(dissenting) — I respectfully dissent. I cannot concur with the majority for the reason that I find clear and convincing evidence of substantial and adequate consideration to require the enforcement of the provisions of the mutual or contractual wills of the parties.
Will purchased the 160-acre farm involved herein in 1909, married Nettie in 1923, and they lived and worked together, mostly on this farm, until her death on April 20, 1943, less than a year after the execution of the mutual wills on October *82816, 1942. At the time of their marriage the farm was heavily-mortgaged, but it was all paid within three years after Nettie’s death and more than a year before he married Lillie.
Can it be denied, under these circumstances, that by the joint efforts of Will and Nettie over a period of 19 years the estate held by Will at the time of the execution of the mutual wills was not created or built up? To me it is unjust and unrealistic to say that Nettie had no interest in this farm which equity would recognize in an action to enforce the contractual or mutual wills. Culver v. Hess, 234 Iowa 877, 14 N.W.2d 692.
It greatly disturbs me for the further reason that by such decision, and perhaps the one in Levis v. Hammond, 251 Iowa 567, 100 N.W.2d 638, we appear to be departing from the sound and clear pronouncements of this court on such matters in In re Estate of Johnson, 233 Iowa 782, 790, 10 N.W.2d 664, 668, 148 A. L. R. 748, and citations therein. It is true in the latter ease we denied specific performance of a so-called mutual will, but under those facts no other decision was just and equitable. There the mutual will was executed a few days after the marriage, and there was no showing that the wife furnished anything in the way of a consideration for the contractual obligation. We said therein, “His estate, which was substantial and apparently free from debt, was neither created nor built up by the joint efforts of his wife and himself.” (Emphasis supplied.)
Here the very opposite is true. Will had no substantial estate when he and Nettie were married, and what he had was heavily mortgaged.- Clearly, by their joint efforts, much of the estate Will had at the time of the execution of the mutual wills was created and built up. Surely a court of equity will look beyond the bare title in such cases and, if it finds an adequate consideration, actual or equitable, it will decree performance of the wills not revoked during the life of the parties.
Since we are re-examining our position as to adequate consideration necessary to support a mutual or contractual will, I also suggest we. consider the fact that by such will Nettie surrendered her statutory inchoate right in the property of her husband, and also gave up her right to pass her estate to someone other than those mentioned in the mutual wills. -
*829Bef erring again to the Johnson case, supra, we said that because the wife had no substantial estate at that time, as did the spouse in the case of Campbell v. Dunkelberger, 172 Iowa 385, 392, 153 N.W. 56, we would not find therein a sufficient detriment to sustain the suit. The facts are quite different here, and to me it is inconceivable to say that Nettie, after all her joint efforts with Will, did not sufficiently contribute to the estate of her husband so that she gave up nothing when she executed the mutual will. It seems evident she suffered a real detriment when she gave up her statutory inchoate right in the property held by her husband. Apparently it was earned.
Equity looks to the substance rather than the form, and who can say under this record that Nettie did not, by her joint efforts with Will, furnish present, adequate and substantial consideration, or that it was not contemplated and acknowledged by the parties at the time of the agreement? I would hold it was sufficient to sustain a suit for specific performance, and believe that any other valuation of the efforts of a faithful spouse over such a period of time is unthinkable. — I would reverse.
Peterson, J., joins in this dissent.