Dissenting. — The plaintiff sues to enforce the specific performance of an alleged contract said to have been made between her parents, which she thus states in her complaint:
“That while each of her parents was so the owner of such property, her father promised and agreed With her mother that for and upon the consideration that her mother would make and execute a will whereby she would devise and bequeath to him all the property of every kind which she might own at the time of her death and would further provide in and by said will that in the event that he should die before her mother then all of the property of every kind which her mother might own at the time of her death should be equally divided between the plaintiff and the defendant herein, her father would make and execute a will whereby he would devise and bequeath to her mother all the property of every kind which he might own or in which he might have an interest at the time of his death and that in and by said will he would further provide that if her mother should die before he did then and in that event all the property which he might own or in which he might have an interest at the time of his death should be equally divided between the plaintiff and the defendant herein. That her mother joined in said agreement so to make and execute said *150wills and promised and agreed with her father to make and execute a will as aforesaid.”
She avers in substance that on February 11, 1896, each of her parents, in pursuance of that agreement, made a will which she sets out at large in her complaint. These testamentary documents are averred to be alike except that the testator and the principal beneficiary are transposed. Quoting from the will of the mother, the following three clauses appear:
“L
“I give, devise and bequeath all of my property and estate, real and personal, of every name, nature and description, and wheresoever situate or being, to my beloved husband, George T. Myers, to have, possess and hold the same in his own right.
“II.
“I intentionally omit giving anything to my children, Georgia Frances Stevens and George Tobias Myers, Jr., knowing that my husband will care and provide for them.
“III.
“In case of the death of my said husband, George T. Myers, before my death, then and in that event, I give, devise and bequeath all of my property and estate, real and personal, of every name, nature or description, and wheresoever situate and being, to my said children, Georgia Frances Stevens and George Tobias Myers, Jr.”
The complaint also states in substance that without either of the wills being changed, the mother died on January 18, 1902, and the father took all her property under her will and afterwards made a different will bequeathing to the plaintiff only $20,000 out of his possessions said to have been of much greater value and giving the rest to the defendant, plaintiff’s brother. It is charged that under the last-mentioned will the defendant took possession of the estate of the *151father after the latter’s death, including what came from the mother, and has managed the same with great profit, the exact amount of which is unknown to plaintiff but she calls for an accounting and demands a specific performance of the alleged agreement so that half of the estate and its increment shall be decreed to her. It is affirmatively stated in the complaint :
“That the promises, agreements and contracts between the father and mother of the plaintiff, as hereinbefore alleged and set out, were not in writing, and that the plaintiff does not know, and therefore cannot allege, the exact date upon which the same were made, but according to her best knowledge and belief they were so made on, or a short time before, the 11th day of February, 1896.”
A general demurrer to the complaint was overruled. The agreement and the making of the wills in pursuance thereof, as stated by the plaintiff, are denied by the answer.
As an estoppel against the maintenance of this suit, the defendant avers the probate of the will under which he claims and its final establishment over the plaintiff’s contest thereof as decided in Stevens v. Myers, 62 Or. 372 (121 Pac. 434, 126 Pac. 29). The reply traverses the answer in material particulars. From a decree dismissing her suit the plaintiff appeals.
It is conceded as a matter of law that it is competent for living persons validly to contract with each other to make a certain testamentary disposition of the property of either or both. The authorities, however, differ somewhat as to the effect of such a contract, some of them distinguishing between devises solely to the other contracting party and those to bim *152and others. For instance, in Anderson v. Anderson (Iowa), 164 N. W. 1042, cited by the plaintiff and in the opinion of Mr. Justice Johns, the husband and wife each made a will naming the other as sole beneficiary thereof. As claimed in the present ease, the two testaments were identical in form in all respects except in date, but they were made about the same time. The testimony of the scrivener is much like that of the one who drew the alleged wills in the present case. The precedent under consideration, however, proves too much for the contention of the present plaintiff. The court there said:
“Much of the confusion and doubt which is liable to arise over cases of this kind is readily removed if we keep in mind the essential truth that the two instruments constitute a single will and that it is in all essential respects the will of the first to die, and when such death occurs, and the will is thereby made effective, and is established in probate, such joint or mutual instrument has served its full purpose, and it has no further existence as the will of the survivor. The generality of this statement is subject to this exception, that if, as sometimes happens, the mutual character of the will is limited to a fractional part of the survivor’s estate, and in the same instrument such survivor includes a bequest or devise to some third person or class of persons, then to that extent the instrument is an individual will, and to that extent may be established and carried out.”
In that instance both Anderson and his wife were dead when the litigation arose, the husband dying first. The plaintiffs as heirs at law of the husband claimed under a section of the Iowa Code providing that:
“If a devisee die before the testator his heirs shall inherit the property devised to him unless from the terms of the will a contrary intent is manifest.”
*153This is substantially like our own statute, Section 7327, L. O. L. The court, speaking through Mr. Justice Weaver, used this language:
“Does the statute which appellants invoke have any application to this case? In our judgment it does not. By this provision which preserves to the heirs of a devisee who predeceases the testator making the devise the right to succeed thereto, a lapse is prevented. That is, if the devise is one which would have vested in the deceased devisee at some time had he lived, his heirs take his place in the same right. They take through the devisee, or (perhaps in more accurate terms), they take in his stead by way of representation or statutory substitution. But their right is not of any better or higher quality than was his. If then, as we have already indicated, the wills are to be treated as mutual and reciprocal, constituting in legal effect the will of the first to die, it follows that the reciprocal devise which would have vested’ in the husband had the wife died first could never become effective or payable either to the husband or his heirs. In other words, the husband’s rights in the estate of his wife were by the will made to depend solely upon his surviving her. He did not survive her, and the will she had made in his favor, conditioned upon his outliving her, can never be made effective for any purpose at the demand of his heirs. This is the logical and necessary result of the most recent holdings on this branch of the law of wills. (Citing a large number of authorities.) While these cases are not all closely in point with the one at bar they do together, though with some variances, afford a fair guide to correct conclusions upon a question which is not frequently before the courts and the law upon which has not yet progressed beyond its formative period. But the present case brings it up in its simplest and least complicated form. The will as we construe it is wholly reciprocal. Each party thereto makes the other the sole beneficiary. It creates no remainders and no executory devises. The survivor is to take all *154that either or both has to give, benefits which are subject to no condition or contingency save that of survivorship. As the husband died first the instrument is to be treated and given effect as his will alone, and when this is done nothing is left to operate or to be given effect as the will of the survivor. ’ ’
Applying the doctrine of the Anderson case to the present contention and conceding that the husband and wife made identical wills, they constitute but one instrument which is the will of the first to die, and only that. Having served its purpose as the testament of the first decedent, and the estate not having been limited under the conditions of the instrument to any. other, the bipartite convention, even if made as alleged, served its purpose as the will of the first decedent and afterwards became inert. According to the- theory of the Anderson case, therefore, on the wills as stated in the complaint Myers took as of right all of the property of his wife on her decease because she bequeathed it entirely to him, expressly omitting any bequest to the children, and there the transaction between the husband and wife ended, leaving the survivor, as in the Anderson case, to do as he chose with his estate augmented by that of his wife.
In the opinion of Mr. Justice Johns there is a quotation from 1 Alexander’s Commentaries on Wills, to the effect that:
“ Where two parties have made mutual wills in favor of each other, whether pursuant to a valid agreement or not, if the survivor receives benefits under the will of the other who has died without having revoked the same and under the belief that the will of the survivor would not be altered, the revocation by the survivor of his will would be such a fraud as equity would prevent.”
*155In good reason this cannot be the law, for it would under all circumstances utterly destroy testamentary capacity and authority where one party had made a will in favor of another who had reciprocated. The authorities cited in support of the text do not uphold it but are decided on the basis that there was a precedent contract for making such wills. For instance, in Schumaker v. Schmidt, 44 Ala. 454 (4 Am. Rep. 135), there was a joint instrument containing testamentary language, as well as express words of contract upon the consideration of mutual promises, which was executed'by both parties and attested as a will giving to the survivor the whole property of the first to die. Afterwards one of them made a separate will otherwise disposing of his property, and died. The survivor sought to impress upon the decedent’s property a trust in accordance with the original joint agreement but his bill was dismissed. In Bolman v. Overall, 80 Ala. 451 (2 South. 624, 60 Am. Rep. 107), the court said, among other things, respecting the instrument signed by the decedent and involved in the suit:
“It is clearly a will in form, being testamentary in frame and verbiage. But it is also a contract, in essence and fact, being executed, as stated on the face of the paper, ‘in consideration of past and future treatment’ and as shown by the bill, in furtherance of a previous parol agreement that it should be executed upon an admitted and specified valuable consideration.”
Baker v. Syfritt, 147 Iowa, 49 (125 N. W. 998), was a case concerning a joint will which the court construed as a contract and which the survivor adopted. Campbell v. Dunkelberger, 172 Iowa, 385 (153 N. W. 56), was another joint will case and the court said:
*156“In order that either party he denied the right to revoke such wills, it must appear by clear and satisfactory evidence or on the face of the wills that these were executed in pursuance of a contract or compact between the parties. ’ ’
Bower v. Daniel, 198 Mo. 289 (95 S. W. 347), indeed holds that there must be a contract, but also decides that a joint will gave internal evidence of a supporting agreement. However, this case was expressly overruled in the later case of Wanger v. Marr, 257 Mo. 482 (165 S. W. 1027). Without exception, the precedents cited under the section of Alexander on Wills above noted are based upon contract, so that the case must turn in every instance upon the existence of an agreement and whether it is sufficiently proved to take the case out of the statute of frauds. The ambulatory element of wills is not to be destroyed unless there is a contract to that effect.
Passing this, however, we come to the main question to be determined, namely, whether Myers and his wife made the agreement stated in the complaint. The principal testimony about the execution of the wills is that of Whitney L. Boise. Referring to those wills which the plaintiff says were executed in pursuance of the alleged oral agreement, he stated:
“Shortly before these wills were drawn, perhaps three or four days, Mr. Myers called at my office. He used to come there very often, drop in every day or so, and he said they were going off on a trip, and that Mrs. Myers and himself had decided to make a will, each one wanted to make a will— * * that he was going to will to Mrs. Myers all his property, and in ease of her death before his, that he wanted it to go to his children equally; but at the present time he did not desire to give anything to the children; that Mrs. Myers had helped him make his money and he thought he wanted to give everything he had to her, and that *157she felt the same way. I told him if they would both come in it would not take but a short time to draw the wills, and they could execute them most any time. I think it was the next morning about half-past 11 they came in, and then they both stated to me the understanding again, what they wanted. Mr. Myers, I think, was the spokesman. I asked Mrs. Myers if she wanted the same kind of a will made, and she said she did; and then we commenced to talk over some of their trips. I knew them very well, socially. They told me about some of the trips they had taken in the east, and what they contemplated doing; and we talked for some time, and when I got ready to draw the wills, I looked at my watch and it was about half-past 12 o ’clock, and the stenographer had gone. I told them I would dictate the wills that afternoon, and prepare them, and Mr. Myers could come in and take them home and execute them. That they wanted to have two witnesses, — I explained how they were to be executed— that were not interested in the property. That was all there was to it. I drew the wills that afternoon and Mr. Myers came in and got them and took them home and had them executed and brought them back to my office, and I looked them over and saw they were properly executed and put them in envelopes and sealed them up and put them in the safe in my office. They remained there for a great many years, I think until Mrs. Myers’ death.
“Q. Now in the talk that they had, or he had, with you, I would like to have all that you can remember that they said as to any understanding, agreement, or arrangement that they had, or they would make in that will, or wanted to make, or talked over to themselves, anything of that sort. All the conversation as you recollect it.
“Al I think I have substantially stated it. He said they had talked it over, and they had come to the agreement to make these wills. He wanted to give all his property to his wife, and in case she died before he did, he wanted it to go to his children equally, and she wanted to do the same. That is all I can ¡recollect.
*158“Q. Did they talk the same thing over, in that way, both of them, when that matter came np again?
“A. They had come in for that purpose. He stated again the proposition, and I asked Mrs. Myers if she wanted to make the same kind of a will and she said she did; and we started to talk about something else; and I drew it in accordance with those directions.”
On cross-examination counsel for the defendant alluded to the testimony given by the witness in the former contest of Myers’ will on the ground of his insanity, and proposed to question him about his declarations on oath in that proceeding. During the discussion of counsel and the court about the regularity of the cross-examination the witness on his own motion interrupted more than once, and finally broke in with this statement:
“Just a minute. I want to make an explanation myself, as this question has arisen there. The issue I was called on in the contest of the Myers will was proving his sanity. This question about these other wills never occurred to me; it never occurred to me it had anything to do with it. I did not try to refresh my memory with reference to the other wills. When this contest came up I did give thought to it, because I was asked to by Judge Webster and Mr. Simon. I looked over the wills and refreshed my memory. That is the difference between testifying once when a thing was in issue, and once when it was not. I was called on to testify as to his sanity. I had not looked at the wills since, except that I probated Mrs. Myers ’ will and I didn’t try to refresh my memory. Then I was called into this case and I went and looked at the wills again.”
The foundation of the plaintiff’s claim is that the parents made identical wills in pursuance of a contract. This is denied, making it necessary for the plaintiff to prove that averment. Otherwise stated, *159she must show by competent proof that the will of her father made on February 11, 1896, was not only executed in pursuance of the agreement as alleged but was indeed identical with that of her mother. The following Sections of our Code affect this question:
Section 712 — “There shall be no evidence of the contents" of a writing, other than the writing itself, except in the following- cases:—
“(1) When the original is in the possession of the party against whom the evidence is offered, and he withholds it under the circumstances mentioned in Section 782.”
(This latter section requires the original writing to be produced and proved except as provided in Section 712, and that if it be in the custody of the adverse party and he fails to produce it on reasonable notice, the contents thereof may be proved as in case of its loss.) The further provision of Section 712, so far as applicable to this case, is:
“(2) When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default.”
Section 802 refers particularly to wills, and reads thus:
“A last will and testament, except when made by a soldier, in actual military service, or by a mariner at sea, is invalid, unless it be in writing, and executed with such formalities as are required by law. Evidence, therefore, of such will shall not be received, other than the written instrument itself, or secondary evidence of its contents, in the cases prescribed by law.”
We have the statement of the witness that the alleged wills were in his custody for a great many *160years and, further, that, “Then I was called into this case and I went and looked at the wills again.” If Myers’ will was made and was the same, as stated, as that of his wife, the indispensable proof thereof, to wit, the will itself, was plainly within the reach of a subpoena duces tecum and should have been produced. Notwithstanding all this, however, the witness over objection volubly explained the contents of the will orally. 'Why should he be permitted when “called into the case”' to go and examine the wills and then come into court and give his oral version of one of them without its being produced? Under the plain provisions of our Code, enforced by many decisions of our own, there was no competent proof of the allegation that Myers made a will identical with that of his wife, or made one at all. For aught that appears in the evidence, even if he made a will at that time, he may have expressly reserved to himself the right to dictate the disposition of his own property and that which he should receive from his wife, without any restriction. It is mentioned in the testimony of some of the witnesses for the plaintiff that the parents often took pleasure trips away from home and that on such occasions the father habitually made the statement that all their affairs were settled and that in case anything happened to them the property would go to the two children; but no witness imputes to him any utterance indicating that the settlement was in fulfillment of any binding contract between him and his wife, or that the adjustment was irrevocable. All this is consistent with the idea that each of the parents retained testamentary control over his or her property then in hand or to be derived from the will of the other. There is nothing in such language in the least indicating any contract of any kind. Indeed, it is passing *161strange that in all the years elapsing between the date of the wills of February 11, 1896, and the making of the last will of Mr. Myers in 1902, no word escaped him, so far as the record discloses, indicating a contract between himself and his wife on the subject. Much stress was laid in argument on what Myers said about his wife’s being the best partner he ever had and of his counseling with her in important matters. The cross-examination of witnesses narrating such statements reveals that she never took active part in any of his business ventures, but confined herself to the role of a good, helpful wife, an ideal of the character. They appear to have kept their property interests separate and there is quite as much reason to say that he helped her to accumulate her holdings as to exploit the opposite theory.
The only post facto suggestion of any arrahgement between the parents whatever, coming from the lips of either of the participants, is narrated in the testimony of Mrs. Yah Duers. She was a witness for the defendant and a niece of Mrs. Myers who lived about ten years in the family of the father.and mother and testified that during the life of the latter at some time subsequent to 1898 she had a conversation with her aunt which she thus relates:
“It was a general conversation I had with my aunt on one occasion in regard to an estate left by a friend in a rather tangled condition; and I remember distinctly asking my aunt if she did not think property should be divided before the death of the parents, and she said, ‘No.’ I said, ‘Why don’t you do it?’ and she said, ‘No, your uncle accumulated it himself, and he has a right to say what shall be done with it; or if he is not here, I have a right to say what shall be done with it.’ ”
*162Pertinent to this testimony are the following Code provisions:
“Where, however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding- the title, in relation to the property, is evidence against the former”: Section 706, L. O. L.
“The declaration, act or omission of a deceased person, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest”: Section 710, L. O. L.
The statement of Mrs. Myers to her niece is binding upon the plaintiff, who claims in the right of her mother as a contracting party. This is a most natural declaration for Mrs. Myers to make to her niece who had lived in her family for ten years prior to her marriage and was still on intimate terms with her aunt. The voice of the father is hushed in the tomb and cannot speak to us in the defense of his property or of his character against the present attack of his daughter. Such an effort as hers ought not to succeed except upon the most cogent testimony. No member of the family or other person testifies that either of the testators ever stated that there was a contract between them respecting the disposition of their property, or that either of them intended to restrict the other in subsequent disposition of property, unless we except the testimony of Mr. Boise. Again, the course of the plaintiff in contesting her father’s subsequent will on the ground of his alleged insanity is inconsistent with the idea of the contract to make a will, and in good morals at least ought to bar her from changing front as she does. If there was a contract, naturally she would have sought its enforcement in the first instance instead of contesting his will. She is not in the equi*163table position of one who has performed valuable services for a decedent with the expectation of being suitably rewarded by a devise or bequest of property. She claims only as a descendant of the testator. She is merely not satisfied with $20,000, and wants more.
The power of disposing’ of lands or goods owned by an individual is an essential element of property. As against this prerogative of testamentary disposition, children have no vested rights in the estates of their parents. Much of the litigation in contesting wills has grown out of the fallacy that the statute of descents confers upon children benefits of which they cannot be deprived by their parents whether they die testate or intestate. The true legal principle, however, remains that the prerogative of saying who shall enjoy his earnings after his death abides in the parent. It is a wise and just provision of the law for the protection and security of old age. It is often potent to compel the- performance of filial obligations and to inspire loyalty in otherwise undutiful children. Except upon cogent reasons plainly established, we ought not to ignore the right of the owner to dispose of his property according to his own ideas or to unmake his will because he did not do as we personally might have done in the same situation.
Although our Code requires a will to be executed in the presence of two attesting witnesses who shall sign the same at the request of the testator in his presence, and in the presence of each other, we are called upon by this suit in effect to ignore the statute and substitute for the will established under a contest upon the sanity of the testator, the one made by him February 11, 1896, all upon the statements of the one attorney who drew the wills and who speaks from • memory almost eighteen years after the occurrence which he *164relates. In this connection the case of Moore v. Campbell, 102 Ala. 445 (14 South. 780), may he read with profit, to the effect that under a statute similar to our Section 7398, L. O. L., this cannot he done because it is an evasion of the law of wills and an effort to impress a parol trust upon lands in violation of the Code section cited.
As to the making of the contract averred, we cannot rely upon the wills themselves, because they make no reference whatever to each other. As said in Frazier v. Patterson, 243 Ill. 80 (90 N. E. 216, 17 Ann. Cas. 1003, 27 L. R. A. (N. S.) 508):
“If two persons make wills each devising the property to the other, there is no necessary inference that the wills were the result of any reciprocal or mutual agreement or understanding.”
In that case, cited in the opinion of Mr Justice Johns, the court was considering a joint will containing terms of contract, and limited to such an instance the doctrine that the agreement might be established by the terms of the instrument itself. In Prince v. Prince, 64 Wash. 552 (117 Pac. 255), while holding under the ample extraneous proofs in the case that there was a contract relating to the testamentary disposition of the property of the parents, the court, speaking through Mr. Justice Chadwick, quotes with approval the language of Section 6 of Eemson on Preparation and Contest of Wills, as follows:
“But to invoke the intervention of equity it is not sufficient that there are wills simultaneously made and similar in their cross provisions, but the existence of a clear and definite contract must be shown either by proof of an express agreement or by unequivocal circumstances.”
*165See, also, McClanahan v. McClanahan, 77 Wash. 138 (137 Pac. 479, Ann. Cas. 1915A, 461).
Again, the mother said in her testamentary document :
“I intentionally omit giving anything to my children, Georgia Frances Stevens and George Tobias Myers, Jr., knowing that my husband will care and provide for them.”
It would seem that if these wills were made in pursuance of a contract the one would have referred to the other or to the contract, and the. testator would have said something like this:
“ * * knowing that my husband has provided for them by will of even date herewith” or “that he has agreed with me to provide for them.”
It is worthy of note also thát nothing is said by either testator about the kind of care or amount of provision that was to be made for the children by the other. All is left to future disposition. The central idea of the situation as expressed by the language of Mr. Boise is found in his statement, “ # # that Mrs. Myers had.helped him make his money and he thought he wanted to give everything he had to her, and that she felt the same way.” Like that of any other witness, the- analysis of his testimony should be conducted in the light which all the circumstances of the case throw upon it. His acquaintance with the plaintiff runs back to a date before her marriage, and ever since he has been her friend. It is natural that an early friendship for one of the opposite sex would, insensibly at least, influence one in later years. Mr. Boise testifies that he endeavored to disabuse the mind of Mr. Myers of his prejudice against the plaintiff’s husband, and it is fair to presume that the witness re*166gretted the action of the father in bequeathing only $20,000 to the plaintiff. The record justifies the inference that his mind was predisposed to finding a way by which the plaintiff could share more substantially in her father’s accumulation of property. Although he was one of the principal witnesses in the contest instituted by the plaintiff to overthrow her father’s will because of alleged insane delusions said to control him, and detailed the transaction of making the two wills by the parents with all its preliminaries, we find in his narrative there not a word indicating that there was any contract to make irrevocable wills. He tells of the elder Myers’ often talking to him by the hour about his wife after her death and of drawing his later will and its codicil, but the existence of a covenant between the father and mother never occurred to him until, as he puts it, he “was called into this case.” It is at least unlikely that in all those hours of communing with his friend and client that agreement was not discussed if it ever was made. Assuredly something would have been said about it when his duty as a lawyer called upon him to restrain that client about to act in violation of his compact irrevocably sealed by the death of the other party as he would do in making the later will.
Coming to what the witness says in the present litigation, we find him declaring first that Myers told him the pair had “decided” to make wills. Prominent in that connection is the announced purpose of the testator to give all his property to his wife and his statement that he did not want “to provide anything for the children now.” Finally, however, after eighteen years of silence about this chimerical contract, with every opportunity to describe it in the closely contested will case, when pressed by plaintiff’s counsel *167at the hearing of this suit the witness, like an exhausted runner, stumbles over the line at the finish with the statement that Myers said, “They had come to an agreement.” No language of stipulation is imputed to Mrs. Myers. According to the single witness, all she said was that she wanted the same kind of a will, clearly indicating only identical action of the husband and wife with no thought of creating an obligation. The idea of restricting the testamentary power of the survivor by the execution of identical wills never occurred to anyone until after the death of the parents. The phrase, “they had come to an agreement,” being an oral admission of a party, must be viewed with caution: Section 868, subd. 4, L. O. L. Even if an accurate rehearsal of what Myers said eighteen years before, it savors too much of afterthought, under all the circumstances, to measure up to that clear, precise and convincing proof which all the • authorities require to make out a case for specific performance of a contract changing the title to real property otherwise within the statute of frauds. “Agreement” does not necessarily mean contract. Jurors “agree” upon a verdict. The parents “agreed” to make a trip to Mexico, as stated in the testimony. Yet no obligation arises from either situation. In short, the testimony discloses no more than that they were animated by a common purpose and each followed the example of the other.
In speaking of part performance, Pomeroy in his work on Contracts, Section 108, states the rule thus:
“With this explanation of their probative effect, the acts of part performance must be done in pursuance of the agreement; must unequivocally refer to and result from the agreement; or, in other words, clearly showing that there exists some contract between the parties they must be exclusively referable *168thereto; it must appear that they would not have been done except on account thereof and they must be consistent with the contract alleged. When parol evidence has been admitted to prove the agreement in suit the acts of part performance must be clearly and exclusively referable to and in pursuance of its terms.”
In a note to the preceding section is quoted an utterance of Shadwell, V. C., in Dale v. Hamilton, 5 Harg. 369:
“It is generally of the essence of such an act of part performance that the court shall by reason of the act itself without knowing whether there was an agreement or not find the parties unequivocally in a position different from that which according to their legal rights they would be in if there were no contract. * * But- an act which though in truth done in pursuance of a contract admits of explanation without supposing a contract, is not in general admitted to constitute a part performance to take the case out of the statute of frauds; as for example, the payment of a sum of money alleged to be purchase money.”
In Wagonblast v. Whitney, 12 Or. 83 (6 Pac. 399), a suit to compel the specific performance of a verbal contract to convey lands, Mr. Justice Lord discussed the authorities at length and said, respecting the meásure of proof:
“Nor will the specific performance of a parol contract be granted, unless it be proved in the clearest manner and substantially the same contract as set out in the bill: Brown v. Brown, 47 Mich. 384. These are salutary but stringent rules, in the observance of which the interests of society and the public welfare are involved. A party is presumed to know the requirements of the law, and that a contract for the sale of land must be in writing. When he asks a court of equity to interfere, and save him from the consequences of his disregard of the law, the burden of *169proof is rightfully thrown upon him to show a case outside of the operation of the statute. The court will not interfere to protect his rights, and lend its aid to the enforcement of a contract depending upon parol evidence and part performance, unless he proves the existence of the contract, its terms, and the acts of part performance by clear, satisfactory and indubitable proof.” (Citing authorities.)
In Kinney v. Murray, 170 Mo. 700 (71 S. W. 202), the court said:
“But the proof of such a contract must be so cogent, clear, and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character; and, where the consideration consists of acts to be performed, there must be like proof that the acts performed refer to and result from that contract, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance. There must be no equivocation or uncertainty in the case.”
In Berg v. Moreau, 199 Mo. 416 (97 S. W. 901, 9 L. R. A. (N. S.) 157), the court lays down the standard that:
It must appear “not only that some contract was performed by the beneficiary, but that the identical contract sued on was performed, and that the acts relied on to show performance should point unvaryingly as the needle to the pole to the contract in suit and to no other”; and that the principles are “well settled as requiring a high and stringent character of proof, to wit, proof so impelling, so definite and clear, that there can be no reasonable doubt of the existence of a contract, of its terms, and of its performance.”
Respecting the rule that the evidence must clearly and exclusively refer to the contract pleaded and to no other, without equivocation, an analogy may be drawn from the rule laid down by Mr. Justice McBride in *170Spain v. Oregon-Wash. R. & N. Co., 78 Or. 355 (153 Pac. 470, Ann. Cas. 1917E, 1104), where he says:
“When the evidence leaves the case in snch a situation that the jury will be required to speculate and guess which of several possible causes occasioned the injury, that part of the case should, be withdrawn from its consideration.”
The rule is thus laid down in Johnson v. Devine, 166 Ill. App. 341:
_ “When such a contract is made the basis of an action, the evidence in support of it should be looked upon with great jealousy, and weighed in the most scrupulous manner, and the character, conduct and testimony of the witnesses should be such as to inspire confidence that they are telling the truth. Such a contract can only be enforced when it is clearly proved by direct and positive testimony, and when the terms of the contract are definite and certain. The most stringent doctrines of the court should be applied in such cases.”
In Wilson v. Gordon, 73 S. C. 155 (53 S. E. 79), two maiden sisters, after a conference on joint request in writing had two wills prepared by the same attorney giving all the property of each to the other without limitation, with the provision that if the devisee should die in the lifetime of the testator the property should go to a niece and her children; and it was held that they were not mutual wills and that the surviving sister after having accepted the benefits of the deceased sister’s will might destroy her own will. The court says in that opinion:
“But where a contract to make or not to revoke a will is set up there are strong reasons for requiring an agreement definite and certain established by evidence clear and convincing. The evidence comes from the living against the dead who cannot speak in *171his ovm behalf in disproof of a charge of a violation of a solemn obligation. * * The discussion by two persons bound to each other by the closest ties of affection as to the disposition of their property resulting in separate wills by which the property of each was left to the other affords no ground for the inference that they undertook or exacted a legal obligation.”
Speaking further, the court said:
“But there are some facts which go towards disproving any contract. Not only was there no intimation from either of the sisters that they so understood it in the lifetime of Miss Mary, but the terms of the wills are very significant. They were prepared with great care and after much consideration. The fact that there was an absolute devise from each sister to the other without limitation was strong evidence that there was no intention to limit the power of alienation. When an intention is reduced to writing, either in the form of a will or a contract, there is always the strong implication of fact that the whole intention has been expressed and an implication still stronger that there is no agreement or intention contrary to that expressed.”
Hale v. Hale, 90 Va. 728 (19 S. E. 739), was a case where two sisters made identical wills. One of them married, before which, however, she consulted an attorney, who advised her that her marriage would have no effect on her will. She died under that belief and never republished her testamentary document. After stating the principles relating to part performance, the court said:
“Now the alleged acts of part performance in the present case taken singly or collectively do not bring the case within these principles. The making and preserving the wills under the circumstances stated in the bill, while they are acts consistent with, are yet *172not demonstrative of, the existence of any contract between the parties, or, in other words, they do not unequivocally show that there was a contract. Non constat the wills were not made from motives of love and affection and independently of any contract or agreement, and this being so, parol evidence to establish the alleged contract would not be permissible. ”
Wanger v. Marr, 257 Mo. 482 (165 S. W. 1027), was a case in which the husband and wife each executed a will. By these each was given a life estate in the property of the other and the remainder was devised to plaintiffs and defendant. The wife died and the husband took possession of her land. Afterwards he executed another will inconsistent with the former, and died. The court held that the evidence was insufficient either to prove a contract or to require specific performance thereof. In Sappingfield v. King, 49 Or. 102 (89 Pac. 142, 90 Pac. 150, 8 L. R. A. (N. S.) 1066), it'appears that a husband and wife, after consideration of the same for some weeks, went to the office of an attorney where the wife executed a deed conveying to her husband all her land, to take effect after her death, and he made a will bequeathing his property to her while she lived, with remainder to other parties. He died first and in a suit by the widow to quiet the title to her lands as against a claim of the residuary legatees of her husband it was contended that the testimony showed a binding contract between the husband and wife to make mutual wills, which became irrevocable upon the death of one of the contracting parties. It is enough to say of the record in that case that it went much farther than anything revealed here to establish such a contract. Mr. Justice Eakin, however, dismissed the contention, holding that the testi*173mony was insufficient to fulfill the standard requiring clear and convincing evidence of a contract specific performance of which is desired.
The principle to he deduced from all the authorities on part performance is that it must point unequivocally and undisputably to the contract alleged and to nothing else. If it can be referred to any other contract or arrangement it is insufficient. Applying the rule to this case, in the light of the only written memorial of the transaction between husband and wife, namely, the two wills of February 11, 1896, we will suppose that instead of the one alleged, there was in fact a contract between the husband and wife that each should leave the entire estate to the other, with discretion to provide for the children as the survivor should think best. The two wills as drawn would be the only practical expression of such intention. More than two years after they were executed we find Mrs. Myers saying to her niece, Mrs. Yan Duers:
“No; your uncle accumulated it himself and he has a right to say what' shall be done with it, or if he is not here I have a right to say what shall be done with it.”
She doubtless had in mind at the time the two wills in question. If the complaint is true she knew that they were identical in their terms. Her statement to her niece clearly shows her attitude towards that arrangement and is utterly inconsistent with a covenant to devise the property of the survivor absolutely and at all events to the children in equal shares. If, as Mrs. Myers said, her husband had the right to say what should be done with the estate he certainly was not fettered by any contract to dispose of it only in a certain manner and to two particular persons. *174The parents evidently intended to leave the whole property to the one remaining after the first decedent, to dispose of without any restraint or condition whatevér. The acts of the parties and the declaration of Mrs. Myers coincide and harmonize with that estimate of their transaction. The only memorial of the matter which either spouse required of the other was a will to which the law attaches the quality of revocability at the pleasure of the testator. They were not making a fixed and definite contract. They were publishing ambulatory wills each subject to renunciation at any time. Eeferable as it is to an agreement leaving the whole disposition of the estate to the discretion of the survivor, the testimony about a mere casual expression of the testator is not sufficient to support specific performance óf an irrevocable contract to make a will.
Neither of the parties ever contemplated giving up control of their several properties either then or after-wards. That the survivor was left untrammeled in that respect is made as clear as possible by the language of Mrs. Myers in her conversation with her niece, Mrs. Van Duers. This statement of the plaintiff’s mother, one of the couple who of all others knew what the transaction really was, properly characterizes the subject of the present contention. It is consistent with the only written memorial they left, the wills themselves. It is not at variance with the testimony of Mr. Boise.
It must be presumed that the private transaction of Myers in'making the last will and its codicil was fair and regular, favored as he was by the ministrations of able counsel. In this long-drawn-out scramble for filthy lucre there were those who had the opinion that he was mentally erratic, but although he had a long *175and successful business career, bringing him into contact with many people, none rose to impeach his loyalty to his contracts until his daughter attacked it by this suit. We cannot presume that he broke faith with his departed wife. The presumption is the other way, and the truth is manifestly as she herself stated it to Mrs. Van Duers.
Let us concede for the moment that the parents had some kind of an agreement, understanding or arrangement. Let us even, as we might under the testimony, suppose that the compact was that the survivor should take all the property of the other with full discretion about leaving any of it to the children and without restriction upon testamentary disposition of it by the one living longer. In such a case how differently would they have framed their wills from the way the plaintiff alleges they did? In all the divagations of discussion no one has answered this question. If we are to be bound by the rule laid down by substantially all the authorities to the effect that the evidence to support a decree for specific performance must clearly prove the contract alleged, the question cannot be answered consistently with a reversal of the decree of the Circuit Court.
Under such circumstances we would do violence to the almost unbroken current of authority on part performance and assume to make for the survivor a will according to our own notions, if we reversed this case. A contrary view of the record would make it impossible for one spouse to bequeath anything to the other without raising the presumption of a contract requiring the same, and would unreasonably fetter the right to dispose of estates by will. The following cases are instructive on the subject under consideration: Christy v. Barnhart, 14 Pa. 260 (52 Am. Dec. *176543, and note); Swash v. Sharpstein, 14 Wash. 426 (32 L. R. A. 796, 44 Pac. 862); Semmes v. Worthington, 38 Md. 298; Wallace v. Rappleye, 103 Ill. 231; Grindling v. Rehyl, 149 Mich. 641 (113 N. W. 290, 15 L. R. A. (N. S.) 466); Horton v. Stegmyer, 175 Fed. 756 (20 Ann. Cas. 1134, 99 C. C. A. 332); Russell v. Jones, 135 Fed. 929 (68 C. C. A. 487); Taylor v. Higgs, 202 N. Y. 65 (95 N. E. 30); McClanahan v. McClanahan, 77 Wash. 138 (137 Pac. 479, Ann. Cas. 1915A, 461); Buchanan v. Anderson, 70 S. C. 454 (50 S. E. 12); Gould v. Mansfield, 103 Mass. 408 (4 Am. Rep. 573); Cawley’s Appeal, 136 Pa. 628 (20 Atl. 567, 10 L. R. A. 93); Cross v. Cleary, 29 Ont. 542; Tousey v. Hastings, 127 App. Div. 94 (111 N. Y. Supp. 344); Id., 194 N. Y. 79 (86 N. E. 831); Messier v. Rainville, 30 R. I. 161 (73 Atl. 378); Kinney v. Murray, 170 Mo. 674 (71 S. W. 197); Edson v. Parsons, 155 N. Y. 555 (50 N. E. 265); Dicks v. Cassels, 100 S. C. 341 (84 S. E. 878); Dyess v. Rowe (Tex. Civ. App.), 177 S. W. 1001; Brewer v. Hieronymous (Ky.), 41 S. W. 310; Wallace v. Wallace, 158 App. Div. 273 (137 N. Y. Supp. 43, 143 N. Y. Supp. 1148); Davidson v. Davidson, 72 W. Va. 747 (79 S. E. 998).
As taught by subdivision 1 of Section 868, L. O. L., summing up let us judge of the effect of the evidence not arbitrarily but with legal discretion and in subordination to the rules of evidence, and so doing ascertain where the preponderance lies. On one side we find the statement of a single witness undertaking to recall after a lapse of eighteen years the language of Myers that “they had come to an agreement” to make identical wills. As to whether they were to be so alike or were in fact the same, we are asked to accept the oral interpretation of the witness who says he had custody of them many years and went and *177looked at them after he “was called into this case.” No excuse whatever is offered for not producing the will itself. This is all that fairly can be set down on the plaintiff’s side of the account. On the other side is the version given to the arrangement by Mrs. Myers as related in the testimony of her niece. This is supported by the presumptions that Myers was innocent of the wrong of violating a contract made with his deceased wife; that the transaction of making his last will was fair and regular and that the higher evidence of the will made when his wife made hers, if he made one, viz., the will itself, would be adverse from the production of the inferior or oral evidence of its contents : Section 799, subds. 1, 19 and 6, L. O. L. Negatively the defendant’s case is aided by the fact that although Myers lived from February 11, 1896, to July 12,1907, yet no witness, not even his attorney to whom he talked so freely, imputes to him during all that time any word indicating a contract. There is also the improbability that if he and his wife were negotiating an agreement he would consent to relinquish all future testamentary control of his $200,000 worth of property in consideration of her doing the like with her $40,000 worth.
On the record Mrs. Yan Duers is quite as worthy of belief as Mr. Boise. Laying aside for the moment all the statutory presumptions noted, the best that can be said for the plaintiff about the weight of the testimony is that the statements of these two witnesses balance each other. Yet they are the only ones who pretend to state any thing about an agreement.
But it is incumbent upon the plaintiff to prove her case by a preponderance of the evidence, otherwise she must fail. On the other hand, the presumptions *178turn the scale in favor of the defendant and he is entitled to prevail.
The remaining insuperable objection to the plaintiff’s case is that it is an attempt to create a trust concerning real property upon the doubtful oral testimony of a single witness without the support of a single act of either party but what is easily and naturally referable to an unrestricted noncontractual devise. In this respect the case is plainly governed by Section 804, L. O. L.:
“No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law.”
And Section 7398, L. O. L.:
“Every grant or assignment of any existing trust in lands, goods, or things in action, unless the same shall be in writing, subscribed by the party making the same, or by his agent lawfully authorized, shall be void.”
To sustain this suit under such circumstances is to make the title to real property subject to the slightest vagary of memory. It is to invite plunder of estates, on the most flimsy pretexts. Besides all this, it is well settled that equity will not, as a matter of right, decree specific performance of any contract. It rests solely in the sound discretion of the court and we cannot say upon this record that the circuit judge who heard the testimony, saw the witnesses and considered all the circumstances and relations of the parties, abused *179Ms discretion in denying the snit of the plaintiff. Neither is the case made by the plaintiff sufficient to impute fraud to the dead father or to authorize us to record him as a faithless covenant breaker at the suit of his daughter. The decree of the Circuit Court should be affirmed.