(dissenting).—On the former appeal I dissented from the determination that this action could be sustained, and for the reasons stated in the dissenting opinion on that appeal I dissent from the affirmance of the judgment here appealed from (151 App. Div. 853).
But assuming that the mutual will executed by the defendant’s testator and his wife, and which was admitted to probate on the death of his wife, was evidence of a contract so that the defendant was incapable of revoking that will or making any other testamentary disposition of his property, I cannot see that such a contract in any way limited his right to use his own property not acquired from his wife. The so-called contract is discovered in the will itself; and what did the parties there agree to F This instrument was entirely testamentary. The income of the property of the one first dying was devised to the survivor during his or her natural life for his or her own use and benefit and after the death of the survivor, “ all our property both real and personal shall be divided in the manner following.” If this was a contract, it certainly could not prevent the survivor from using either the income from the wife’s prop*233erty which was given to him for his own use and benefit, or his own property, over which the wife had no control, in any way that he desired during his own life. There was no trust imposed upon the husband’s property by this mutual will, and no limitation upon his power to use or dispose of his own property during his life. He had made his will, which could be effectual only on its admission to probate after his death. Assuming that, as the court has held, he thereby undertook not to revoke this mutual will or to make any other testamentary disposition of his property, he certainly could do what he pleased with his own property during his life. As was said in the case of Edson v. Parsons (155 N. Y. 555): The effect of such contract is that “ the one surviving would make the brother $ * the residuary legatee of what she should be possessed of at her death.”
The will, so far as it could affect the husband’s property, could take effect only at his death. The contract as found, by the majority of the court, was that the husband undertook that all the property of “ either of us ” should at the death of the survivor be divided as provided in the mutual will. From the nature of this instrument, this could only apply to the property as it existed at the date of the death of the survivor. What the husband got by this will was a life estate in his wife’s property. On his death that property passed to'the residuary legatees or devisees. But as to his own property over which his wife had no control, that remained his, subject to be disposed of as he wished during his life; but what he possessed at his death was disposed of as therein provided.
In Mahaney v. Carr (175 N. Y. 454) the Court of Appeals decided this question; and what was there said applies to this case.
It is established that the testator received from his wife’s estate $7,887.58. He left all the real property in which his wife was interested undisposed of, and the personal estate of *234upwards of $10,000; so that the estate of his wife was intact. He had paid for a piece of real property which had been conveyed to his daughter during his life, and she now holds that property in her own right. Yet this judgment takes that property from her, and holds it to be part of the testator’s estate. This can only be justified by holding that by the execution of this mutual will, the testator imposed a trust on all his property in favor of the legatees of the mutual will, so that any disposition of his own property during his life was a breach of trust. This I consider without justification.
I, therefore, dissent from the affirmance of this judgment.
Laughlin, J., concurred on second ground.
Judgment modified as direct in opinion, and as so modified affirmed, without costs. Orders to be settled on notice.