Owen, J.
The principal question of law involved upon this appeal may be stated thus: Where an agreement is entered into by two persons, and especially by husband and wife, to make mutual and reciprocal wills disposing of their separate estates pursuant to their mutual agreement, and where mutual and reciprocal wills are made' in accordance with that agreement, and where, after the death of one of the agreeing parties, the other takes under the will and accepts the benefits of said agreement, equity will enforce specific performance of said oral agreement and prevent the perpetration of fraud which would result from a breach of the agreement on the part of the one accepting the benefits thereof. Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216, 27 L. R. A. n. s. 509; Rastetter v. Hoenninger, 214 N. Y. 66, 108 N. E. 210; Morgan v. Sanborn, 225 N. Y. 454, 122 N. E. 696; Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265; Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998; Torgerson v. Hague, 34 N. Dak. 646, 159 N. W. 6; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347; Campbell v. Dunkelberger, 172 Iowa, 385, 153 N. W. 56; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173; Larrabee v. Porter (Tex.) 166 S. W. 395; [606]*606Stewart v. Todd, 190 Iowa, 283, 173 N. W. 619, 180 N. W. 146; Hermann v. Ludwig, 186 App. Div. 287, 174 N. Y. Supp. 469; 1 Redfield, Wills (4th ed.) 182, 183. It should be borne in mind that it is the contract and not the will that is irrevocable. The authorities generally hold that the will may be revoked, but the contract stands and will be enforced by equity if it be a valid contract and such enforcement is necessary for the prevention of fraud.
In this case it conclusively appears that Bridget and Garret Doyle made not only mutual and reciprocal but joint wills, and that, after the death of Garret, Bridget accepted and received the benefit of the provisions of his will made in her behalf.
None of the foregoing propositions, either of fact or law, are seriously contested by the appellants. They claim, however, that there is no evidence that the joint and mutual wills were made pursuant to an agreement between the parties. It does not appear that there was any written agreement between the parties prion to the execution of their wills, and it must be presumed that such agreement, if it existed, rested in parol. While Garret Doyle testified that such an agreement was discussed in the family, Elizabeth Doyle, who was a member of the family at the same time, testified to the contrary, and the trial court expressed the opinion that, even though their evidence be competent, the testimony of Garret was offset by that of Elizabeth, and the testimony of Garret contributed nothing to the establishment of such a parol agreement. The trial court held, however, that the provisions of the wills themselves, in the light of the facts and circumstances existing at the time the wills were made, conclusively indicated a prior agreement between the husband and wife to make such wills. The views of the trial judge with reference to this question are thus expressed in his opinion which we find in the record:
“The provisions of the joint will show that the makers thereof intended to make, as the will says, a ‘final’ dispo[607]*607sition of all their property. In that will the wife gave all her land to her son James and $2,000 to Elizabeth, and left nothing to either of-her other three children. The father gave only $600 to Elizabeth, who had taken care of him and given him her earnings, and that sum merely reimbursed her for .the $400 which she had paid out for one of her sisters, and placed in her hands a further sum of $200 which she was to pay for religious services for her parents. Her father gave $500 as a gift to each of his other daughters. He gave 110 acres to Garret and only forty acres to James. But that forty, together with the eighty which the mother gave to James by the joint will, was to give .him a farm of 120 acres, or ten acres more than his brother Garret was to get. The division of the entire property made by the joint will shows clearly to my mind that its makers had agr.eed how the distribution should be made, and that neither of them would have'disposed of his or her separate property just as the joint will does dispose of it if there had not been a contract or agreement between them to that effect. In the absence of such a contract it is quite improbable that the mother would have bequeathed in that will $2,000 to Elizabeth and nothing whatever to her other daughters; or that she would have devised her entire eighty acres of land to one son and none of it to her other son. If there had been no such contract, the father would certainly have made a more liberal provision for Elizabeth out of his own estate than he did make for her.; and he would not have then devised 110 acres to Garret and only forty acres to James, who attended to his father’s affairs and lived with him until he died.”
Courts have frequently held that a pre-existing contract to make mutual and reciprocal wills may be conclusively inferred from the provisions of the wills themselves (especially if they be joint) in the light of circumstances existing at the time the wills were executed. Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216; Hermann v. Ludwig, 186 App. Div. 287, 174 N. Y. Supp. 469; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347; Campbell v. Dunkelberger, 172 Iowa, 385, 153 N. W. 56; Larrabee v. Porter (Tex.) 166 S. W. 395.
[608]*608The case of Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265, relied upon by appellants, is not to the contrary. In that case the wills under consideration were not joint, and the lower court failed to find that the separate wills of the two sisters, made at about the same time, wherein each devised her property to the other, were made pursuant to a prior agreement. The appellate court simply refused to disturb this finding of the lower court. Commenting upon that case in Rastetter v. Hoenninger, 214 N. Y. 66, at p. 73 (108 N. E. 210), the same court said:
“In that case the trial court found from the wills themselves and the extrinsic circumstances that there was no contract, and this court held that there was. evidence to justify that finding, which was far from holding that even in that case there was no evidence to' sustain a contrary finding.”
We agree with the finding of the trial court in this respect. The fáct that these wills constitute but a single document, that they were executed at the same time, that each of the testators knew of the provisions made in the will of the other, that some of the children were provided for by one, and the others by the other, testator, conclusively indicates that the two wills resulted from a mutual agreement between the testators and that their provisions were in accordance with such prior agreement.
It seems scarcely necessary to say that even though the agreement rested in parol and was void under the statute of frauds so far as it related to the real estate, there has been such a part performance thereof that equity will enforce its complete performance. Sec. 2305, Stats.; Papenthien v. Coerper, 184 Wis. -, 198 N. W. 391; Carmichael v. Carmichael, 72 Mich. 76, 40 N.
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Owen, J.
The principal question of law involved upon this appeal may be stated thus: Where an agreement is entered into by two persons, and especially by husband and wife, to make mutual and reciprocal wills disposing of their separate estates pursuant to their mutual agreement, and where mutual and reciprocal wills are made' in accordance with that agreement, and where, after the death of one of the agreeing parties, the other takes under the will and accepts the benefits of said agreement, equity will enforce specific performance of said oral agreement and prevent the perpetration of fraud which would result from a breach of the agreement on the part of the one accepting the benefits thereof. Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216, 27 L. R. A. n. s. 509; Rastetter v. Hoenninger, 214 N. Y. 66, 108 N. E. 210; Morgan v. Sanborn, 225 N. Y. 454, 122 N. E. 696; Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265; Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998; Torgerson v. Hague, 34 N. Dak. 646, 159 N. W. 6; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347; Campbell v. Dunkelberger, 172 Iowa, 385, 153 N. W. 56; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173; Larrabee v. Porter (Tex.) 166 S. W. 395; [606]*606Stewart v. Todd, 190 Iowa, 283, 173 N. W. 619, 180 N. W. 146; Hermann v. Ludwig, 186 App. Div. 287, 174 N. Y. Supp. 469; 1 Redfield, Wills (4th ed.) 182, 183. It should be borne in mind that it is the contract and not the will that is irrevocable. The authorities generally hold that the will may be revoked, but the contract stands and will be enforced by equity if it be a valid contract and such enforcement is necessary for the prevention of fraud.
In this case it conclusively appears that Bridget and Garret Doyle made not only mutual and reciprocal but joint wills, and that, after the death of Garret, Bridget accepted and received the benefit of the provisions of his will made in her behalf.
None of the foregoing propositions, either of fact or law, are seriously contested by the appellants. They claim, however, that there is no evidence that the joint and mutual wills were made pursuant to an agreement between the parties. It does not appear that there was any written agreement between the parties prion to the execution of their wills, and it must be presumed that such agreement, if it existed, rested in parol. While Garret Doyle testified that such an agreement was discussed in the family, Elizabeth Doyle, who was a member of the family at the same time, testified to the contrary, and the trial court expressed the opinion that, even though their evidence be competent, the testimony of Garret was offset by that of Elizabeth, and the testimony of Garret contributed nothing to the establishment of such a parol agreement. The trial court held, however, that the provisions of the wills themselves, in the light of the facts and circumstances existing at the time the wills were made, conclusively indicated a prior agreement between the husband and wife to make such wills. The views of the trial judge with reference to this question are thus expressed in his opinion which we find in the record:
“The provisions of the joint will show that the makers thereof intended to make, as the will says, a ‘final’ dispo[607]*607sition of all their property. In that will the wife gave all her land to her son James and $2,000 to Elizabeth, and left nothing to either of-her other three children. The father gave only $600 to Elizabeth, who had taken care of him and given him her earnings, and that sum merely reimbursed her for .the $400 which she had paid out for one of her sisters, and placed in her hands a further sum of $200 which she was to pay for religious services for her parents. Her father gave $500 as a gift to each of his other daughters. He gave 110 acres to Garret and only forty acres to James. But that forty, together with the eighty which the mother gave to James by the joint will, was to give .him a farm of 120 acres, or ten acres more than his brother Garret was to get. The division of the entire property made by the joint will shows clearly to my mind that its makers had agr.eed how the distribution should be made, and that neither of them would have'disposed of his or her separate property just as the joint will does dispose of it if there had not been a contract or agreement between them to that effect. In the absence of such a contract it is quite improbable that the mother would have bequeathed in that will $2,000 to Elizabeth and nothing whatever to her other daughters; or that she would have devised her entire eighty acres of land to one son and none of it to her other son. If there had been no such contract, the father would certainly have made a more liberal provision for Elizabeth out of his own estate than he did make for her.; and he would not have then devised 110 acres to Garret and only forty acres to James, who attended to his father’s affairs and lived with him until he died.”
Courts have frequently held that a pre-existing contract to make mutual and reciprocal wills may be conclusively inferred from the provisions of the wills themselves (especially if they be joint) in the light of circumstances existing at the time the wills were executed. Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216; Hermann v. Ludwig, 186 App. Div. 287, 174 N. Y. Supp. 469; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347; Campbell v. Dunkelberger, 172 Iowa, 385, 153 N. W. 56; Larrabee v. Porter (Tex.) 166 S. W. 395.
[608]*608The case of Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265, relied upon by appellants, is not to the contrary. In that case the wills under consideration were not joint, and the lower court failed to find that the separate wills of the two sisters, made at about the same time, wherein each devised her property to the other, were made pursuant to a prior agreement. The appellate court simply refused to disturb this finding of the lower court. Commenting upon that case in Rastetter v. Hoenninger, 214 N. Y. 66, at p. 73 (108 N. E. 210), the same court said:
“In that case the trial court found from the wills themselves and the extrinsic circumstances that there was no contract, and this court held that there was. evidence to justify that finding, which was far from holding that even in that case there was no evidence to' sustain a contrary finding.”
We agree with the finding of the trial court in this respect. The fáct that these wills constitute but a single document, that they were executed at the same time, that each of the testators knew of the provisions made in the will of the other, that some of the children were provided for by one, and the others by the other, testator, conclusively indicates that the two wills resulted from a mutual agreement between the testators and that their provisions were in accordance with such prior agreement.
It seems scarcely necessary to say that even though the agreement rested in parol and was void under the statute of frauds so far as it related to the real estate, there has been such a part performance thereof that equity will enforce its complete performance. Sec. 2305, Stats.; Papenthien v. Coerper, 184 Wis. -, 198 N. W. 391; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173; Morgan v. Sanborn, 225 N. Y. 454, 122 N. E. 696.
Appellants suggest that the right to specific performance rests largely in the discretion of the court and will not he decreed when for any reason it would be inequitable. Stack v. Hickey, 151 Wis. 347, 138 N. W. 1011. They refer to [609]*609certain conduct on the part of James subsequent to the death of the father which they claim should deny him the favorable consideration of a court of equity. It is unnecessary to detail the circumstances upon which they rely for this contention. It is sufficient to say that they have received thorough consideration and we do not deem, them sufficient to justify a denial of specific performance of the contract.
Neither can we sustain the contention of the appellants that the plaintiff is without a sufficient interest to prosecute this action. His interest as legatee under the will of James and as assignee of the House of the Good Shepherd completely vests him with the same interest James would have had if living. That the action in favor of James survived, is not disputed. If so, it vested in the plaintiff and in the House of the Good Shepherd, as legatee under, his will, and the assignment of all its interest under the will of James by the House- of the Good Shepherd to the plaintiff operates to vest the plaintiff with the same right of action that James would have had if living.
We can see little difference in principle between this case and that of Allen v. Boomer, 82 Wis. 364, 52 N. W. 426, and the judgment entered herein is fully supported by the doctrine of that case.
B,y the Court. — Judgment affirmed.