Aside from a marriage contract itself, I can think of no more sacred contract than that between husband and wife, for the making of mutual and reciprocal wills, and the final disposition of the property after their decease. The contract for disposition of their property, after death of the first to pass, and the final disposition to be made of the remainder, upon the passing of the surviving member of the marital community, in this case, was fully executed on the part of the husband at the time of his death. The wife claimed and received the husband's entire estate, both separate and community; and she was bound in equity and good conscience to live up to the contract on her part. After one of the parties has complied with the contract and passed into silence, and can no longer protest any violation of the contract; and the survivor is left, subject alone to the friendly and kindly favors of others, and acquires new contacts and associations, and receives and experiences the solace and comforts, social, spiritual or otherwise, often bestown, it is then that the court of equity may be called upon to enforce the original contract.
It is suggested in the majority opinion that, "there is no restriction" expressed in the documents (will and contract) against alienation of property by the survivor; and that "none may legitimately be implied therefrom." It seems to me that the contract should be read and understood, in the belief that it was entered into in good faith by both parties; and certainly it would not be good faith, on the part of the survivor, togive away the property acquired through the will of the decedent, to prevent the final residuary devises named in the will from taking anything under the wills so executed. In other words, it must be assumed that the intent was to leave the property to the survivor, on the death of the first member of the marital community, for his or her use and benefit during life. That use and benefit might be exercised in any reasonable and fair way; but it certainly did not contemplate dissipation of the property during the lifetime of the surviving spouse and *Page 272 outright gifts and donations of the substantial part of theestate.
The contract entered into contains the following provision:
"WHEREAS, It is the express will and desire of each of said parties that upon the death of either one of them all of the property owned by the other at the time of his or her death, shall go to, and become the property of the surviving member of this marriage, and at the death of the last member of the marriage, all of the property owned by the one dieing last shall got to the children of Otto Ohms.
"NOW, THEREFORE, in consideration of the premises, and for the purpose of carrying out this express desire, each of the parties has this day executed his and her will, copy of which is attached to and by reference made a part of this agreement. In consideration of the execution of said wills disposing of said property in accordance with the desire hereinbefore expressed, each of the parties hereby contracts and agrees, one with the other, that neither one or the parties hereto shall ever, at any time, revoke cancel or in any manner modify or change either one of said wills so this day executed."
This contract had attached to it, and as a part thereof, the mutual wills referred to, which contain the following paragraph:
"In the event that my beloved wife Lou Ohms shall be living at the time of my death, I do will and bequeath unto her absolutely all of the real and personal property whatsoever, of every name and nature, which I may own at the time of my death, the same to be hers absolutely."
Certainly such a devise of an estate contemplates asubstantial and reasonable use of the property by the survivor, "even to the extent of exhaustion." (Price v. Aylor, 258 Ky. 1,79 S.W.2d 350, at 352.) On the other hand, good faith on the part of such surviving spouse forbids the survivor giving away such a substantial part of the estate as to defeat the chief purpose of the residuary bequest. (Sample v. Butler University,211 Ind. 122, 4 N.E.2d 545, 108 A.L.R. 857, at 868; Price v.Aylor, supra; Moore v. Moore, (Tex.Civ.App.) 198 S.W. 659;Schramm v. Burkhart, 137 Ore. 208, 2 P.2d 14, 17.) The latter is just what has been done in this case. In such case, it is unnecessary to prove actual or intentional fraud. The fraud will *Page 273 rather be determined "by the facts and circumstances under which the transfer was made and from which the law imputes a fradulent motive." (California Consol. Min. Co. v. Manley,10 Idaho 786, 81 P. 50; 9 Am. Juris., p. 372, sec. 26.) In other words, if the result accomplished defeats justice, it will amount to fraud.
It seems to me that it does violence to the contract itself and to all the rules of construction, to hold that the contract, as such, for mutual wills, was valid and binding; and, at the same time, to hold that the survivor might dispose of all the property by gift, in such a way as to prevent the ultimate beneficiaries, named in the contract and will, from realizing the bequest, which was expressly intended for their benefit, after the death of the survivor of the community.
Whether it be a gift in praesenti, completed by delivery, or a gift by will, to be completed at death, in either case, it is a gift. Now, if A contracts, for a consideration, to leave by will his property to B, he can not avoid his contract, after receipt of the consideration, by making an outright gift of the property to C in his lifetime.
The same contention made here was urged in Sample v. ButlerUniversity, 211 Ind. 122, 4 N.E.2d 545, at 546 and 548, 108 A.L.R. 857, wherein the will contained the words "which. I may own at the time of my death"; and the court said: "But such a construction does violence to the very agreement which the wills were made to carry out." (Doyle v. Fischer, 183 Wis. 599,198 N.W. 763, 33 A.L.R. 733; Ankeny v. Lieuallen, (Ore)113 P.2d 1113, at 1118-19; Baker v. Syfritt, 147 Iowa 49,123 N.W. 998, 1001.)
Here was a considerable estate and, except for this contract, the husband might have disposed of one-half of the community estate and two-thirds of his separate property to his children, or any one other than his wife; or had he died intestate, the estate would have descended, in the same proportions, to his children, appellants herein. (I. C. A., secs. 14-102, 14-113,14-114.) So it will be seen, that the surviving spouse succeeded, under this contract and mutual will, to twice (or thrice) as much estate as she would have received, had the husband died intestate or chosen to devise one-half (or two-thirds) his estate to some one other than his wife. Conversely, appellants lost such share, or shares, *Page 274 of the estate by reason of this contract and will, through the holding of this court, as stated by the majority opinion.
The judgment should be reversed.