In the State of New York, but in the German language, Ludwig Mottek and Margaret Mottek, executed in 1946 a joint will, a dispute as to the terms of which has resulted in this action in equity. The testators, who had lived most of their lives in Germany, were husband and wife. The instrument was entirely handwritten. They had two daughters, who are plaintiffs in this action against the executors of the wife.
The words which give rise to the controversy are these: “ we spouses mutually appoint ourselves heirs, if neither one of us remarries. In the latter case there would have to be a prior settlement with our children. Therefore the survivor of us is the sole heir of the predecedent, whereas our children are appointed heirs of the last decedent spouse.”
Shortly after Ludwig’s death in 1950 Margaret executed a new will in which she revoked the 1946 joint will, but made the two daughters sole beneficiaries; but in 1955 she executed a new will; and although she there provided for the two daughters, she did so by dividing her property into two parts and setting-up a trust for the payment of the income to the benefit of each daughter for life.
The remainder of the trust for the daughter Helene Arnhym was given to Helene’s issue, who survived her; the remainder of the trust for the daughter Ilia Rich first was constituted a trust for life for her husband, and the remainder was given to *91nieces and nephews of the testatrix, the children of her brother Albert Kastan.
Between the death of Ludwig, and the execution of the first new will by Margaret, the two daughters, Helene Arnhym and Ilia Rich each executed a release and assignment in the usual form to their mother, Margaret, in respect of the estate of their father Ludwig.
In identical language instruments released and assigned “ unto my mother, Margaret Mottek * * * all of my right, title and interest, both legal and equitable, in and to any and all property” of Ludwig ‘1 that I now or hereafter may claim, demand, own or be or become vested with or entitled to under or by virtue of any of the terms, provisions, conditions and trusts contained in any Last Will and Testament of my said father ”.
In this action in equity the two daughters seek to undo the trust provisions for their benefit in their mother’s last will; and on the theory that the mother was bound by an irrevocable contractual undertaking with her husband to devise all the property she had obtained through her husband’s will absolutely to the daughters, plaintiffs seek a decree in equity having this result upon the mother’s estate. After a trial, the court at Special Term granted judgment for the defendants.
On appeal plaintiffs argue that the mother’s last will made " no provisions ’ ’ for the plaintiffs ‘ ‘ as absolute heirs ’ ’ but provided “ only for a trust ”; and they describe as the theory of their action, the contention that this testamentary disposition by the mother " was unlawful and illegal and in violation and breach of the agreement and understanding had with her husband Ludwig Mottek and in violation of the promises and representations made by her in the reciprocal will agreement ”.
There is a recognized difference between a joint will and mutual wills; but this difference is largely in form and manner of execution. When it is claimed that a testator who has executed either a joint or a reciprocal will is bound not to make a later and different disposition of his property, the obligation arises on familiar principles of contract and the role that the instrument or instruments play is to afford evidence of that contract.
The joint will or the reciprocal wills are read to gain enlightenment on an intention, if any, of the testators to bind themselves against subsequent inconsistent testamentary disposition of property to which they have title.
A fairly good logical case may be made out that the mere fact alone of executing a joint will can be enough to establish *92prima facie an agreement by each not to make a different disposition without some notice before the death of either. But this result has been squarely considered and rejected in New York. (Rastetter v. Hoenninger, 214 N. Y. 66.) “ 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 * * * a case often cited. Such wills are rare and, it may be, more nearly import a contract than separate mutual wills ” (Miller, J., p. 72).
In Rastetter v. Hoenninger the court closely examined the text of the joint will to search out the intention of the testators. Words were weighed carefully, one by one, to probe into the possible contractual implications of the document because the court was essentially seeking to determine whether there was ‘ ‘ a valid agreement ’ ’ to make ‘‘ a particular testamentary disposition of his property ” (p. 71).
In the end, it was not the mere fact of a joint will having been made, or of any singular expression used, but the totality of the effect of the language; and form of its usage, which led the court to hold there was a binding contract.
Judge Miller concluded that 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 ” (pp. 72-73).
This opinion is a very careful description of a narrowly circumscribed rule in New York as to what in such circumstances will constitute a testamentary contract; and it is a rule which ultimately turns upon the factual evaluation of each testamentary text and the events surrounding casting of the text which may throw light upon the contractual intention of the parties beyond the dispositions immediately in hand. And this, of course, has been a consistent direction of decisional law in New York in considering joint wills (Tutunjian v. Vetzigian, 299 N. Y. 315) and mutual wills (Wallace v. Wallace, 216 N. Y. 28; Edson v. Parsons, 155 N. Y. 555; Matter of Bekker, 283 App. Div. 609).
When we look closely at the text of the will before us we see no express limitation on the power of the other spouse to make a different testamentary disposition. In two places they gave each other their property without any term of restriction except remarriage, i.e., “ we spouses mutually appoint ourselves heirs, if neither one of us remarries ’ ’; and " the survivor of us is the sole heir of the predecedent ”.
*93No such powerful expression of contractual finality was here as the words “ this and this only to be our last mutual and joint will and testament”, that, appearing twice, once in the beginning and once at the end of the will, the court in Rastetter v. Hoenninger found to have marked significance on contractual intent (p. 72). Indeed, Judge Miller noted that the words “ and this only ” in that will 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 ” (p. 72).
We find no inference of contractual limitation in any of the expressions of the instrument before us. When the words are closely examined it is to be seen that the husband and wife used a different expression when dealing with themselves as beneficiaries from that which they used in dealing with their two daughters.
They said “ the survivor of us is the sole heir ” of the other; “whereas” (a word suggesting transition to antithesis) the daughters “ are appointed heirs of the last decedent spouse ”. It seems a fair inference, and we would not in any event attribute error to the court at Special Term for adducing it, that greater stability in the benefit was thus intended by each spouse for the other than for the children.
It is argued by appellants that “ sole ” was appropriate to the single beneficiary envisioned as between the spouses themselves; but could not have been used accurately as to two daughters, and hence its omission as to them had no significance. But we think it had greater significance in omission as to the daughters than number. As to the spouses, it surely meant an interest in each other’s property that would be complete and plenary; and as to the daughters, its omission in close context seems to negative, at least, any firm contractual obligation between husband and wife to make unconditional gifts to the daughters; and that is the focal point of this litigation.
No substantial error has been shown on this record on the limitations placed by the court on the testimony of the German lawyer. The accuracy of the English text before us is conceded and the intrinsic language as thus accurately translated is the guide to intention of a New York will under New York law. Besides this, no sufficient offer of testimony in the scope suggested was made on the trial.
The judgment should be affirmed, with costs.