Appellees (complainants in the court below) seek by this bill to have the probate of the will of one Easley Walker, deceased, of date December 17, 1907, set aside and annulled upon the ground that the same was not the last will and testament of the said Easley Walker, but the last will was that of July 3, 1915, the execution of which revoked the said former will.
The bill alleges that the complainants did not contest the probate of the will of December 17, 1907, in the probate court, and they seek to have the will of July 3, 1915, declared the last will and testament of the said Easley Walker, and admitted to probate as such. The will of December 17, 1907, is shown by the bill to have been duly probated in the probate court of Houston county, Ala., on October 2, 1915, and is attached to the bill as an exhibit and asked to be taken as a part thereof, and is set out in the foregoing statement of the case. The will discloses upon its face that it was executed upon a valuable consideration based upon conveyances of real estate as well as personal property to the testatrix by the appellant R. H. Walker, who was her husband, the beneficiary named therein, and who, it is alleged; propounded the will for probate.
The recitals of the said will also show that the testatrix had received and accepted the valuable consideration upon which the same was based. The averments of the bill clearly disclose that the ground of contest is rested solely upon the fact that the testatrix, as alleged, executed the will of date July 3, 1915, thereby revoking the will of December 17, 1907. The due execution of the latter will is by no means attacked, but it is treated in all respects as legal and valid, with the exception of the insistence that it was revoked by the subsequent will. The demurrer takes the point that the bill showed upon its face that the will of December 17, 1907, was based upon a valid and valuable consideration moving from the said R. H. Walker to the said Easley Walker, and that the same was of binding force upon the latter, and could not be revoked by a subsequent will.
In Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46, this court, *Page 460 speaking of an alleged promise to make a will which was in writing, and supported by a valuable consideration, said:
"The authorities are overwhelming, and rest on the soundest basis, that such a promise, supported by a valuable consideration, is valid and binding, unless assailed on some other sufficient ground."
This question is given consideration in Bolman v. Overall,80 Ala. 451, 2 So. 624, 60 Am. Rep. 107, from which, for convenience, we take the following extracts:
"There is nothing in this contract which is repugnant to public policy. All the authorities agree that one may, for a valuable consideration, renounce the absolute power to dispose of his estate at pleasure, and bind himself by contract to dispose of his property by will to a particular person, and that such contract may be enforced in the courts after his decease, either by an action for its breach against the personal representative, or, in a proper case, by bill in the nature of specific performance against his heirs, devisees, or personal representative. The validity of such agreements, as remarked by Mr. Freeman, in a recent note on this subject to the case of Johnson v. Hubbell, 10 N.J. Eq. (2 Stockton) 332; s. c., 66 Am. Dec. 773, 784, 'is supported by an unbroken current of authorities, both English and American.' "
"No doubt can be entertained as to the nature of the paper, executed by Mrs. Lohman on December 1, 1881, and delivered by her to Mrs. Bolman, and purporting to be the testator's last will and testament. It is clearly a will in form, being testamentary in frame and verbiage. But it is also a contract, in essence and fact, being executed, as stated on the face of the paper, 'in consideration of past and future treatment,' and, as shown by the bill, in furtherance of a previous parol agreement that it should be executed upon an admitted and specified valuable consideration. Cases are frequent in which instruments have been construed to be partly testamentary and partly contractual. And when based on a valuable consideration, a paper, in form a will, may, especially when delivered to a party interested, or to another for him, constitute legally and in fact an irrevocable contract."
"The power to make such a will having been renounced, the attempt to exercise it is deemed a fraud on the rights of the promisee under the contract, thus bringing into exercise another ground of equity jurisdiction. As said by Lord Camden in Dufoor v. Perran (quoted by Hargrave in his Judicial Arguments, vol. 2, p. 310), there is no difference between one's promising to make a will in such a form and making such will with a promise not to revoke it."
In the above case our court cites the case of Johnson v. Hubbell, 10 N.J. Eq. 332, 66 Am. Dec. 773, from which we take the following quotation:
"There can be no doubt but that a person may make a valid agreement, binding himself legally to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future period, or upon the happening of some future event. It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction. In the case of Rivers v. Rivers' Ex'rs, 3 Desaus. (S.C.) 195, 4 Am. Dec. 609, the court, in sustaining the propriety of a court of equity recognizing and enforcing such an agreement, very properly remarked that a man might renounce every power, benefit, or right which the laws give him, and he will be bound by his agreement to do so, provided the agreement be entered into fairly, without surprise, imposition, or fraud, and that it be reasonable and moral."
It is therefore clear from these authorities that one may, for a valuable consideration paid to him, renounce his absolute power to dispose of his estate at pleasure, and thus bind himself by an irrevocable contract. Counsel for appellee seem to insist that under the provisions of section 6174, Code 1907, the subsequent will necessarily revoked the former, citing Wilson v. Bostick, 151 Ala. 536, 44 So. 389; Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann. Cas. 1914D, 125. It is quite clear, however, that these authorities, as well as the statute cited, by no means apply to a case involving the principle announced in Bolman v. Overall, supra.
It is further insisted, however, that the remedy is by specific performance, and we are referred to the case of Allen v. Bromberg, 147 Ala. 317, 41 So. 771. That case is not at all analogous to the one here presented. There was involved the question of the enforcement of an agreement by one to dispose of his property by will in a particular way. Here, we are not concerned with the question of a mere contract or agreement to make a will for the reason that the bill shows upon its face a will that has been duly executed, based upon a valuable consideration, and has already been duly admitted to probate. There is no occasion, therefore, for a resort to the remedy of specific performance. Indeed, the beneficiary neither needs nor seeks any relief, but he merely stands upon his rights under the probated will, which he insists is valid and binding, and which could not be revoked by the execution of a subsequent will. If it appears, therefore, that the will is valid and binding, based upon a valuable consideration, accepted by the testatrix, and therefore irrevocable, and has already been probated, clearly it would seem the beneficiary is without the need of any aid of a court of equity, and may stand upon his legal rights.
We infer, from brief of counsel, that the court below in overruling the demurrer did so upon the theory that the question here presented should be raised by answer. The bill, however, sets out the facts and makes the will of December 17, 1907, a part thereof, and which showed upon its face that it was based upon a valuable consideration, accepted by the testatrix, and that it was in the possession of the beneficiary, R. H. Walker, when he filed the same for probate in September, 1915, and it further appears that the sole ground of contest was rested upon the assumption that the execution of the subsequent *Page 461 will revoked the former. If the complainants desire to contest the valuable consideration upon which prima facie the will is construed to be based, they may amend the bill by so denying the truthfulness of the recitals of such valuable consideration contained in the will, and to this end, and for such other amendment as may be deemed proper, the cause will be remanded and complainants allowed 30 days in which to amend the bill.
We conclude, therefore, that the question was properly raised by the demurrer interposed, and that it was reversible error to overrule the same. The decree appealed from will therefore be reversed, and one here rendered sustaining the demurrer, and the cause will be remanded.
Reversed, rendered, and remanded. All the Justices concur, except McCLELLAN, J., who dissents.