(concurring). I subscribe to the court’s decision because of the dictates of stare decisis, notwithstanding my doubts as to the wisdom of the rule which we now confirm. The dilemma which we face is comparable to that commented upon by Aristotle, when he said in *349Rhetoric, bk. 1, ch. 15: “Trying to be wiser than the laws is just what is forbidden by those codes of law that are accounted best.”
The results of our holding this to be a joint contractual will are so drastic that a sounder rule, in my opinion, would require clear-cut proof that a contract was actually intended. Take the following example: If a young husband and wife sign a joint will when they are about twenty-five years of age and then one of them dies, the survivor is bound (even if he or she lives another fifty years) and must leave all of his or her property exactly as required by the joint will. In other words, the concrete, once poured, is permanently set; neither remarriage, the birth of new children, or other major changes can alter it. The vicissitudes of life are such that it would seem more sensible to me that we ought not to presume such an intent unless the parties clearly declare it.
A contrary result in the case at bar might well be urged not only in the name of good sense but also by bearing down on our statement in Estate of Schley (1955), 271 Wis. 74, 79, 72 N. W. (2d) 767, where this court said:
“There is no evidence that there were any contractual provisions in the will itself, and a joint or mutual will lacking contractual elements may be revoked at any time by either testator in the same manner as other wills.”
The Schley Case did not cite Doyle v. Fischer (1924), 183 Wis. 599, 198 N. W. 763. Schwartz v. Schwartz (1956), 273 Wis. 404, 78 N. W. (2d) 912, was decided one year after Estate of Schley, and both Schwartz and Doyle appear to be squarely in point, as the majority opinion, written by Mr. Justice Heffernan, convincingly demonstrates.
The policy followed in the instant decision can, of course, be remolded by the legislature. If our reluctant adherence to a dubious rule is deemed misguided, corrective legislation should be undertaken. For example, a reversal of policy could be indicated by a repeal of the *350last sentence of sec. 288.19, Stats. That section now provides as follows:
“No will shall be construed as contractual unless such fact affirmatively appears in express language on the face of the instrument. This section shall not apply to joint wills which exist as a single document.”- (Emphasis added.)
In the field of wills, it is probably more important that the rule be certain than that it be right. Nevertheless, one must acknowledge the wisdom of the observation made by Dean Pound in Interpretations of Legal History (1923), 1: “Law must be stable and yet it cannot stand still.”
I am authorized to state that Mr. Justice Beilfuss joins in this concurring opinion.