concur in part and dissent in part, and vote to reverse the decree insofar as appealed from, and to deny the application to impose a constructive trust, with the following memorandum: We agree with our colleagues in the majority that the Surrogate correctly found that the proponent did not offer sufficient proof to overcome the presumption that the will had been revoked. However, we disagree with our colleagues’ finding that the contract is enforceable. Although a joint or mutual will which expressly recites within its provisions, or by a separate instrument, that it cannot be altered or revoked, is contractually binding upon the survivor (see, Margulis v Teichman, 125 Misc 2d 729, 732; see also, 9D Rohan, NY Civ Prac ¶ 13-2.1 [8]), the enforceability of such a contract is dependent upon the existence of a valid and enforceable will. Here, however, the Surrogate found that the presumption that the will had been revoked was not rebutted. To allow the will to be enforced contractually is not only inconsistent, but allows the proponent of the will to do indirectly what cannot be done directly. Therefore, we vote against imposing a constructive trust on any portions of the decedent’s estate.