Unless the rule is to be changed that the mere existence of a joint will may not in and of itself establish an agreement to refrain from altering or revoking the testamentary disposition of the survivor, it seems to me that the judgment appealed from must be affirmed. Certainty and predictability in the law furnish a sound basis for the rule that such an agreement must clearly appear from the evidence. It is not to be found in vague or doubtful implication. I vote to affirm for the reasons stated in the opinion by Bergan, J., at the Appellate Division.
Chief Judge Desmond and Judges Froessel, Burke and Foster concur with Judge Fuld; Judge Van Voorhis dissents in an opinion in which Judge Dye concurs.
Judgment reversed, with costs in all courts, and matter remitted to the Supreme Court for further proceedings in accordance with the opinion herein.