The question presented on this appeal is whether property acquired by a surviving wife after the death of her husband is impressed with a trust for the benefit of those provided for under the terms of the joint will. In my view, law and equity both require that this question be answered in the negative.
A joint will is an instrument that when viewed solely as a will is revocable at pleasure, but when, considered as a contract, if supported by adequate consideration, may be enforceable in equity (Rastetter v. Hoenninger, 214 N. Y. 66, 71). The majority have concluded that this joint will contains a contractual promise which binds the disposition of the after-acquired property of the surviving spouse. I disagree. We all agree that there is a joint will between decedent husband and his wife, who survived. But its language and the surrounding circumstances do not clearly spell out any promise to have its terms binding on more than the property contemplated by the parties at the time of the death of the first of them. On the contrary, the last sentence in the second paragraph of the joint will expresses an intent to bind merely the decedent’s estate as follows: “It is the mutual wish and desire of each of us that the survivor of us shall have the full use and power to consume the principal of the décédent’s estate during his or her lifetime, except the right to dispose of the same by Will ” (emphasis supplied). Similar references to the estate of the decedent are contained in the first sentence of the same paragraph.
It has long been settled that the mere execution of joint or mutual wills, does not by itself establish a contract prohibiting alteration or revocation without clear and convincing evidence that such, a provision w;as made (Rubenstein v. Mueller 19 N Y 2d 228, 232: Oursler v. Armstrong, 10 N Y 2d 385, 389; Edson v. Parsons, 155 N. Y. 555, 568; Matter of Zeh, 24 A D 2d 983, affd. *60918 N Y 2d 900). In this case, the promise related to the estate of the decedent which equity should enforce, but there exists no clear and convincing evidence of a promise binding upon after-acquired property of the survivor (cf. Tutunjian v. Vetzigian, 299 N. Y. 315). In Tutunjian, for example, the will expressly referred to after-acquired property. Absent such kind of evidence equity will impress a trust only “ as to property received by [the survivor] under the joint will ” (Rubenstein v. Mueller, 19 N Y 2d 228, 233; Rastetter v. Hoenninger, 214 N. Y. 66, 74, supra).
The majority’s holding seems unduly inflexible, especially when it is bottomed on such slim proof of a contractual promise.
With respect to equitable considerations, the Attorney-General, on behalf of the charitable residuary beneficiary, petitioned the Surrogate to exercise its equitable power to impress a trust upon the proceeds of the codicils. The elements which would compel a court to impress such constructive trust, e.g., fraud and unjust enrichment are not present in this case. The two codicils of the surviving wife which are at issue here do not alter specific bequests of the joint will, nor may they be construed as an attempt by the survivor to enrich herself or her relatives to the detriment of the decedent husband or his relatives. In fact, the most substantial additional bequest is one of $20,000 to a cousin of the husband. The codicils carry out the intent of the joint will and do not diminish the gift to the residuary legátee. It receives, giving effect to the codicils, a substantially larger bequest (approximately three times as much) than it would have received at the time the joint will was executed. Nor is there any indication that the survivor wife abused a confidential relationship. There must be a “ sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed ” (Matter of Fabbri, 2 N Y 2d 236, 240). Thus, the intent of the joint will is to be gathered not merely from the language of the instrument itself, “ but also from the conditions and circumstances extrinsic to it ” (Spencer v. Childs, 1 N Y 2d 103, 107). Considering the expressed intent of the makers of the joint will to leave modest but significant bequests to their only relatives and the long passage of time during which the value of those bequests depreciated with the value of money, it is highly unlikely that the decedent husband would have disposed of his property differently had he contemplated the codicil modifications made in favor of his and his wife’s relatives. It is consonant with sound construction then, considering these *610facts, conditions and circumstances, to grant the codicils legal effect.
Subsequent to the husband’s death the size of the estate increased, due .solely to the surviving wife’s prudent investments and frugal life style. Thus, on the facts recited, it is plain that the surviving wife committed no fraud, nor was she guilty of self-enrichment. On the contrary, to deny effect to the codicils of her will would unjustly enrich the charitable beneficiary at the expense of the living relatives of both the decedent husband and the surviving wife as makers of the joint will. This result the Surrogate, in the exercise of his equitable power, properly refused to carry out. To illustrate the inequity of the rule adopted by the majority, if the surviving wife had remarried after her husband’s death, had children and then inherited a large estate from her second husband, it would be plainly unjust and inequitable to distribute the after-acquired property from the second husband in accordance with the prior joint will.
The judicial policy has been one of great reluctance to restrict the ambulatory nature of a will—be it joint or mutual—absent convincing evidence of such a clear intent (see Oursler v. Armstrong, 10 N Y 2d 385, 389, supra; Edson v. Parsons, 155 N. Y. 555, 571, supra; Matter of Zeh, 24 A D 2d 983, affd. 18 N Y 2d 900, supra). A proper rule for the disposition of the after-acquired property and one in accordance with the intent of the joint will would impress a trust on the surviving wife’s property only to the extent of its value at the time the husband died (Olsen v. Olsen, 189 Misc. 1046). For these reasons I dissent and vote to affirm the judgment of the Surrogate.
Marsh, P. J., Mahoney and Del Veoohio, JJ., concur with Simons, J.; Cabdamone, J., dissents and votes to affirm the decree in an opinion.
Decree modified in accordance with opinion and as modified affirmed with costs to respondent payable out of the estate.