Miller, J.
Whatever doubt may once have existed on the point, it is now settled that an instrument jointly executed in due form as a will by two persons may be proved as the will of either.
(Matter of Diez,
50 N. Y. 88.) In that case a husband and wife jointly executed an instrument reciprocally devising their property to the survivor, and it was held that the instrument operated as the separate will of the one first dying. Upon that event the whole purpose of the instrument was accomplished. There is equal reason for holding that, in case of a conjoint will of two persons by which the survivor is given a life estate only with remainder over to a third person, the instrument may successively be proved upon the death of each as his individual will.
It is also too well settled to require the citation of authority that a person may make a valid agreement to make a particular testamentary disposition of his property, but see the opinion of Gray, J., in
Edson
v.
Parsons
(155 N. Y. 555, p. 567), the case mainly relied upon by the appellants." As a will an instrument is revokable at pleasure, but as a contract, if supported by an adequate consideration, it is enforceable in equity.
There are no facts disclosed in this case
aliunde
the
will itself to establish a contract, and the important question, therefore, is whether the instrument itself imports a contract, as a majority of the Appellate Division have held. We are not prepared to say that the mere fact of a conjoint, reciprocal testamentary disposition by two persons establishes a contract not to revoke, although that seems to have been Lord Camden’s ruling in
Dufour
v.
Pereira
(1 Dickens, 419; 2 Hargrave’s Juridical Arguments, 277, 304), a case often cited. Such wills are rare and, it may be, more nearly import a contract than separate mutual wills such as were involved in the leading case of
Lord Walpole
v.
Lord Orford
(3 Ves. Jr. 402), and in
Edson
v.
Parsons (supra).
In the case at bar the testators took the pains at the beginning and again at the end of the will to declare “ this and this only to be our last mutual and joint will and testament.” The repetition of that phrase
in lime verba
and especially of the words “ and this only” strongly tend to indicate an understanding that neither was to make a different testamentary disposition of his property in the future, for otherwise those significant words twice carefully used were meaningless. The language of the disposing clause imports the joint disposition of the collective property of both, not the independent disposition by each of his own. It is “ we,” not “ I, Franz, and I, Elizabetha,” give the income of “our,” not of “my,” real and personal property. They did not in express words give, devise and bequeath the remainder upon the death of the survivor, but they said “ after the death of the survivor of either of us, all our property both real and personal
shall be divided
in the manner following; ” a phrase which again strongly suggests, if it does not alone import, a contract. The testators, husband and wife, provided first for the survivor and ultimately for their children, in whose welfare they were both mutually concerned. Although no one of the foregoing considerations standing alone might be sufficient to establish a contract, the cumu
lative effect of all when viewed together is so persuasive as unexplained to prove that the joint will was made pursuant to an agreement. Whilst importing a contract the instrument is testamentary in character and as to the property of each speaks from his death. Each was at liberty during his lifetime to use his own as he saw fit, short of making a different testamentary disposition or a gift to defeat the purpose of the agreement, which was that upon his death each was to leave the property of which he was then possessed in the manner agreed upon. Very likely either during their joint lives might upon notice to the other have revoked; but, after the agreement had been executed by one dying without making a different testamentary disposition of his property and after the acceptance by the other of the benefits of the agreement, it became obligatory upon the latter and enforceable in equity upon his death.
Nothing to the contrary was decided in
Edson
v.
Parsons (supra)
which involved separate mutual wills. 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 have examined the cases in other jurisdictions cited by the appellants. Whilst expressions may be found in some which seem to support their contention, in none were the'facts the same, or the precise point involved, as in this case. On the other hand, there are decisions in other states, supported by cogent reasoning, which go as far as, or farther than, we are required to go in this case to sustain the ruling of the court below.
(Frazier
v.
Patterson,
243 Ill. 80;
Baker v. Syfritt,
147 Ia. 49;
Bower
v.
Daniel,
198 Mo. 289.)
However, the findings are not sufficient to support the judgment with respect to the real property deeded to the
defendant Schmidt and the evidence does not enable us to supply the necessary finding. 1ST either the findings nor the evidence disclose with certainty the source of the money with which said property was purchased, but the theory of the judgment in this respect is that upon the execution of the joint will each of the testators became a trustee of his own property and, whilst entitled to the income, was disabled from disposing of the corpus. As I have already said, we construe the agreement differently. What the parties disabled themselves from doing was the making of a different testamentary disposition after accepting the benefits of the agreement. Each, during his life, remained the absolute owner of his own with all the rights of an owner. Certainly nothing short of plain and express words to that effect should suffice in such a case to limit the use, or to impress a trust upon, the property of each during his own life. Of course, the agreement had to be carried out honestly and in good faith. The survivor could not after accepting the benefits of the agreement make a gift in the nature, or in lieu, of a testamentary disposition or to defeat the purpose of the agreement. Upon the death of the wife, the husband undoubtedly became trustee of her personal estate for the remaindermen. And if the identical money received from her can be traced to the purchase of the said real estate
(See Matter of Hicks,
170 N. Y. 195), equity will impress a trust upon it. In such case it will not be an answer to say that upon his death the husband left a larger personal estate than he received from his wife.
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Miller, J.
Whatever doubt may once have existed on the point, it is now settled that an instrument jointly executed in due form as a will by two persons may be proved as the will of either.
(Matter of Diez,
50 N. Y. 88.) In that case a husband and wife jointly executed an instrument reciprocally devising their property to the survivor, and it was held that the instrument operated as the separate will of the one first dying. Upon that event the whole purpose of the instrument was accomplished. There is equal reason for holding that, in case of a conjoint will of two persons by which the survivor is given a life estate only with remainder over to a third person, the instrument may successively be proved upon the death of each as his individual will.
It is also too well settled to require the citation of authority that a person may make a valid agreement to make a particular testamentary disposition of his property, but see the opinion of Gray, J., in
Edson
v.
Parsons
(155 N. Y. 555, p. 567), the case mainly relied upon by the appellants." As a will an instrument is revokable at pleasure, but as a contract, if supported by an adequate consideration, it is enforceable in equity.
There are no facts disclosed in this case
aliunde
the
will itself to establish a contract, and the important question, therefore, is whether the instrument itself imports a contract, as a majority of the Appellate Division have held. We are not prepared to say that the mere fact of a conjoint, reciprocal testamentary disposition by two persons establishes a contract not to revoke, although that seems to have been Lord Camden’s ruling in
Dufour
v.
Pereira
(1 Dickens, 419; 2 Hargrave’s Juridical Arguments, 277, 304), a case often cited. Such wills are rare and, it may be, more nearly import a contract than separate mutual wills such as were involved in the leading case of
Lord Walpole
v.
Lord Orford
(3 Ves. Jr. 402), and in
Edson
v.
Parsons (supra).
In the case at bar the testators took the pains at the beginning and again at the end of the will to declare “ this and this only to be our last mutual and joint will and testament.” The repetition of that phrase
in lime verba
and especially of the words “ and this only” strongly tend to indicate an understanding that neither was to make a different testamentary disposition of his property in the future, for otherwise those significant words twice carefully used were meaningless. The language of the disposing clause imports the joint disposition of the collective property of both, not the independent disposition by each of his own. It is “ we,” not “ I, Franz, and I, Elizabetha,” give the income of “our,” not of “my,” real and personal property. They did not in express words give, devise and bequeath the remainder upon the death of the survivor, but they said “ after the death of the survivor of either of us, all our property both real and personal
shall be divided
in the manner following; ” a phrase which again strongly suggests, if it does not alone import, a contract. The testators, husband and wife, provided first for the survivor and ultimately for their children, in whose welfare they were both mutually concerned. Although no one of the foregoing considerations standing alone might be sufficient to establish a contract, the cumu
lative effect of all when viewed together is so persuasive as unexplained to prove that the joint will was made pursuant to an agreement. Whilst importing a contract the instrument is testamentary in character and as to the property of each speaks from his death. Each was at liberty during his lifetime to use his own as he saw fit, short of making a different testamentary disposition or a gift to defeat the purpose of the agreement, which was that upon his death each was to leave the property of which he was then possessed in the manner agreed upon. Very likely either during their joint lives might upon notice to the other have revoked; but, after the agreement had been executed by one dying without making a different testamentary disposition of his property and after the acceptance by the other of the benefits of the agreement, it became obligatory upon the latter and enforceable in equity upon his death.
Nothing to the contrary was decided in
Edson
v.
Parsons (supra)
which involved separate mutual wills. 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 have examined the cases in other jurisdictions cited by the appellants. Whilst expressions may be found in some which seem to support their contention, in none were the'facts the same, or the precise point involved, as in this case. On the other hand, there are decisions in other states, supported by cogent reasoning, which go as far as, or farther than, we are required to go in this case to sustain the ruling of the court below.
(Frazier
v.
Patterson,
243 Ill. 80;
Baker v. Syfritt,
147 Ia. 49;
Bower
v.
Daniel,
198 Mo. 289.)
However, the findings are not sufficient to support the judgment with respect to the real property deeded to the
defendant Schmidt and the evidence does not enable us to supply the necessary finding. 1ST either the findings nor the evidence disclose with certainty the source of the money with which said property was purchased, but the theory of the judgment in this respect is that upon the execution of the joint will each of the testators became a trustee of his own property and, whilst entitled to the income, was disabled from disposing of the corpus. As I have already said, we construe the agreement differently. What the parties disabled themselves from doing was the making of a different testamentary disposition after accepting the benefits of the agreement. Each, during his life, remained the absolute owner of his own with all the rights of an owner. Certainly nothing short of plain and express words to that effect should suffice in such a case to limit the use, or to impress a trust upon, the property of each during his own life. Of course, the agreement had to be carried out honestly and in good faith. The survivor could not after accepting the benefits of the agreement make a gift in the nature, or in lieu, of a testamentary disposition or to defeat the purpose of the agreement. Upon the death of the wife, the husband undoubtedly became trustee of her personal estate for the remaindermen. And if the identical money received from her can be traced to the purchase of the said real estate
(See Matter of Hicks,
170 N. Y. 195), equity will impress a trust upon it. In such case it will not be an answer to say that upon his death the husband left a larger personal estate than he received from his wife. A trustee may not convert trust funds to his own or another’s use on the chance that upon his death his personal estate after the payment of his debts may be sufficient to reimburse the trust estate, but so long as the identical money can be traced it will retain its character as trust property, no matter what form it may take.
The deed to the defendant Schmidt was made two years before the death of the testator. She immediately
entered into and has remained in possession, and no attempt was made to show that the gift to her was made in contemplation of death or to defeat the purpose of the testamentary agreement between her father and mother. To the extent that said real estate was purchased with money belonging to the estate of Elizabetha Eastetter, or in case it be shown that it was given to the defendant Schmidt in contemplation of the donor’s death or to avoid in good faith the performance of the agreement made between him and Elizabetha, equity may impress a trust upon it. But as the case was not tried on that theory there must be a new trial.
The judgments should be reversed and new trial granted, with costs to abide the final award of costs.
Willard Bartlett, Ch. J., Hiscock, Collin, Cuddeback and Cardozo, JJ., concur; Werner, J., taking no part.
Judgments reversed, etc.