(dissenting).
I am not in accord with the holding of the majority and will briefly note my views.
In passing on the special exception referred to in the majority opinion we must accept the pleadings as true. Then the agreement as alleged was made, W. A. Haynes performed his part of it, Parrie Haynes accepted the benefits of it, took possession of, and claimed, the property passing under W. A. Haynes’ will, and thereafter refused to perform her part of the agreement. This part performance is sufficient to take the agreement out of the statute of frauds as to Parrie Haynes because to allow her to' refuse to perform under these conditions would constitute a fraud. Burgin v. Godwin, Tex.Civ.App., 167 S.W.2d 614, Er. ref. w. m. In French v. French, Tex.Civ.App., 148 S.W.2d 930, 936, Er. ref., c. j., the Court said:
“This contract for mutual and reciprocal wills was lawful and binding and could and should be enforced after one of the parties had died and the will of such deceased party probated. Jordan v. Abney, 97 Tex. 296, 304, 78 S.W. 486; Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395; 43 A.L.R. 1020; Epperson v. White, 156 Tenn. 155, 299 S.W. 812, 57 A.L.R. [601] 607; 60 A.L.R. 627; 102 A.L.R. 491.”
The holding of the Supreme Court in Kirk v. Beard, 345 S.W.2d 267, is directly in point on this conclusion.
It is my opinion that the trial court erred in sustaining the special exception,
I am also of the opinion that the language of the codicil by itself is not sufficient to revoke the devises of real estate made to the heirs of W. A. Haynes in the will. This is because it is necessary to attribute a meaning to the word “sums” used in the codicil without any showing that the interpretation is the meaning given the word by the testatrix. In Laborde v. First State Bank & Trust Company, cited in the majority opinion, the Court said:
“It is a well-settled rule — and certainly a wise one — that a codicil may not effectuate the revocation of a will except by express language having that particular effect, or by necessary implication arising from express provisions of the later instrument. Certainly, revocation cannot be implied from vague, doubtful, or ambiguous language used in a codicil, or from language less clear and specific than that used in the instrument sought to be revoked. Schouler on Wills (5th Ed.) §§ 407, 426; Alexander on Wills, § 528; Thompson on Wills (2d Ed.) § 167; 68 C.J. pp. 803, 808, §§ 491, 500; 28 R.C.L. p. 200, § 158; 51 A.L.R. 696, annotation; Adams v. Maris (Tex.Com.App.) 213 S.W. 622.” [101 S.W. 2d 391],
Even if it be said that the meaning given the word by law must be accepted it does not appear that the word has, by law, been construed as including real estate but rather as including money only. See 40 Words & Phrases, p. 718.
In connection with the last above statement it is to be noticed that the majority holds that the quoted testimony of the witness Clements is not admissible. I do not agree with this holding because it is my opinion that such testimony is admissible. Combs v. Howard, Tex.Civ.App., 131 S.W.2d 206.
I would reverse the judgment of the trial court and remand the cause for another trial.