not trying the morals of Hermann, the plaintiff, and any criticism on his relations with Mary Hermann must apply to her as well as to him. When she made the will of 1914, with the connivance of her son, without notice to Hermann and without his' consent, *299she called him her “ dear husband ” and expressly stated that the reason she made no bequest to him was that he had ample means of his own “ and for no other reason.” The learned trial judge refused every request for findings of fact presented by plaintiff save those as to the execution of the two wills and the formal legal proceedings. The plaintiff is certainly in evil case, because if he had predeceased Mary Hermann his entire estate, not only that held in the joint names of the parties and the other property purchased as he says with his money but placed in his wife’s name, but also the “ ample means of his own ” referred to in her second will, would have immediately passed to his wife in absolute ownership by virtue of the joint will of 1895. He never changed it, and during all these years he supported and maintained her as he should, and preserved the estate, with the assurance to her that it would all belong to her if he died before her. The obvious result of the judgment appealed from is such as to invite the scrutiny of a court of conscience governed by principles of equity and fair dealing between man and man.
We think this result should not be allowed to stand. There are cases where joint wills have been executed providing for a life estate in the survivor with remainder over, and where the survivor having taken possession under the devise, has attempted to make a new will disregarding the remaindermen, and in these cases the courts have invariably held that the will itself furnished the necessary evidence of an agreement between the parties as to the disposition of their property and have held the survivor to his life estate. Such were Rastetter v. Hoenninger (151 App. Div. 853; reversed on other grounds, 214 N. Y. 66); Frazier v. Patterson (243 Ill. 80; 90 N. E. Rep. 216); Bower v. Daniel (198 Mo. 289); 1 Redfield on Wills, 182. And the courts have frequently enforced agreements under which property was conveyed to a grantee upon the promise that he would execute a will in favor of the grantor (Mutual Life Ins. Co. v. Holloday [Van Vorst, J.], 13 Abb. N. C. 16; Sherman v. Scott [Smith, P. J.], 27 Hun, 331), as well as other agreements based upon sufficient consideration, by which the contracting party promised to devise his estate in some particular manner. (Adams v. Swift, 169 *300App. Div. 802; de Hierapolis v. Reilly, 44 id. 22; affd., 168 N. Y. 585; Kerker v. Levy, 140 App. Div. 428; affd., 206 N. Y. 109; Parsell v. Stryker, 41 id. 480; Freeman v. Freeman, 43 id. 34; Gall v. Gall, 64 Hun, 600; Winne v. Winne, 166 N. Y. 263.) In these cases the courts have uniformly sustained the principle that if one of the contracting parties induces the other so to act, that if the contract be abandoned he cannot be restored to his former position, the contract must be considered as perfected in equity, and a refusal to complete is in the nature of a fraud. (Willard Eq. [Potter’s ed.] 284, 286; Sherman v. Scott, supra.) A will made in pursuance of such a contract is irrevocable, and a second will offered as a revocation is ineffectual for that purpose. (Adams v. Swift, supra.) As Judge Van Vorst said in Mutual Life Ins. Co. v. Holloday (supra): “ If the agreement was valid in law and in equity, it would be a mockery of justice to say that having executed the will, she fully satisfied her part of the agreement, and was at liberty to revoke it the next- day. The right secured by her husband was substantial, and could not be defeated by another will.” But the respondents contend, and the learned trial justice has sustained their contention, that in the case at bar there is no evidence that the joint will of 1895 was made in pursuance of an agreement between the parties that it should be irrevocable. This is the difficulty referred to by Mr. Justice Scott in the Rastetter Case (supra) as often preventing the enforcement of mutual wills, and he says: “ It was this difficulty which defeated the plaintiff in Lord Walpole case,* and in Edson v. Parsons,† in neither of which cases did the wills themselves contain any evidence of such an agreement except such as might be found in the identity of the dispositions contained in the wills sought to be established as mutual wills.” But the will of 1895 in the case at bar was not a mutual will. In such cases it may well be that the wills were executed without either party knowing that the other had executed his will, and there is no necessary inference that the wills were the result of any mutual or reciprocal agreement. “ But, where the parties execute their wills by the *301same instrument, it is not possible that such course could be adopted without some previous understanding or agreement between them. Each would necessarily know what disposition the other had made of his property. This inference is especially strong where the parties are husband and wife, and where they have a common interest in the welfare of the devisees. * * * If evidence of a mutual compact is necessary in such case, that evidence is afforded by what the parties did. We 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 would 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.” (Frazier v. Patterson, supra.) And this doctrine is affirmed by this court in the First Department in Rastetter v. Hoenninger (supra) where Mr. Justice Scott, writing for the court, says: “ When we come to consider a joint will, such as is presented in this case, I am of opinion that the will itself furnishes the requisite proof, not conclusive, perhaps, but sufficient to establish an agreement in the absence of any evidence tending to negative it. Judge Gray,* speaking of Puf our v. Pereira, remarks: In that case, however, the will was in an instrument which was jointly executed by husband and wife and, while not a conclusive, it was a very material circumstance to be considered.’ In Lord Walpole v. Lord Orford, Lord Chancellor Loughborough had occasion to refer to Dufour v. Pereira, in which he had been of counsel, and stated that the will, jointly executed by the husband and wife in that case, was considered by the court not as a will of the wife (who was the survivor), but as her contract with her husband for a valuable consideration, and that when she survived and had accepted its terms she bound herself to the conditions under which all the property was given by the husband’s will. In my opinion that just rule should be applied to the present case. The will contained all; the necessary *302elements of a contract, including a valuable consideration. It is true that the paper does not contain the word contract ’ or agreement/ and that there is no express promise in it that the survivor will carry out the scheme of disposition to which both agreed. This, however, seems to me to be immaterial if the fact of an agreement can be found in the instrument itself. That the parties had agreed as to the disposition of their property is evident from the will itself and from the fact that they jointly executed it. The evidence that the will was the result of an agreement is shown upon the face of the paper, in this respect differentiating it from mutual or identical wills which exhibit no intrinsic evidence that they were made in consequence of an agreement between the parties.” This conclusion was affirmed by the Court of Appeals (214 N. Y. 66), although the case was reversed on other grounds. That court said (at p. 71), through Miller, J.: It is also too well settled to require the citation of authority that a person may make a valid agreement to make a particular testamentary disposition of his property, but see the opinion of Gray, J., in Edson v. Parsons (155 N. Y. 555, p. 567), the case mainly relied upon by the appellants. As a will an instrument is revokable at pleasure, but as a contract, if supported by an adequate consideration, it is enforceable in equity. There are no facts disclosed in this case aliunde the will itself to establish a contract, and the important question, therefore, is whether the instrument itself imports a contract, as a majority of the Appellate Division have held. We are not prepared to say that the mere fact of a conjoint, reciprocal testamentary disposition by two persons establishes a contract not to revoke, although that seems to have been Lord Camden’s ruling in Dufour v. Pereira (1 Dickens, 419; 2 Hargrave’s Juridical Arguments, 277, 304), a case often cited. Such wills are rare and, it may be, more nearly import a contract than separate mutual wills such as were involved in the leading case of Lord Walpole v. Lord Orford (3 Ves. Jr. 402), and in Edson v. Parsons (supra). In the case at bar the testators took the pains at the beginning and again at the end of the will to declare this and this only to be our last mutual and joint will and testament.’ The repetition of that phrase in hcec verba and especially of the *303words ‘ and this only ’ strongly tend to indicate an understanding that neither was to make a different testamentary disposition of his property in the future, for otherwise those significant words twice carefully used were meaningless. The language of the disposing clause imports the joint disposition of the collective property of both, not the independent disposition by each of his own. It is ‘ we,’ not : I, Franz, and I, Elizabetha,’ give the income of ‘ our,’ not of ' my,’ real and personal property. They did not in express words give, devise and bequeath the remainder upon the death of the survivor, but they said ‘ after the death of the survivor of either of us, all our property both real and personal shall he divided in the manner following;’ a phrase which again strongly suggests, if it does not alone import, a contract. The testators, husband and wife, provided first for the survivor and ultimately for their children, in whose welfare they were both mutually concerned. Although no one of the foregoing considerations standing alone might be sufficient to establish a contract, the cumulative effect of all when viewed together is so persuasive as unexplained to prove that the joint will was made pursuant to an agreement.”
The significant language of the joint will in the Rastetter case, commented on by the Court of Appeals, is identical with the language of the joint will in the case at bar. Indeed, it was stated on the argument that the will in the case at bar was prepared by the same real estate agent or notary who drew the Rastetter will. Substantially the same language is used in making, as was said in the Rastetter case: “ the joint disposition of the collective property of both, not the independent disposition by each of his own.” (214 N. Y. 72.) In the case of Bower v. Daniel (198 Mo. 289), cited in Judge Miller’s opinion, the Supreme Court of Missouri said: “ The court found that the mutual will was made between the husband and the wife in pursuance of a previous arrangement between them, and this we think is borne out by the will itself, and, there being no evidence to the contrary before us, that finding cannot be questioned.” (See, also, Williams v. Williams, 96 S. E. Rep. [Va.] 749.) It is not essential to the intervention of equity in order to prevent the accomplishment of fraud, that an agreement should be established by *304direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made; and may have reinforcements from the evidence of the conduct of the parties at the time and subsequently. There was evidence in the case at bar from the brother of the decedent and from the brother and sister of the plaintiff, of express declaration by the decedent at the time of the execution of the joint will that it was drawn in pursuance of an agreement that it should be irrevocable, but the entire history of the parties, all the surrounding circumstances, and the various purchases of real estate and mortgages by the plaintiff with his own money, the title being taken in the name of his wife or in her name jointly with him, his continued maintenance and improvement of the property, the fact that during all the years he never made a new will, and the secret and clandestine method of the execution by the decedent of the new will in 1914, all these things point unmistakably to an agreement that the joint will was to be irrevocable and to last during the life of each of the parties and until the death of one or the other released the obligation. People in their circumstances do not make wills without deliberation, and it is impossible to conceive this man and woman journeying to the notary’s office and executing this document with the idea that either one could change it without the consent of the other. Lord Camden in Dufour v. Pereira (supra), cited by the Court of Appeals in Phalen v. United States Trust Co. (186 N. Y. 178), declares in reference to mutual wills (which must mean joint wills because the will under consideration was a joint will): “ A mutual will is a mutual agreement * * *. The mutual will is in the whole and every part mutually upon condition, that the whole shall be the will.—■ There is a reciprocity, that runs throughout the instrument. The property of both is put into a common fund, and every devise is the joint devise of both. This is a contract. If not revoked during the joint lives by any open act, he that dies first dies with the promise of the survivor, that the joint will shall stand. It is too late afterwards for the. survivor to change his mind; because the first dier’s will is then irrevocable, which would otherwise have been differently framed, if that testator had been apprized of this dissent. Thus is the first *305testator drawn in and seduced by the fraud of the other, to make a disposition in his favor, which but for such a false promise he would never have consented to.” (2 Hargrave’s Jurid. Arg., pp. 307, 308.) And it is further stated in the report of the case (p. 307) that counsel having “ cited an authority to prove it, that where two had made a mutual will either of them might cheat his partner, foeda machinatione, by a secret will to disappoint the joint disposition, because they are two distinct instruments,” Lord Camden said: “ The law of these countries then must be very defective, and totally destitute of the principles of equity and good conscience; for nothing can be more barbarous, than a law, which does permit in the very text of it one man to defraud another. The equity of this court abhors the principle * * *. [1 Dickens, 419, at p. 420.] It [the will] 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 b'e done by the survivor by another will.” Even if we assume that the vitally interested witnesses, whose testimony is of doubtful competency under section 829 of the Code, told the truth as to the deathbed statements of Mary Hermann, this was not the notice to which the plaintiff was entitled. What could he then do? Was he to engage in controversy with a woman on her deathbed who had lived with him on affectionate terms as his wife for thirty-seven years? Was he bound to leave her and hurry off to a lawyer to begin action against her in her last hours ? The learned trial justice overruled the objection to the testimony of the son Christopher as incompetent under section 829 of the Code over defendants’ exception, apparently upon the ground that as plaintiff was said to have been present, the objection was not available. This did not make this party to the action and vitally interested witness, competent to testify. (Griswold v. Hart, 205 N. Y. 384.) His sister and his wife and her fifteen-year-old child were allowed to testify in corroboration of his statement, the boy saying that Hermann, the plaintiff, asked her if she had made a will “ and I could just hear her whisper *306' Yes I did.’ ” TMs is not the kind of notice that equity and fair dealing require. Mary Hermann lived with the plaintiff for twenty years after the execution of the joint will, supported and maintained by him and with the assurance to her during all this time that in case of his death she would inherit all his property. It will not do to say that she received no benefit because he did not die, any more than it would be permitted to a policyholder who paid his premiums by note to say there was failure of consideration because he did not die or his property was not burned. (Turnipseed v. Sirrine, 57 S. C. 559; 35 S. E. Rep. 757.)
These considerations lead us to the conclusion that the finding of the learned trial justice that there was no evidence of an agreement or contract between the parties as a basis for the joint will of 1895 is contrary to the evidence and contrary to law, and the judgment is, therefore, reversed on this ground and judgment' directed for the- plaintiff in accordance with this opinion. This court reverses so much of the 5th finding of fact as declares that “ at the time the plaintiff and Mary Hermann, deceased, went through the said marriage ceremony on May 11, 1890, the plaintiff knew * * * that the said John C. Goetz then was still living and the husband of said Mary Hermann;” also the 6th, 7th, 8th and 9th findings of fact, as contrary to the evidence; also all of the conclusions of law. And this court finds the facts as requested by plaintiff (which findings were refused by the learned trial justice) numbered 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 34, 35, 36, 38, 39, 40, 41. We also find the following conclusions of law as requested by the plaintiff and refused by the learned trial justice: Nos. 1, 2, 3, 4, 5, 6, 7, 8; and that plaintiff is entitled to a decree establishing the provisions of the joint will of 1895 as irrevocable and binding upon the defendants as heirs and devisees of Mary Hermann, deceased, under the will executed by her in 1914, and upon her estate; establishing the title of the plaintiff in fee simple absolute to the real property on First avenue, Manhattan, Kosciusko street, Brooklyn, and in College Point, L. I., and to the personal property of deceased; enjoining the defendants from asserting title to said real estate or interfering with the plaintiff’s possession thereof as sole owner *307in fee simple absolute, and to the personal property of said Mary Hermann, and enjoining and restraining the defendants Ludwig and Hermann from further proceeding with the partition suit instituted by them in this court in the county of New York. An order embodying these conclusions in proper form should be prepared and presented for signature upon notice.
The judgment dismissing complaint upon the merits should be reversed, and judgment directed for the plaintiff in accordance with opinion, with costs.
Jenks, P. J., Mills, Rich and Putnam, JJ., concurred.
Judgment dismissing complaint upon the merits reversed, and judgment directed for plaintiff in accordance with opinion, with costs. Order to be settled on notice before Mr. Justice Kelly.
Lord Walpole v. Lord Orford (3 Ves. Jr. 402).— [Rep.
Edson v. Parsons (155 N. Y. 555).— [Rep.
Edson v. Parsons (155 N. Y. 555).— Rep.00