(dissenting in part). While I agree with the statements made in the majority opinion to the effect that it is the contract and not the joint will which is irrevocable, I disagree with the interpretation of the contract reached in the majority opinion.
Just what did George Schefe and Anna Schefe, his wife, agree to do in the contract entered into between them under date of April 11, 1938? There can be but one answer and that is that they agreed: (1) To execute the joint will set forth in Exhibit “A” attached to the agreement; and (2) not to revoke or change such will during the lifetime of either and that the survivor would permit such will to stand irrevocably up to the time of his or her death.
These two covenants are so clear and unambiguous that it would seem superfluous to resort to any of the recitals in the “whereas” clauses of the preamble of the agreement to interpret and construe the actual covenants of the agreement.
Inasmuch as George and Anna Schefe did on April 11, 1938, coincident with signing the agreement, execute the joint will attached to the agreement as Exhibit “A,” and by such agreement each had agreed that the survivor would permit such will to stand irrevocably up to the time of his or *124her death, the next question is whether such joint will passed after-acquired personalty.
The residuary clause of the joint will read as follows:
“All the rest, residue, and remainder of our estate left after the foregoing provisions have been satisfied, we give, devise, and bequeath to our daughters, Irma Schefe, Florence Schefe, and Evelyn Borchert, share and share alike.”
In 57 Am. Jur., Wills, p. 796, sec. 1210, it is stated:
“It has always been agreed that, as to personal property, a will speaks as of the death of the testator; both at common law and under modern statutes personal property acquired by the testator after the execution of his will passes thereunder, unless a contrary intention clearly appears. A general residuary clause, for example, or a general disposition of ‘all my personal property’ or ‘all my personal estate’ will operate to pass any personal property acquired by the testator after the execution of his will.”
This same rule is stated in much the same language in the annotation entitled “When will deemed to cover after-acquired property” appearing in Anno. 75 A. L. R. 474, 477, as follows:
“The rule at common law, which has been adopted in most of the states by statute, is that as to personal estate a will speaks as of the time of the death of the testator, and after-acquired personal property passes under the will, unless a contrary intent clearly appears.”
While the legislature early in the history of the state enacted sec. 3, ch. 66, R. S. 1849 (now sec. 238.03, Stats.), which provides that an after-acquired interest or estate in lands passes by a will, if such shall manifestly appear by the will to have been the intention of testator, there is no Wisconsin statute covering after-acquired personal property. Therefore, the common-law rule stated in the foregoing authorities is applicable in Wisconsin. It should be noted that while the law as to after-acquired realty is that it passes only by *125will if there is an intent manifested in the will to so pass it, the common-law rule as to after-acquired personalty is that it does pass under a general residuary clause unless a contrary intent clearly appears.
The residuary clause in the joint will of George and Anna Schefe passed the after-acquired personalty, because there is no intent to the contrary appearing in the will. There being no ambiguous language in the will with respect to an expressed intent not to pass after-acquired personalty, there is no reason to resort back to the “whereas” recitals in the preamble of the agreement in an attempt to spell out such an intent.
Even by resorting to the “whereas” recitals in the preamble of the agreement we do not find an expressed intent not to cover after-acquired property but only a complete absence of any expressed intent with respect to the same whatever. The majority opinion spells out such an intent not to pass after-acquired personalty by implication from the fact that the recitals in the preamble refer only to joint property.
Inasmuch as the inheritance from the deceased daughter, Irma, constituted after-acquired personalty, it passed under the residuary clause of the joint will, and George Schefe having contracted not to revoke such joint will after the death of Anna Schefe, the claimants are entitled to recover on their claim for the proportionate amounts of said after-acquired personalty which they would have received if George Schefe had not breached the contract by attempting to make a different disposition of the after-acquired personalty in the second will.
However, I concur with that part of the majority opinion which holds that the lapsed residuary legacy of Irma Schefe under the joint will is disposed of by the second will made by George Schefe after the death of his wife, Anna Schefe. The joint will not having made provision for the disposition of such residuary legacy, there is no breach of contract in *126George Schefe, either by codicil or new will made after the death of Anna Schefe, disposing of such lapsed legacy. I also concur with that part of the majority opinion which holds that Elmer Schefe took the farm freed from the charge of the $1,000 legacy to Irma.