Retired, concurring in part and dissenting in part, with whom THOMAS, Justice, joins.
The majority cast itself into the role of an omnipresent big brother. In this not unfamiliar personification, the majority arrogates to itself the mission of correcting all Kerper derelictions and profligacy. In order to accomplish its predetermined mission, the majority: (1) determined that the agreement between Wes and Hazel Kerper should be rendered of no effect and that it should be rewritten to reflect the wisdom of the majority; and (2) the majority further granted absolution to the Kerper sisters and saved them from themselves.
It apparently is of no consequence to the majority that while accomplishing this remarkable feat they did violence to the law of contracts, trusts and future interests.
In its opinion, the majority carefully delineates the adjudicative facts of this case and applicable law, then in the last paragraph of page 19 of the opinion, the majority surprises the reader by ignoring what it has previously said about the law.
The magic paragraph on page 936 of the majority opinion states:
We have held that the 1974 wills constituted a contract. The final issue we must now address is whether Wes Ker-per’s 1980 will constituted a breach of that contract. We hold that it did not. The remedy employed by the district court, i.e., imposition of a constructive trust and requiring reimbursement to the trust of the assets distributed to the four Kerper daughters under the 1980 will, does vindicate the literal language of the 1974 contract will but it does so at the price of imposing a burden on the daughters that is the antithesis of the spirit, as well as the letter, of the elder Kerpers’ efforts to provide for their daughters. Although we decline to consider the extrinsic documents and evidence in construing the unambiguous language of the 1974 wills, we are constrained to consider it in determining whether Wes Kerper’s 1980 will was a breach of that contract. To do otherwise would result in our condoning a remedy which ravages the lives of the daughters who were the primary, if not the only real, focus of Wes and Hazel Kerper’s estate plan. We hold that Wes Kerper’s 1980 will substantially complied with the contract he entered into with Hazel Kerper. See Corbin, Contracts, Chapter 36 (1960). To the extent the grandchildren had an expectancy under the contract, that expectancy was realized in the form of benefits flowing directly to their mothers and indirectly to them as dependents of their mothers and as the natural heirs of their mothers’ estates. A conclusion that the grandchildren would be better off had Wes Kerper performed his contract more literally is speculative, counterproductive, produces an absurd result and cannot be sustained under the *941unique circumstances of this case. (Emphasis added.)
This incredible holding reminds me of the legend of Adami and Heva. According to this ancient epic, a raging river separated Adami and Heva. The river was not only deep, swift and wide, but was inhabited by piranha-like creatures that would consume an intruder in a single gulp. When confronted with the impregnable river barrier, Adami simply declared that the river was not there and then walked on dry land to Land Bountiful and the waiting arms of Heva.
So it is in this case! The majority avoided an' insoluble problem by simply declaring that there was no breach of contract. They made this strange ruling without the support of credible authority or rational analysis.
I suspect that Wesley G. Kerper would be surprised to learn that the Wyoming Supreme Court said that he did not breach his 1974 contract. He thought he did. Jerry W. Housel, longtime friend and attorney of Wes Kerper, testified at trial with respect to the breach of contract:
Q. Did Mr. Kerper, who was an attorney, ever mention any problem with breaching his agreement with his first wife, Hazel Kerper, by entering into this new agreement?
A. [Mr. Housel] Well, I mentioned that to Wes when we first talked about it and he said, well, he recognized it was inconsistent with an earlier will and the reciprocal provisions, but he was just confident no one would ever question it, and that’s why he wanted to go ahead with it.
# * * * * *
Q. Did you ever hear Wes Kerper or anyone tell Loujen that by entering into Plaintiffs exhibit 77 and by Mr. Kerper making a new will that he would be breaching a contract to make reciprocal wills with Hazel Kerper?
A. I don’t recall that Loujen or Jill were present when I talked to him about that. I did discuss that with him, not in terms of necessarily breach. I told him it was inconsistent and he was not sure that if push came to shove whether it might be followed, but he was so confident that no one would question it and they would accept it, he wanted to go ahead with it anyway, which he did, but I don’t believe Loujen was in on that discussion. (Emphasis added.)
By making the express terms of the 1973 trust a part of the express and unambiguous 1974 will contract, Wes and Hazel Kerper gave grandchildren in being when Wes Kerper died the status of intended third-party beneficiaries under the contract. Flohr v. Walker, 520 P.2d 833, 838 (Wyo.1974). See also Lane Company v. Busch Development, Inc., 662 P.2d 419, 423 (Wyo.1983). Their enforceable contract right was the right to see Wes Kerper’s estate pour into the 1973 trust corpus creating vested remainders in them. See G. Bogert, The Law of Trust and Trustees § 182 at 346-52 (1979). Contrary to the majority's unsupported conclusion in the suspect paragraph, the grandchildren’s interest in Wes and Hazel’s contract was not some “speculation” that they might receive scraps cast off from their mothers’ life estates in trust income; rather, it was an enforceable contract right to an outright share of the trust corpus if they survived the Kerper daughters.
Wes Kerper owed a clear contractual duty to the grandchildren in being at his death to pour the remainder of his estate into the trust and, of course, he knew that. In spite of that legal obligation, the will he drew in 1980 revoked his 1974 contract will with Hazel. The 1980 will provided in pertinent part:
3. I give, devise and bequeath all the rest, residue and remainder of my property and estate of whatever kind and wherever situate in equal shares to my daughters, Minabelle [Meike] Kerper, Loujen Kerper [Trustee of the 1973 Trust], Janeen Kerper and Jill Kerper Lennon, an undivided one fourth thereof to each; and if any predeceases me the share she would have taken shall go in equal shares to her children surviving and if none in equal shares to my other daughters surviving. (Emphasis added.)
*942On its face, the 1980 will disposed of assets that were supposed to become the corpus of the trust. It also purports to change the legal character of the living grandchildren’s interests established in the will contract from vested to contingent remainders. By executing this new will, revoking his 1974 contract mil, and dispersing his estate contrary to the 1974 will and the unambiguous terms of the trust, Wes Kerper plainly breached his 1974 will contract with his wife to devise and bequeath the bulk of his estate to the trust as corpus, thereby creating vested remainders in the grandchildren. The grandchildren had a solid contract right to equitable ownership of vested remainders in a trust corpus funded by Wes Kerper’s estate and Wes Kerper frustrated the funding of the trust. That is the only conclusion one should be able to draw from the plain language of the controlling documents in this case.
What is perhaps most disturbing about the majority’s holding is the total lack of authority to support their desired result. The only citation given as support for reversing the judgments against the Kerper daughters is a vague reference to the entire Chapter 36 of 3A A. Corbin, Corbin on Contracts, § 700 at 308-09 (1960), which discusses the contract doctrine of substantial performance. This citation is misleading. When I read that chapter, I find that it presents the doctrine of substantial performance with the following text:
When one party has failed to render a part of the performance as and when promised him, the following questions may arise:
1. Is the other party privileged to refuse to render reciprocally promised performance?
2. Is the other party wholly discharged from his contractual duty?
3. Can the other party maintain suit for damages, regarding the breach as “total”?
Id. (emphasis added). There is no way this doctrine can be applied to the facts of this case. To rely on it the majority has to take the position that Hazel Kerper did not perform at least a part of the obligation that she promised in the 1974 will contract, thereby allowing Wes Kerper to only partially perform his part in a similar, equitable fashion. The majority’s own recitation of the facts states that Hazel Kerper performed her part of the contract in full and that Wes Kerper accepted the benefits of that complete performance. Wes Kerper had no legal justification to invoke the theory of substantial performance, but this court fashioned one for him with a little creative legal writing.
The suspect paragraph in the majority opinion finally refers to the “unique circumstances of this case.” I submit that the most unique thing about this case is the way the majority has danced around a clear breach of contract.
The trial court’s determination that Wes Kerper breached his 1974 contract is supported by both the law and the facts as recited in the majority opinion. The fact that the consequences that flow from such breach are harsh should be a neutral factor with an appellate court. It should not be necessary for me to remind the majority what it is not. The Supreme Court is not a court of equity. It is not a tribunal designed to substitute its wisdom for the foolishness of others; and it was not designed to save people from their own greed and folly.
It seems that the majority has adopted a new rule in this case which is: “We are the Supreme Court. Therefore, we can do anything we want to do.”
The majority should heed the words of the late United States Supreme Court Justice Cardozo:
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of *943order in the social life.” Wide enough in •all conscience is the field of discretion that remains.
Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).
I agree with the majority in its resolution of the issues in Parts I and III, but dissent with respect to Part II and would affirm' the trial court on that issue.