(dissenting from the main opinion). I. Something should be said upon the admission of secondary evi*303dence to prove the contents of the alleged lost written contract. The majority opinion has the statement that:
“The original of this contract was not produced on the trial. Its absence was accounted for, and secondary evidence of its contents rightly permitted.”
Again:
“The loss of the contract was fully accounted for. Search was made-in every place.”
This surely treats the right to introduce secondary evidence as being a question in the case. So treating it, I point out, among other reasons for holding that no sufficient foundation was laid, the following allegation of the petition: Plaintiff “has not access to the alleged contract, because he has no copy of it, and does not know of any copy within the jurisdiction of this court. He does not know whether the alleged contract has been destroyed or not, and if not destroyed,, he does not know in whose hands it now is; but he believes it is in the possession of Matthew White, one of the defendants, and who resided in the state of Texas.” I argue that, since White was a party to the suit, filed answer, and testified on the trial, and since plaintiff pleaded that he believed the original of the alleged lost contract to be in the possession of White, it was error to receive secondary evidence of the contents of that paper, until it was determined, by the examination ’of White or some other method available, that the belief of the plaintiff that White had the paper was unfounded. These statements on my part carry the inference that White had not been examined upon' the point; and when I made them, I mistakenly believed that this was so. The majority opinion still retains its ruling that secondary evidence was rightly received, and so its inferential holding that that question is in the case. But it has added, in effect, that the testimony of White shows that he did not have the paper. It is further stated, in effect, that the objection of insufficient foundation was abandoned on the trial. I am unable to agree to either position. It is true, as said, that White was examined on the point, but the examination was this:
“Q. You have heard Mr. Walker’s testimony with reference to the alleged contract of partnership, — did you ever have a contract of that kind or anything like it in your possession? *304A. No, sir, I never did, — never knew of it until this suit. Q. In all your conversations with Mrs. Stewart, did she ever mention a contract 'of that kind ? What would you say as to whether or not she would have mentioned such a contract, if such a contract ever had existed? A. Well, I would have thought she would. Of course, she might not. Q. You say that you never had in your possession a contract like Mr. Walker spoke of in his testimony with reference to the alleged partnership ? A. No, sir, I never did.”
This, true enough, settles that White never had a paper containing what Mr. Walker’s testimony says it did contain. But it is not a statement that he did not have in his possession a paper dealing with the partnership, but which did not contain the particular stipulation upon which the plaintiff relies, and to which Mr. Walker testifies. I am of opinion, therefore, that, notwithstanding this testimony, secondary evidence should not have been permitted. As to abandonment of the objection, one objection to testimony by Walker, made, was:
“We make the further objection as to the contents of that paper, because there is no evidence sufficient of its loss or destruction, or that the original cannot be produced.”
Later, plaintiff offered in evidence a part of the original petition included in pencil parentheses — the part which sets up the survivorship feature of the contract. Objection was made to this, which does not include want of sufficient foundation, and, later, counsel for the defendant stated:
“We will withdraw any objections made to the inquiries on account of it being a copy of the original.”
It will be noticed that nowhere was a withdrawal of the objection that was made when Mr. Walker was being examined, to wit, the objection “as to the contents of that paper, because there is no evidence sufficient of its- loss or destruction, or that the original cannot be produced. ’ ’ The withdrawal relates solely to the needless offer of a part of plaintiff’s petition. Same was in the record without offer in evidence, and offering it in evidence would add nothing to the force of the pleading. If there was a concession that the alleged copy set out in the petition contained what the original did, there would be no occasion for most of the majority opinion. Had it been conceded that the *305petition was a true copy of the original contract, this court need have spent no time in considering whether the testimony of Mr. Walker proves the contents of the original: there would have been no occasion to say “its contents are as fully proven and as clearly made known as though the written instrument itself were before the court.” The ease would have come to an end, in the trial court and here, on the one proposition that defendant had conceded that the copy pleaded in the petition was as good as the original.
In the same opinion which treats the question of foundation in the ease comes the final amendment that the brief points for the appellant do not present this question. I find, upon examination thus suggested, that this is so. For that reason, I have no more to say on the question of secondary evidence, except that the majority should dispose of the reception of that testimony upon the one ground that the brief points do not raise the question.
II. In the main, the majority states clearly enough that plaintiff may not recover in this suit unless he has proved the contract he has pleaded; also, that the contents of that contract “are proved by the testimony of Mr. Walker,” and so only. It should be said, in passing, that this clarity is not maintained throughout; and there are statements in the opinion from which it can be gathered that plaintiff can prevail though he has not proved the very contract alleged,' and that things other than the testimony of Walker have made that proof. Three illustrations of this confusion of thought are typical and illustrative. It is unnecessary to advert to more, and any attempt to keep this dissent at reasonable length forbids so doing. The three illustrations are these: A large part of the opinion is devoted to a demonstration that such a contract as is asserted is valid and enforeible. I agree, and shall later use its validity as an argument. But I cannot understand how the fact that a given contract would be valid if made dispenses with proof of its existence, and contends against a denial of its existence. Time and again the thought is expressed that the making of mutual wills by the parties will permit plaintiff to recover, even if he has not proved the contract he has pleaded. Again, much stress *306is laid upon the'alleged fact that money belonging to both husband and wife bought the property in controversy, and that, such property was put in the name of the wife. Neither the making of the wills nor so buying and placing the title of the property in the least dispenses with proving the contract-pleaded. If the contract is not what is pleaded,' the wills are of no avail, because they are revocable, and revoked by a later will made by the wife. It is universally held that mutual wills, whether joint or several, are revocable by either testator during the lifetime of the other, so far as his disposition of property is concerned, without notice to or consent of the other, unless the making of the will is the result of a valid contract, by which each has agreed to devise his property to the other. 1 Underhill on Wills 19, Section 13; Robertson v. Robertson (Notes IV and VI), 136 Am. St. 596, 604; 30 Am. & Eng. Encyc. Law (2d Ed.) 621; Edson v. Parsons, 155 N. Y.. 555 (50 N. E. 265); McClanahan v. McClanahan, 77 Wash. 138 (Am. Ann. Cas. 1915 A 461, 463). The plaintiff himself recognizes this situation, because he pleads that the said reciprocal wills “were executed in confirmation and consideration, as well as supplemental to the written contract set out in the original petition.” So the pleader concedes that the wills are not material until the alleged contract has been established. The will is available only if it was so executed. A will cannot be a confirmation of, supplemental to, or supported by. the consideration of, a contract, if no contract existed. Without the contract, the plaintiff gets no “rights,” except such as belong to a claimant under a revoked will. If the contract is proved, he gets all the property, though there be no will. Without the contract, the will gives him nothing. It follows that the existence of the will cannot dispense with proving the contract pleaded.
If it be necessary to establish the contract, neither its existence nor the fact that the will is made pursuant to and in consideration of the contract are established by proving the existence of the will. See Robertson v. Robertson (Note IV), 136 Am. St. 596, citing Edson v. Parsons, 155 N. Y. 555.
As to the buying the property with-joint money and placing the title in the wife: assume this fact and others of like character to be competently established by the proof, and yet they *307are irrelevant on the issues. The fact that property was paid for with joint money, and the title placed in the wife, can effect no more than to give the husband a right to enforce a trust to the extent of his contribution. Proving it will not dispense with his proving the contract pleaded, because so buying and placing gives neither party all the property. The majority declares, over and again, and in every variety of expression, that all that was done, was done “under the terms of said contract.” Plaintiff demands all the property because he has performed what the alleged contract requires. In attaching importance to the alleged manner of dealing with the property, the majority confuses the ease with a suit to enforce a trust, to the extent of half the property. Plaintiff is not declaring on a trust in part of the property. He says, “Give me more than the law of trusts will give, because my contract entitles me to more. ’ ’ Under the contract, he claims the land given his.wife by her parents. Without such contract, no court would give the husband all of that land. It is manifest that proving property was bought with joint funds and title placed in the name of one party is no evidence that the parties made a contract that, on the death of one, the survivor should have all of the property. With all deference, it seems to me the .majority is confused on what is indispensable proof and on what is proper evidence to establish whatsoever is indispensable. The mind of man cannot conceive how this plaintiff can get all the property without competent proof that the contract he sues on was made, and that its provisions entitle Mm to all. It «seems to be conceded that, on the question, the only competent testimony is that of Mr. Walker. As, then, nothing will base the relief the majority proposes to give plaintiff except the contract pleaded, and as nothing but the testimony of Mr. Walker is competent evidence upon the existence and provisions of this contract, elimination brings about that plaintiff can have no relief unless the testimony of Walker establishes the contents of the paper with the clarity required by hornbook law. To whether it does this I now address myself.
III. There is a denial that the alleged contract bore the signatures of plaintiff and his wife. The only competent testi*308mony as to signatures is that of Mr. Walker, and he disclaims ability to speak to the question. He says:
“At this time, I don’t think I was acquainted with the genuine signature of either one of them: that is, to take the signatures by themselves and say whether it was their genuine signature, — I wouldn’t be able to do that.”
IV. Part of Mr. Walker’s testimony is clear. I have but one criticism to make of the dealing with it by the majority. It asserts that Mr. Walker carefully read the paper. The testimony is:
“Q. State whether or not you examined this contract. A. Yes, I read it. Q. Did you or not read it carefully? A. I think I did. Q. You read it carefully? A. I would have to do that, from the question that you asked me.”
This is not, in strictness, any statement that the paper was carefully read. The clear testimony is this:
“The contract was handed to me, and I was asked to read it and give my opinion as to whether or not it was valid and binding. Mrs. Stewart said it was the thought of both that she would, in all probability, outlive him, and they wanted to know whether the contract would have the effect of giving her all their property, in case of his death, and whether, in case of her death, it would have the same effect as to him. They expressed the desire that, in case of death of either, the other should have all the property which they owned at the time. After an examination, I said to them that, in my judgment, it was a valid and binding contract; that I should advise that each make a will in favor of the other, and then, in my judgment, the contract and the wills would be binding and valid. Thereupon, I prepared two wills, one for each. They were exactly alike, except that Mrs. Stewart made a special bequest of her watch to one of her nieces.”
It will be noticed that nowhere in this statement does the witness assume to state the wording of the contract he examined. What he does say is that, in his present opinion, the paper examined by him had some provision which would effect that the survivor should have all “their” property, provided mutual wills were executed. He does not reveal a page in his memory which exhibits what the contract was, but gives his deduction *309from some things he does remember. His reasoning is that the parties desired a contract to a certain general effect; that he examined to see whether they had one, and found that they had, if wills were added. His deduction is that the contract, when supplemented by the wills, would, at the death of either, give “their” property to the other. He could testify truthfully just as he does, if, in fact, the paper merely provided that partnership property in existence when one partner died should go to the other if the partnership had not been earlier dissolved. His testimony does not negative a provision making the contract effective only if death occurred by a stated time. It would seem certain that the witness did not read a contract such as is set out in the petition, because, if the contract examined was such a one as that, there was no occasion to say that the contract would be binding and valid if the parties made the will aforesaid, and that then, in his judgment, “the contract and the wills would be binding and valid. ” »If the contract provided that all property owned by either partner or the partnership should go to the survivor, no matter when the death occurred, and no matter whether the partnership then still subsisted, there was no occasion to make a will. Such will gave less than such a contract. Such contract would give the survivor all. The will would give nothing but the individual property and the half interest in the partnership possessed by the decedent. The majority intimates that advising the wills may have been due to abundance of caution. The witness makes no such claim. He does not say he thought the contract would effect the purpose of the parties, but advised it would be safer to make wills, and so save all doubt upon the point. He says the wills were necessary : in other words, that the contract did not contain the survivorship clause. His testimony is:
‘ ‘ I said to them that, in my judgment, it was a valid, binding contract, and I would advise that She and her husband each make a will in favor of the other, and that then, in my judgment, the contract and the wills would be binding and valid.”
And there is no room for urging mere abundance of caution. The majority not only concedes but asserts that the advisor was well skilled in the law. We are all agreed that the alleged contract was effective without the making of a will. No skilled *310lawyer would doubt it. As well say that proof that a deed was made is not weakened by the fact that a skilled lawyer who claims he saw an effective deed advised the grantee to take a mortgage on the same land from the same grantor. In the dissent by Mr. Justice Evans, addressed to the finding that the land given to Mrs. Stewart by her parents should go to plaintiff, the point I have just spoken to is most forcefully dealt with. It is there said, as to the right to include the land given the wife by her parents, that “rests wholly upon four little words,” found in the alleged contract.
No attention was directed to particular words. * * * Nor did the proof offered purport to be anything but an approximation or substance of the contract. * * * The method adopted for the proof of the contents of the alleged lost contract was a very vague one. The purported copy set forth in the pleading was formulated by the pleader; not by the witness. * * * Is the evidence clear and convincing that these little words were contained in the alleged lost contract? * * * He was testifying to his recollection of the contents of a paper read 20 years before, which had been completely forgotten by him for many years. Can it be said that this general and approximate recollection by the witness of the contents of this paper is clear and convincing evidence that the paper contained the four words * * * upon which the title to the 136 acres hangs? I cannot think so.”
It seems to me the only flaw in the dissent is failing to hold that what is said of proof of part of plaintiff’s claim applies with equal forcé to all of the claim. All, as well as part, rests upon the proof of the alleged contract.
V. Counsel for appellee evidently were of opinion that the testimony referred to would not meet the exigencies of this case. They did not stop with it. They brought the witness squarely to the vital point, and attempted to have him say that the paper examined by him contained the survivorship clause pleaded. Assume here that witness carefully read the paper on a single occasion, 20 years in the past. No matter how carefully it was read, that will not add to the clarity of the testimony which attempts to give the result of such reading. When the vital point was reached, and the witness was asked concerning the *311alleged survivorship clause, this occurred: He was asked to examine “that part of the first page of the petition closed in pencil line, and to state whether or not, as you recollect, the same is substantially a copy of the contract exhibited to you that day by Mrs. Stewart, and on which you gave her the advice you did and prepared the wills you have testified to preparing.” He answered, over objection:
“I could not from recollection give the contents of that paper, only in a general way. This paper agreed in the parentheses on the first page of the original petition is as near my recollection of it as I can give now, and I think it is my opinion that the date 1882, — in this, I think it was a year earlier, 1881. Now I do not say that to be sure. I think it was 1881, from my recollection of the contract, and perhaps more from my knowledge and of their business and when they were doing business and from the conversation there that day; and from that I think this is incorrect as to its date, although it may be correct as to its date; but the contents of this is as near my recollection of what that contract was as I can give it.” (Ab. 81.)
This testimony does not appear in the majority opinion. If it be as much as referred to, it must be by the declaration that the contents of the paper “are as fully proven and as clearly made known as if the written instrument itself were before the court. ” In all deference, that is a rather strong indorsement of this loose, almost incoherent testimony.
5-a
This loose statement deals with an examination made 20 years before the day on which this testimony was given. To be sure, there is an attempt to strengthen the ease by claiming an extraordinary memory for the witness. On page 77 of the abstract appears a claim by the witness to remember, 20 years back, where all the parties were sitting, with reference to each other, and that he remembers plaintiff “had his feet upon the desk. ’ ’ If this supports the case of the plaintiff because it does disclose an extraordinary memory, that case is weakened because it appears also, and most strongly, that the witness lacked average memory. Eleven years before the day on which he testified, he drew and witnessed a will for Mrs. Stewart. On *312the day of the trial, he remembered what occurred 20 years earlier, when he examined the alleged contract, bnt he had utterly forgotten the making of this will, which was 9 years' more recent than the examination of the contract. It may be said that it is not unusual to remember an event long past, and to forget one more recently occurring. As a rule, this is true only where senile dementia is indicated. Be that as it may, such an avoidance can hardly avail where the more recent event is highly impressive — as much or more so than the more remote occurrence. I submit the witness does not claim to remember that the contract was the one pleaded. But if, as is insisted by the majority, he does remember the contents of the contract, from a single examination of the paper, made 20 years before, he should not have forgotten the will in question, prepared 9 years subsequent to the examination of the contract. The will is exceedingfy elaborate and complicated, and must have required great care and preparation. What is more, if the witness remembered, 20 years after the examination of the contract, the terms of that contract, then he surely remembered those terms at a time 9 years earlier. Grant that one might remember a contract 20 years after reading it, and not remember a will drawn by him II years after drawing it, I know of no peculiarity of the human mind by which one would remember the terms of a contract 20 years after reading the contract, and have forgotten the same contract -11 years after reading it. If, then, the witness did remember the contract when he drew this will, it is inexplicable how he can have forgotten the will. As said, not only was it complicated and laborious, but it was an absolute repudiation of the contract. To follow the majority to the logical end, one must believe that the witness here had so good a memory as that one may depend oh his narration of the terms of a contract read 20 years before, and so poor a memory that he has utterly forgotten the drawing and witnessing of the will which destroyed that contract, which will he drew only 11 years after reading the contract. I do not care to elaborate the claim that he did forget the will. A reference to page 74 of the abstract will demonstrate that he did.
On one theory, he had forgotten the contract when he prepared this will. If so, it is strange he remembered the same *313contract 8 years later. If his testimony were clear,' — and it is not, — the weight of it must be seriously affected by his not having recollected the contract in 1907, while professing to recollect it in 1915. On the other theory, if he did recollect the contract in 1907, when he drew what should certainly have impressed him as a breach of the contract, then the fact that he does not now remember the very making of such a will greatly detracts from any claim that may be made that his testimony establishes he recollected the material clause' in the contract, in the year 1915. The majority does not mention the forgetting of the will. I do not overlook the witness says he has been pretty busy in the last 30 years, and. has transacted a great deal of court business and written many instruments. If the fullness of his life explains why he has forgotten the making of this will, it also affords a reason for being skeptical as to his recollection of the contract. If a full professional life explains why, in 1915, he had forgotten an impressive occurrence in 1907, that absorption is some reason for doubting that, in 1915, he could recollect, from one reading, a paper read by him in 1896.
VI. It has, I think, been made to appear that Mr. Walker does not profess to remember the terms of the alleged contract. And up to this point, his testimony is neither clear, convincing, nor satisfactory. I now come to a matter which comes near to demonstrating affirmatively that, on September 26, 1913, only some 15 months before, he testified he did not remember the alleged contract. And this point the majority gives practically no attention to. On that day, he signed and had plaintiff verify an application reciting that said will had been filed for probate, and praying that same be admitted to probate. This will utterly disregarded the alleged contract. If he remembered the terms of that contract when he became a witness, in January, 1915, he should have remembered them on September 26, 1913, when this application to probate was made. If he then remembered these terms, said application is inexplicable. If the terms of the contract were then remembered, and are what plaintiff now asserts them to be, the maker of the will had no property to will. Why should one who knew the will was a piece of waste paper ask that it be probated? Why should he say to the court, *314oil oath, of his client, that “this applicant was the husband of decedent, and is interested in the estate and the settlement thereof?” If, by contract, he owned all the property devised by the will, what did it matter that he was the husband of deceased ? The statement is, in effect, a declaration that his rights in the property arose from that relation, and not from contract. Why should one who knew that decedent had no estate, that there was no “property of the estate,” and that he owned all that the will touched, say that, “owing to the character of the property of the estate, the nature of the legacies in the •will, and some other matters that may be involved in the estate, it is desired that all matters as to the probate of the will and questions as to its being admitted to probate be determined at an early date ? ’ ’ Why should one who owned all the property described in the will say “that, so far as the applicant knows or is informed, there will not be any objections made to the probate of the will?” The testator having nothing to devise, how was it material to say that “the person named as executor in .said will is not now a resident of Iowa ? ’ ’ Why, as late as October 24, 1913, was there a contest made against this executor’s serving, on the ground that, because a nonresident, he could not manage the estate properly? When the executor resisted, giving as one reason that testatrix intended to enlarge her légacy by the fees due an executor, why' was it answered that the legacy as found in the will was all that testatrix “intended to leave that branch of the family?” Why should Mr. Walker testify that he advised this application in order “to have the property taken care of?” If it was remembered that the contract made plaintiff owner, it did not matter what ability to manage that property the executor named in the will had or did not have; it did not matter what intent there was to enlarge his legacy. No application that the probate court care for the property was necessary. The owner of the property could demand it and care for it himself. There was no need for the owner to have the court act because of “the character of the property of the estate.” This owner had no interest “in the estate and the settlement thereof.” As to him, there was no estate to settle, and “no property of the estate.” It is evident that, a short time before the petition in this suit was filed, *315neither Mr. Walker nor the plaintiff remembered any contract such as is now being asserted. Plaintiff pleads that decedent "had no right or interest in any of the property, either real or personal, which, in what is termed her last will, she purports to bequeath or devise, by which she could deprive this plaintiff of the sole possession and absolute ownership of the same at her decease.” In second amendment to petition it is pleaded that all the property attempted to be willed was accumulated "under the terms of said contract.” This was evidently not remembered when said probate proceedings were conducted, a short time before the petition in this suit was filed. The only possible explanation is that, while witness remembered, in January, 1915, that there was such a contract as is now asserted, he did not remember it on September 26, 1913, and on October 24, 1913. But such explanation comes very near to destroying the standing of the memory of the witness.
I adopt the statements of Mr. Justice Evans as to the inconsistent conduct exhibited in the application to probate and the contest on who should be appointed executor, but am unable to see why that inconsistency operates only against giving plaintiff a certain part of the property. It seems to me it is as much and as good reason for denying him all of it.
6-a
But I must not overlook that the majority attempts an explanation. It is that the probate proceedings were initiated because "it was his duty, under the law, to file the will with the clerk for probate. There is a penalty for suppressing it. Section 5043 of the Code of 1897.” That statute provides a severe penalty if one having in his possession or under his control any last will "willfully suppress, secrete, deface or destroy the same * * * with intent to injure or defraud any devisee, legatee or other person.” How could this statute touch the plaintiff or his counsel, after plaintiff had promptly filed said will with the clerk? What penalty does it threaten that compelled the application to probate aforesaid? The statute does not explain.
*3166-b
There is still another time at which it was forgotten that plaintiff owned this property. He was served with formal notice to make an election under the statute. Everything indicates that the witness Walker drew the resulting declination to take under the will. The statute has, of course, no application where the deceased spouse leaves no property. It is, therefore, undeniable that a statute election to take under the will is a solemn admission that the testator owns what the will devises. A declination under the statute, as much as does a taking, admits that testator owns such property, because the .declination works an election to take, instead of what is given by the will, such part of said property as is given by statute.
VII. The witness is competent, but not disinterested. He states laboriously what he did and did not do about drawing pleadings and aiding in trial. But he studiously refrains from saying that he has no financial interest growing out of the fact that his partner is, conducting this litigation. The case is fairly within State v. Jensen, 178 Iowa 1098, where a partner was disqualified from helping prosecute an indictment, because of a civil suit carried on by the other partner.
VIII. Some things shown by the evidence tend to disprove, rather than to prove, that the claimed contract ever existed. One alleged provision of it is that the husband “is to transact and do all the business, and sign the firm name E. A. Stewart to any and all papers necessary.” If there was such contract, why did husband and wife affix their individual signature to the paper selling the partnership store, or to the contract to buy the Gwinup farm ?
The alleged contract contemplates inevitably that the time of the husband belonged to the joint venture, and the majority •opinion asserts he so devoted it. Why, then, the testimony that he did a large separate business?
There is testimony that, when the husband effected insurance, he did so in the name of the wife. If he had the interest he now claims, he endangered the insurance by obtaining it in that manner.
Why did plaintiff respond to a formal notice requiring him *317to elect, by declining to take under the will? Tbe will gave him a life estate in lands which, under the contract claimed by him, he owned in fee. The natural answer by the possessor of such a contract would have been a statement that he had no occasion to elect whether or not to take under the will, because he owned the property attempted to b.e disposed of by the will.
-8-a
The plaintiff, as a witness, was asked:
‘ ‘ Q. Now, why did you have these deeds all in her name ? ’ ’ He answered: “Well, the reason I put it in her name was because it was property we wanted to keep for ourselves. I was always sickly, and if anything happened to me, she would have no trouble afterwards. You see in the Alcorn affair they had robbed the widow there, and we had no children, and we fixed it so, when I was gone, there would be nothing to bother the woman. That was my reason.”
When asked whether he recollected why he put “the title of the Kansas land in the name of E. A. Stewart,” he answered: “It was because it was trading land, and I was not expecting to keep it.”
How unnatural all these answers are, in view of the asserted contract. How natural it would have been to answer:
“I did these things because the contract I am seeking to enforce required me to put the title to lands bought in the name of my wife.”
8-b
All the testimony, including Mr. Walker’s, agrees that Mrs. Stewart was a conscientious, God-fearing woman. It is inconceivable that such a woman would have made the will she made, knowing that she had made such a contract as is asserted. Something is claimed for the wills as being a construction of what was intended by the contract. If the contract was worded as claimed, it needed no construction. But if construction is the theory, an honest woman construed it when she made her last will, which repudiates such a contract as plaintiff asserts,
*3188-0
The contract is unnatural and unreasonable. It is claimed to have been made with one who had just left an earlier partnership 'as an insolvent, with judgments hanging over his head. The enterprise required a capital of some $215, which the husband borrowed by having the father of his wife sign the note. Past treatment of Mrs. Stewart by her parents made it reasonably plain that she would receive a large property from them. It is testified to without dispute that she was a capable business woman. Tet, the claim asserted is that, in this situation, she made an agreement that everything she might ever own should belong to her husband after she died, and that even what her parents might give could not be willed to those of her blood, to the grandchildren of the donors. Something is claimed for the love of the wife for the husband. If that was strong enough to prove that she desired to give him what her parents gave her, at the expense of the only grandchildren of those parents, how can it be explained that she made a will recognizing the natural claims of these grandchildren?
IX. I am constrained to dissent from the holding of the majority that the contents of the contract “are proved by the-testimony of Mr. Walker * * * Its contents are as fully proven and as clearly made known as if the written instrument itself were before the court.” Nor can I agree that the probate proceedings are ‘ ‘ only a circumstance tending to show, if anything, that he consented to the revocation of the original reciprocal will # * * and it has no such tendency under the record in this case.” I think that these proceedings, and all else which has so far been adverted to, work that plaintiff has failed to establish his case by that amount and quality of evidence which the law requires.
It would be affectation to go deeply into authority on the degree and quality of proof required. For manifest reasons, sounding in public policy, the evidence by which one person takes the estate standing in the name of another must be clear, satisfying, convincing, — practically overwhelming. See Baker v. Vining, 30 Me. 121; Mullong v. Schneider, 155 Iowa 12; Andrew v. Andrew, 114 Iowa 524, 526, and cases cited; Malley v. *319Malley, 121 Iowa 237, and cases cited; Stiles v. Breed, 151 Iowa 86; Potter v. Potter, 185 Iowa 559; and Melin v. Melin, (Iowa) 171 N. W. 20 (not officially reported). If tbe claim, were that tbe alleged contract was oral, instead of the claim that it was written and has been lost, appellee would be confronted with the requirements of the statute on express trusts and those of the statute of frauds. See Edson v. Parsons, 155 N. Y. 555; McClanahan v. McClanahan, 77 Wash. 138 (137 Pac. 479). Where the law fears perjury will be committed unless there be a duly signed writing, it may well be said that the law is hostile to oral proof that the contract was in writing and has been lost. The danger of perjury is as imminent in one case as the other. While I do not claim the law will refuse evidence of the contents of a contract which must be made in writing, where it is shown that the contract has been lost, I do say that the policy underlying the requirement that the contract shall be in writing emphasizes that the proof of the contents to such lost writing must be clear and overwhelming. See In re Estate of Thorman, 162 Iowa 237, 239, and cases cited.
Speaking to the farm given the wife by her parents, the dissent by Mr. Justice Evans says:
“I think that the evidence in that respect has much more corroboration in the circumstances, as well as in its reasonableness and probability, than does the evidence pertaining to the individual property of the wife. I cannot avoid doubt of its sufficiency, even in this respect. I am not disposed, however, to interpose my mere doubt as a basis of dissent on this point from the settled judgment of the majority.”
This indicates upon just what that “settled judgment” rests. The basis seems to be that doubts of the sufficiency of the testimony are not sufficiently vigorous. The consultation gave me the impression that the claim of contract was sustained because, while the testimony for plaintiff was not strong, it had not been demonstrated that the asserted contract had not been made. As I view it, this exhibits a mental twist. Such a contract cannot be held to be established unless the testimony is practically overwhelming, and clearly satisfies the judicial mind of its existence. It is not enough that the claim of the plaintiff is possible, or even probable. It is not enough that the testi*320mony for the defendant has not satisfied the court "the alleged contract was not made. If, when the testimony is all considered, the mind of the judge is not abidingly satisfied that the claims-of the plaintiff are made out, then his claim should be rejected.
"We said, in Stennett v. Stennett, 174 Iowa 431, at 435, that, to establish such a contract,' “the proof must be clear, un- ' equivocal and definite, ’ ’ and held that the proof there did not-meet this standard. Many inconsistencies and contradictions found present in this case controlled in the Stennett case. It being found here that the witness is skilled in the law, unusual clarity was demanded.
Insistence upon this burden will, in individual cases, work hardship, but not a greater hardship than to deny all relief because the contract was not made in writing originally, even though there be irrefragable proof that such contract was orally entered into. The occasional hardship will be found to arise because of negligence, and such isolated suffering is more than compensated by general safety afforded by insistence upon strict proof. I say, in all respectfulness, that an affirmance here will tend to prove the statement in Graves v. Bonness, 97 Minn. 278 (107 N. W. 163, at 164), that it has been charged:
“American appellate courts rule on such questions to sustain or reverse the trial courts because of convictions as to the merits of the case, or for other reasons which they are unwilling or unable to express.”
And say further that the majority opinion will either upset elementary rules of the law of evidence, or else be a decision that will remain in the books without either being followed or being expressly repudiated; that it will accrete the army of judicial “snags,” and of cases that are overruled by being “distinguished.”
Division Two
The plaintiff can recover nothing in this suit, even if he proved the existence and the contents of the alleged contract.
I have exhibited the probate proceedings as an evidentiary factor bearing on the weight to be given to the testimony of Mr. Walker. I now enlarge, and assert that these proceedings are more than a piece of evidence on that point, and that they *321estop plaintiff from now asserting that he, and not testatrix, owned the property described in the will and in the petition.
As to this point, the majority says:
“There is no estoppel shown in this case. No prejudice resulted to any of the contesting parties as a consequence of the silence, or even active participation, of the plaintiff in the probate of this will.”
It is to be gathered from the opinion that there is no estoppel because the admission of the will to probate did not settle who owned the property described in the will, and that the admission was no benefit to plaintiff and no injury to the appellants. Grant that. That such want of advantage and of prejudice, respectively, is fatal to an estoppel in pais is true. But the majority overlooks that the estoppel here is one that the books classify as “estoppel by conduct in court.” In such estoppel, the element of prejudice is supplied by the fact that it would discredit the administration of justice if one were allowed to assert a thing in court in aid of an object then being promoted, and later, to aid a differing object by an assertion contrary to the first. See Bigelow on Estoppel (6th Ed.) 783. I contend that it is overwhelmingly settled that, on estoppel by inconsistent conduct in court, it is immaterial that neither loss nor gain have resulted from the change in position.
It is hornbook law that one may not make a solemn assertion in court, then having knowledge of all the facts, and afterwards obtain relief by the assertion of something which is so inconsistent with the position first taken as to destroy that position. See Tone v. Shankland, 110 Iowa 525, at 528; Clough v. London & N. W. R. Co., L. R. 7 Exch. 26; Butler v. Hildreth, 5 Metc. (Mass.) 49; McCormick v. McCormick Harv. Mach. Co., 120 Iowa 593; Theusen v. Bryan, 113 Iowa 496, at 502; Oliver v. Monona County, 117 Iowa 43; Powers v. Iowa Glue Co., 183 Iowa 1082; Sloanaker v. Howerton, 182 Iowa 487; Kirkhart v. Roberts, 123 Iowa 137, 139; Kelly v. Norwich F. Ins. Co., 82 Iowa 137, 142; Wapello St. Sav. Bank v. Colton, 143 Iowa 359, wherein is quoted with approval the statement of Lord Kenyon that:
*322“A man shall not be permitted to blow hot and cold with reference to the same transaction, or insist at different times on the truth of each of two conflicting allegations, according to the promptings of his private interests.”
We said, in Thorson & C. Co. v. Baker, 107 Iowa 49, at 50, that no suitor shall be allowed to invoke the aid of the courts on contradictory principles of redress upon one and the same line of facts. In City of Sioux City v. Chicago & N. W. R. Co., 129 Iowa 694, we condemn the assuming of “antagonistic positions in litigation with reference to the same property or the same fact or state of facts.”
We said, in Seeley v. Seeley, etc., Co., 130 Iowa 626, at 632, that it is not essential to the application of this principle that there shall be technically an election of remedies, ‘ ‘ and no action in court need be taken as the basis for such an election; any unequivocal act with knowledge whether in court or not is sufficient. ’ ’ And this estoppel prevails as well on plain inferences from the facts in hand as on the facts themselves. Bigelow on Estoppel (6th Ed.) 788, citing Ormes v. Dauchy, 82 N. Y. 443; Trustees of East Hampton v. Kirk, 68 N. Y. 459, 464.
.Assent to a particular proceeding in court, if given with knowledge of the facts, is conclusive. Bigelow on Estoppel (6th Ed.) 787, citing Marquette, H. & O. R. Co. v. Marcott, 41 Mich. 433. It is all summed up in Bigelow on Estoppel (6th Ed.) 783, by a statement that it may be laid down as a broad proposition that one who, without mistake of fact, has deliberately taken a particular position in the course of any litigation must forever act consistently with that position.
What if obtaining the admission to probate gave plaintiff nothing? Even if the position first taken gets a party nothing of value, how can that affect the rule, which is that one may not get something in court which would give him something by making an assertion which is contrary to a position taken earlier ? The rule has often been applied where nothing was got by the first position. Kearney Mill. & Elev. Co. v. Union Pac. R. Co., 97 Iowa 719, at 724; Elliott v. Iowa Cent. Bldg. & L. Assn., 109 Iowa 39. A party has been estopped because of a position taken in an action which he discontinued by dismissal without trial (Kearney Mill. & Elev. Co. v. Union Pac. R. Co., 97 Iowa *323719, at 726), and where all he got by taking the earlier position was a judgment void for want of jurisdiction (District Twp. of Clay v. Ind. Dist., 69 Iowa 88, at 90, 91; Shank v. Mohler, 93 Iowa 273; Ellis v. White, 61 Iowa 644, at 646; Arthur v. Israel, 15 Colo. 147 [25 Pac. 81]; Nield v. Burton, 49 Mich. 53 [12 N. W. 906]). The making the matter turn on want of prejudice wholly disregards all applicable law.
The election “cannot be withdrawn though it has not been acted upon by another by any change of position.” Kearney Mill. & Elev. Co. v. Union Pac. R. Co., 97 Iowa 719, at 725, citing Bigelow on Estoppel (5th Ed.) 674. See Bigelow on Estoppel (6th Ed.) 733; Insurance Co. v. Norton, 96 U. S. 234; Ward v. Day, 4 Best & S. *337, *355; Campbell v. Kauffman Milling Co., 42 Fla. 328 (29 So. 435); O’Bryan Bros. v. Glenn Bros., 91 Tenn. 106 (17 S. W. 1030). Where one claims she dismissed her suit without prejudice, she is estopped to claim in the Supreme Court that there was a final judgment to be reviewed; and it is not material that elements essential to an estoppel in pais are lacking, or that the taking of the contradictory position has worked no prejudice. Mollring v. Mollring, 184 Iowa 464. Where defendant makes a special appearance, and challenges the jurisdiction of the court on the ground that notice was served on an improper person, if effective service is subsequently had, it may not thereafter plead in abatement on the ground that the action was prematurely brought because the first notice was binding and effective; and it is held the position may not so be chaiiged even if the original assertion to the contrary has caused the plaintiff no injury. Hueston v. Preferred Acc. Ins. Co., 184 Iowa 408. Though a delivery of a shipment by a carrier is unauthorized, it is ratified if the shipper thereafter, with knowledge of all the facts, demands payment of the price from the buyer, and such demand estops him to sue the carrier for conversion although his subsequent taking of this contrary position has worked no injury. Midland Linseed Co. v. American L. F. Co., 183 Iowa 1046.
I conclude that the disposition of the point by the majority on the ground that appellant suffered no prejudice is a disposition upon a ground which is not in the least controlling, and is utterly untenable.
*324II. Tbe will made by tbe wife in favor of plaintiff was made on May 1, 1896, and after the date of the alleged contract. The deed from the parents to Mrs. Stewart was a gift, and it was made later than said will was, on December 26, 1896. (Abs. 100, 216.) The contract on its face is a partnership contract. Throughout all the pleadings,’it is treated as being such a contract. The opinion so treats it, time and again. The will cannot be said to have contemplated devising this gift from parent to child, because the gift was not yet made. If the partnership contract is carried beyond disposing of all property accumulated by the partnership, then the partnership contract diverts the farm given to Mrs. Stewart from those of the blood to a stranger to the blood. In other words, the partnership contract is claimed to cancel the will of Mrs. Stewart, by w> eh she attempts to pass the land given to her by her parents to the only grandchildren of those parents. A court of equity should not strain to give the contract such effect. And the least that should be done is to construe the alleged contract to cover nothing but property accumulated by the partnership, as such. On this point the dissent of Justice Evans covers the ground fully and most ably.
III. One statement by the majority is that “plaintiff, however, does not rely on a claim of partnership as a basis for the relief sought in this case.” In the light of the pleadings, of plaintiff’s own testimony, and of the relief sought and given, this is a most remarkable pronouncement. If language can express a thing aptly, this record and the majority opinion overflow with words that can have but the one meaning, to wit:
That the parties contracted to and did form a partnership; that same accumulated property; that such contract partnership subsisted until the death of the wife dissolved it; that it then possessed the property in question; and that plaintiff demands all of such property because the terms of the partnership contract give him all of the property if the partnership is still in existence when the other partner dies. In other words, the entire framework and the theory of the ease is that the parties remained in the contract partnership until death dissolved that partnership; and that while, without the contract, the survivor could not have all the partnership property, by the terms of the *325contract he gets all such property, provided the partnership subsists until death dissolves it, and le'aves the claimant the survivor. It is not a suit based upon the fact that the parties were once in partnership, dissolved it, and then formed a partnership other than the one formed by said contract, or that they formed a trust by investing the money of the dissolved contract partnership in the name of one of the parties. It is a suit demanding that the survivor have all the property because the partnership subsisted until Mrs. Stewart died, and that, therefore, the condition precedent of the contract had transpired. I invite an examination of the petition and the decree, and of the testimony of Mr. Stewart, and am sure that thereupon it must be found that, in this suit, plaintiff can recover nothing unless it is made to appear that the partnership continued until it was dissolved by the death of Mrs. Stewart. If it was dissolved by something other than that, no rights accrue under the contract, whatever rights the plaintiff may have. I submit it is absolutely proved that the partnership was dissolved years before Mrs. Stewart died.
Nothing appears in the alleged contract to compel the partnership to continue until one of the partners die. See 2 Lindley on Partnership (2d Ed.) 571. The partnership was dissolved about September 25, 1894, by a sale of the entire stock and the fixtures. The contract expressly provides that the partnership shall be one conducting a “general store.” Necessarily, such a sale of stock and fixtures terminated such a partnership. It is well settled that “a sale which practically includes all the property used by a firm in carrying on its business, whether made by the firm or a member thereof, operates as a dissolution thereof.” See note found on page 416-of 69 Am. St., citing the following authorities: Patterson v. Hare, 4 N. Y. App. Div. 319, 320; Pennville Nat. Gas & Oil Co., 21 Ind. App. 1; Whitton v. Smith, 1 Freem. Ch. 231; Smith v. Vanderburg, 46 Ill. 34; Thompson v. Bowman, 6 Wall. (U. S.) 316; Blaker v. Sands, 29 Mans. 551; Dellapiazza v. Foley, 112 Cal. 380.
. It follows plaintiff should fail in this suit because, even if the alleged contract were proved, such contract defeats the suit brought to enforce it. The contract relief is due only if death dissolved the partnership. Here, it appears as matter *326of law that it was dissolved by act of the partners in selling ont. The contract gives property to the partner who shall survive the other — to the surviving partner in the contract partnership. There can be no such surviving partner, if there be no partnership existing when one of the parties to the contract dies. It follows inevitably that the contract deals with, nothing save property that may be owned by the contract partnership when death dissolves it. In a suit upon such contract, it is fatal that the contract partnership was dissolved before either party to the contract died.
I am unable to agree to the statement in the dissent of Justice Evans, that the selling of the store “was not necessarily a dissolution of the partnership.” So to declare overlooks that the contract was for a partnership in a mercantile store. Of necessity, selling that store and its stock, fixtures, and good will ended the contract enterprise. No doubt, investment of what was realized from operating and from selling the store might become the capital of a new partnership, or trust property. No store business was engaged in after the sale. And whatever rights might accrue after the sale dissolved the contract partnership, they do not rest on the contract to become partners in the store business that was sold. The sale ended the contract business and the contract.
IV. -It is defended that, if the contract was made, it was with purpose to hinder and delay the creditors of plaintiff. I have to say there is no reasonable explanation of why the contract was entered into, if that was not the purpose. Just before its alleged making, plaintiff had retired from a concern that had become insolvent, and there were unsatisfied judgments against him, and he was insolvent. The contract was not recorded. It was never mentioned or shown, except that, 13 years after it was made, it was read by Mr. Walker; and as to showing it to him, it was no doubt thought that the exhibition was a privileged communication. Plaintiff made no claim of rights under the contract, and his wife asserted that he had none. No proper reason can be imagined for covering the half interest of the plaintiff with a firm name that was the name of the wife. Such firm name concealed that plaintiff had any interest which creditors could subject. It told the world that the wife owned all. *327No purpose but a eovinous one explains putting tbe lands in the name of the wife. The contract stipulation that lands should so be held does not explain. The contract was at an end when most of the property was acquired. Of course, I agree with the statement of the dissent of Justice Evans that defendants had the burden of proving the alleged fraudulent purpose. But I submit they have proven it. It must usually be done by circumstantial evidence. It is, here, and the evidence exhibits most of the main badges of fraud. I am unable to agree that the evidence ‘! simply is that the fact of partnership was not generally known.” At the least, the evidence establishes an intent to hinder and delay creditors.
V. Little can be added to what Mr. Justice Evans says on the effect of Section 3154 of the Code. The only criticism I can make is to say that his reasoning calls for his applying the ban of the statute to all the property, rather than to a part of it. The statute provides that neither spouse has any interest in the property of the other which can be made the subject of contract between them. This contract clearly contemplates that any lands or other property either party might acquire in his own right should be transferred to the partnership by death of the survivor. This amounts to an advance agreement for the transfer of such interest as was owned by reason of being a spouse. To put it mildly, it was an advance relinquishment of dower rights to the partnership, and ultimately to the surviving partner. Be that as it may, there is an express provision that the survivor should take all the property, and in consideration pay the debts of both the partnership and of the deceased partner. This might easily become an advance agreement that rights of the spouse exempt from the payment of debts should be exhausted by the paying of debts.
I would reverse.