Mr. Justice Craig
delivered the opinion of the court:
The first question for consideration is, whether the agreement set out in the bill of complaint, between Lander Kirke Whiton and Walter Starr Whiton, the complainants, and their mother, Louise L. Whiton, is sufficiently certain and definite to be enforced in a court of equity. The agreement set up in the bill is, in substance, that Louise L. Whiton, the widow of Henry K. Whiton, having received more than she was entitled to receive in accordance with the will of her husband and the condition of the estate, desired the executors and trustees of the estate to pay her §12,000 more, which they refused to do unless the complainants, her two sons, and her daughter, the defendant, would consent' that an order on the trustees to that effect be entered in a certain case then pending in the circuit court of Cook county, wherein the said Lander Kirke Whiton was complainant and Bailey and Durham, the trustees, and others, were defendants; that Mrs. Whiton stated to complainant Walter Starr Whiton that if he would consent to the payment to her of §12,000 by said trustees she would make it all right with said Walter Starr Whiton in her will; that complainant Lander Kirke Whiton declined to consent to the entry of such order, or to give his authority for the payment of §12,000 to her, or any amount, because, as he stated to her, she had before that time threatened him that she would disinherit him in her will, and that he was satisfied she had received from the estate more than she was entitled to receive in accordance with the will and the condition of the estate; that thereupon said Louise L. stated to said complainants that she had no disposition to disinherit them, and in a conference had shortly thereafter between complainants and their mother, in the office of one of the attorneys, it was proposed to the said Louise L. that she make a will devising and bequeathing all the estate of which she might die possessed to her three children, viz., complainants and defendant, equally one-third, share and share alike; that then and there it was agreed by and between complainants and said Louise L. Whiton that complainants would each of them consent to the entry of such order, as aforesaid, in said cause then pending in the said circuit court, authorizing and directing said Bailey and Durham, as such executors, to pay over to said Louise L. $12,000 in securities and money, and upon condition that she should make, execute and deliver her will devising and bequeathing all of the property of which she might die possessed to complainants and defendant, equally, share and share alike; that on the 5th day of June, 1895, in pursuance of the said agreement last mentioned, said Louise L. Whiton made, executed, delivered and published her last will and testament, which was then and there witnessed by two subscribing witnesses, a copy of which .said will was set out in the bill. It was also set out as a part of the contract that it was agreed that the attorney should deposit said will with the Northern Trust Company of Chicago, which he after-wards did; that the order of court was entered the following day, and Mrs. Whiton was afterwards paid the sum of $12,000 in- money and securities from the estate; that the will was deposited with the Northern Trust Company by John J. Knickerbocker, as had been agreed.
The testimony of John J. Knickerbocker, who prepared the will and was present when it was executed and when the agreement was made, stands uncontradicted, and clearly establishes the making of the agreement set out in the bill. He testified that Louise L. Whiton came to his office seeking a solicitor; that he examined certain files and papers for her in the estate of Henry K. Whiton, and attended to the business of the trustees, Bailey and Durham, on difieren! occasions; that he had many interviews with Mrs. Whiton at his office; that the acts and services performed were in the course of and as part of his employment as her" solicitor; that he spent a great many hours in interviews with Mrs. Whiton; that he dictated the will of Mrs. Whiton and drafted the same. He was then asked: “Were you present at any interview between Louise L. Whiton and the complainants with reference.to the matter of Mrs. Whiton obtaining some additional money from the trustees of the estate of her husband?” and answered: “I was on one occasion, at my office; yes, more than twice. The first interview was some time in June or late in May, 1895. There were present at some of the interviews her sons and yourself. Her son Starr was at all the interviews. At the interview in my office Mrs. Whiton said to the complainants she wanted more money from the trustees of the estate of Henry K. Whiton. She said she wanted Starr, one of her sons, to help her get money from the trustees. Starr Whiton said he wanted to see Kirke, his brother. Mrs. Whiton asked Starr to go and see his brother, and bring his brother, Kirke, to see his mother. Subsequently,, and on the same day and a short time afterwards, when Starr was there with Kirke and their mother, she said to both of them that she wanted their aid—their consent—to take more money .out of the hands of the trustees. That is the substance of what was said in this interview. On consultation they refused. They said they would not do it. They refused to do it, and thereupon our friend here, Col. Cooper,—I am not able to reproduce his exact language,—he said some very harsh things to Kirke, and Kirke left the office and the interview ceased and the boys both went away. That is the first conversation— at the first interview—at which they were all present. There were two interviews between myself, Mrs. Whiton and Starr Whiton and Mr. Cooper.” Witness was then asked to state the next conversation when the mother and the two sons and witness were present, and said: “I have no recollection of Kirke Whiton coming to my office again for several days, but the succeeding day and the day after it,—indeed, for a period of about ten days or more,—Mrs. Whiton, without exception, was at my office every day except on Sunday, and nearly every day that she was there she had Starr there. I remember one conversation in which she said to him that he was her boy and he ought to do what she asked him to do, and it was his duty to do it. The next conversation at which they were all present was in the office of Col. Cooper. We were assembled at Col. Cooper’s office, and there were there, the Colonel, Mrs. Whiton, the two boys, Starr and Kirke, and myself, and I had dictated this will for her. The first that her attention was called to it was, I called them all in the room and the will was dictated and written, and I told her that she wanted—
The court: “In their presence?
A. “Yes.
Q. “Was the will dictated in their presence?
A. “No, the will was dictated in the Colonel’s private room. There was nobody but Miss Burnham, the stenographer, and myself; and I told Mrs. Whiton that there was trouble between her and her sons, and she wanted to know what it was. She asked me what it was. I said to her that they said that she had threatened their disinheritance.
The court: “This occurred in their presence, yon say, and hearing?
A. “In their presence and hearing. They were both there. She said, Well,’she said, 'I didn’t mean that.’
The court: “Did not what?
A. “She says: ‘Well, I did not mean that.’ And Kirke says: ‘Well, mother, you know you said it, and Starr and myself have not felt very well about it since.’ And Mrs. Whiton said: ‘Well, then, you are going to refuse to let me have any more money from the trustees?’ And Kirke says: ‘We have not said that yet, mother, -but we don’t like what you said about us and our father’s estate, and we should want to know that that would not happen.’
Mr. Cooper: “What would not happen?
A. “The disinheritance—-that was what we were talking about; and Mrs. Whiton asked me how that could be fixed,.—how it could be arranged,—and I told her, in the presence of the boys, what I had told them in a conversation with them at Kirke’s office before this interview the same day and at Col. Cooper’s, and I repeated the conversation in their presence and hearing of what I had said to the boys and what the boys had said to me. I said to her: ‘Mrs. Whiton, I have told these boys that I do not think that you contemplate anything of that kind or that you contemplate their disinheritance. I told them that I was so sure of it that I felt satisfied that if they would come over here and consent to an order for your taking a certain amount out of the estate,—such an amount out of the estate, by order of court, as you ask for,—that you would put it in such a way that they could not be disinherited,—that you would make your will and give them their share when you died.’ Mrs. Whiton said to me, in their presence—
The court: “She replied in their presence?
A. “Yes, she replied in their presence: T like that, Mr. Knickerbocker, of your saying how I shall will my property or tell me what I shall do with it.’ I told her I did not purpose to do that—I had no right to do it, but that it was a family affair. They were all agreed that they wanted to close the estate. They wanted to get it out of the hands of the trustees to save expenses, and that if they were a united family it did not seem to me there was much difference who held the property and the boys would feel better about it. They would be entirely satisfied and contented to let her take what she asked for—the §12,000—provided she would make her will and divide it in equal parts between the brothers and the sister,—the three children. ‘Now,’ I says, ‘because I have drafted this will and it is here you do not have to execute it; but this trouble is with your children, and it may be the shortest way to get peace in the family and to get what you want, if you intend that they shall have that share in your estate. ’ Well, she said she liked that. She supposed she better do it, as she wanted to get money or securities, and she did do it.
Mr. Cooper: “Did what?
A. “Signed the will.
The court: “Right there in their presence?
A. “Yes, sir, and in the presence of some other people,—Mr. Cooper, myself, Mr. Lancaster, Miss Burnham, the stenographer, and I think John A. Henry was there. That done,—I think it was late in the afternoon,—that done, concluded the exercises of that day, excepting some things Mrs. Whiton said.”
The witness was shown the order entered on the 6th of June in the chancery case No. 116,473, and said to complainants’ counsel: “That was dictated in your office. I think you did it on the day and date on which the will was prepared. ■ ■
Q. “At the time the will Avas prepared and executed?
A. “Yes, sir; that was part of the transaction.”
The order was introduced in evidence. The witness said the signatures were made as certified; does not remember whether document was made before-or after the execution of Mrs. Whiton’s will, but it was made at the same time.
Q. “I will ask you whether there was any conversation between the parties there present when the will was executed,—I mean between Mrs. Whiton and the complainants,—as to what should be done with the will?
A. “That it be delivered by me to the Northern Trust Company. ”
Witness was asked what, if anything, he did with the will pursuant to instructions received from complainants and their mother, and said: “I put it in my vault and afterwards delivered it to the Northern Trust Company.
Q. “You delivered it personally?
A. “Personally, myself. The will was enclosed in an envelope. It was an executed will, sealed up, and the name of the testatrix was written across the envelope at rig'ht angles.”
The original will being lost or destroyed, a copy from the stenographer’s notes was introduced in evidence, and proof of the execution by Mrs. Louise L. Whiton of the original will was made by E. G. Lancaster and J. J. Knickerbocker, the two subscribing witnesses, and by Miss Burnham, the stenographer, who took a dictation from Mr. Knickerbocker of the will for Mrs. Whiton and wrote it out for him and made the copy from the original notes, and who saw Mrs. Whiton sign the will. This leaves no doubt as to the execution of the will, and that the will devised all of Mrs. Whiton’s estate to the complainants and the defendant, Louise Whiton, in equal parts, share and share alike. The foregoing testimony and the will establish the making of the agreement set out in the bill by positive and clear evidence, and the evidence makes a case which a court of equity may properly enforce.
Second—Is an agreement based upon a valuable consideration to make a particular disposition of property by will binding upon the person making it? In Parsons on Contracts (vol. 3, p. 407,) it is said: “It is obvious that an agreement to make a certain disposition of property by last will is one which, strictly speaking, is not capable of a specific execution,—not in the party’s lifetime,— because any testamentary instrument is by its nature revocable, and after his death it is no longer possible to make his last will. Yet it has been held to be within the jurisdiction of equity to do what is equivalent to a specific performance of such an agreement by requiring those upon whom the legal title has descended to convey the property in accordance with its terms, and the court will not allow this post mortem remedy to be defeated by any devise or conveyance in the lifetime inconsistent with the agreement, unless, indeed, rights of purchasers deserving of protection should intervene. But if one contracts to devise, and during his life conveys the land away, equity sometimes requires his representatives to make full compensation. As a general rule it may be said that where a specific performance would be decreed as between original parties to a contract it will be decreed as between all who claim under them, unless intervening equities would make the decree operate injustice towards these parties.” See, also, Fortescue v. Hennah, 19 Ves. Jr. 67; Gregor v. Kemp, 3 Swanst. 404; Jones v. Martin, 5 Ves. 265; Randall v. Willis, 5 id. 262; Logan v. Weinholt, 7 Bligh, 57; Johnson v. Hubbell, 10 N. J. Eq. 332; VanDuyne v. Vreeland, 12 id. 142; Parsell v. Stryker, 41 N. Y. 480.
Johnson v. Hubbell, 10 N. J. Eq. (2 Stockton,) 332, where a bill was filed to enforce the specific performance of an agreement to make a will, is an interesting case and one in point here. In the decision of the case it is among other things said: “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 conveyanee 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. Executors of Rivers, 3 Dessaus. 195, the court, in sustaining the propriety of a court of equity’s 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. * * * This agreement, then, made between the complainant and his father was a legal agreement, and this court should decree its execution, if, in the exercise of its legal discretion, it can do it without violating' any principle of equity or doing injustice to any third party who may be innocently involved in the transaction. Generally, the agreement may be enforced without any embarrassment. If A enters into an agreement, for which he receives a g'ood consideration, with B, to give him his property by will, and in violation of his agreement he gives it by his will to C, the court will declare C a trustee for B. In doing this it does C no wrong. A having undertaken to make G a voluntary gift of that which he had no right, in law, so to dispose of, the court does C no injustice, and violates none of his rights by declaring him a mere trustee. To permit C to hold the property as against B, the court would sanction the fraud which A had committed in disposing of the property in violation of his agreement. The fraud of the father was in not making his will and dividing his estate between his children. It does not divest the breach or non-fulfillment of the contract of its fraudulent character because the fraud was not meditated at the time the agreement was made. The fraud of the daughter consists in retaining her brother’s land without consideration, which is against good conscience. It is to protect the complainant against this fraud that this mode of relief is proper. That Mrs. Hubbell made no agreement or promise with her brother that she would be responsible that the contract should be carried out does not make it the less unconscionable that she should hold her brother’s land, conveyed to her under a family compact made for their mutual benefit, which has failed of execution through default of neither of them but of a third party. She accepted the land under the family arrangement; that arrangement has fallen through. The position of the complainant is of some consideration with the court. He was one of the heirs-at-law of Robert G. Johnson. He is not only a sufferer by the father’s violation of the agreement but without cause has been disinherited, and that which in law and justice belonged to him by his double right as heir and by contract, is all, or nearly all, bestowed upon his sister and her children. Under such circumstances to permit the sister to enjoy, without any consideration, a part of that inheritance which the complainant derived from his mother is unjust, and a court of equity ought to prevent it.” The court, on account of the rights in the property of innocent third parties other than the sister, held that it could not decree a specific performance of the father’s agreement, but that the son was entitled to a decree against his sister for the part of their mother’s estate conveyed by the son to his sister. VanDuyne v. Vreeland, 12 N. J. Eq. 142; Gupton v. Gupton, 47 Mo. 37; Wright v. Tinsley, 30 id. 389; Parsell v. Stryker, 41 N. Y. 480; Carmichael v. Carmichael, 72 Mich. 76.
In Dicken v. McKinley, 163 Ill. 318, this court, while holding, under the evidence in that particular case, that the contract could not be enforced because of the Statute of Frauds, recognized the principle involved in the case at bar,—that a person may make a valid agreement to dispose of his property by will,—in these words (p. 322): “The weight of authority is in favor of the position that a man may make a valid agreement to dispose of his property in a particular way by will, and that such contract may be enforced in equity, after his decease, against his heirs, devisees or personal representatives.—22 Am. & Eng. Ency. of Law, p. 974, and cases cited in note 2; Schouler on Wills,—2d ed.—sec. 454; Waterman on Specific Per. of Contracts, sec. 41; Fry on Specific Per.— 3d ed.—sec. 223; Weingaertner v. Pabst, 115 Ill. 412.”
The agreement between the complainants and their mother, Louise L. Whiton, being for a valuable consideration moving from the complainants to her, and the will being executed, was binding upon her.
The contention of plaintiff in error that the $12,000 allowed by the court was due to Mrs. Whiton from the estate is not sustained by the evidence. She had received more than her share of the estate under the provisions of the will, and the trustees refused to pay her any more without an order of the circuit court and the consent of the complainants and the defendant thereto. Had she been entitled to the $12,000 by virtue of the terms of the will she would hardly have importuned the trustees to let her have that amount, neither would she have asked complainants’ consent to the court order, but her attorney would have compelled the trustees to pay what was actually due her. No evidence was introduced to show that she was entitled to the amount claimed on the trial. An examination of the record shows that Mrs. Whiton was not entitled to receive the $12,000 from the estate, but that she received $8000 of complainants in consideration of the agreement to execute the will which was executed and deposited with the Northern Trust Company.
Third—The gift of Mrs. Whiton to her daughter, the defendant, was made in fraud of the rights of complainants, and cannot be regarded as an absolute disposition of her property, but was testamentary in character. An examination of the evidence impresses us that it was the intention of Mrs. Whiton by this attempted gift to prevent her estate becoming subject to this agreement between herself and the complainants and was intended to defeat it. It was a fraud on complainants, and must be regarded as testamentary for the purpose of defeating the fraud. In Logan v. Weinholt, 7 Bligh, 57, the lord chancellor, after quoting from Jones v. Martin, 8 Brown’s Cas. 242, says: “His honor here lays down the principle to which I have adverted, that if, in substance and effect, the conveyance defeats or defrauds the obligation entered into, and is done with that object, having that tendency, producing that effect, though not in form testamentary, it is to be dealt with as if, in fact, it were testamentary, for the purpose of protecting the right, for the purpose of defeating the fraud, for the purpose of securing to the party, under the agreement, the right to that part of the estate to which he is entitled.” The authorities seem to hold that any disposition of property subject to such an agreement, made by a person during life for the purpose of effecting a testamentary disposal of the same, cannot defeat the agreement.
The case of Gregor v. Kemp, 3 Swanst. 404, where the donor in her lifetime made a gift “out and out,” without any interest being retained therein, was similar to the case at bar. The facts were as follows: Joan Kemp, on the marriage of her eldest son with the plaintiff, entered into a covenant, in consequence of the marriage of her son, that she would, by her last will or otherwise, give, grant or devise to her son, John Kemp, one-fourth part of all the real and personal estate she should be seized of or entitled to at the time of her death. The marriage took place and a daughter was born to the son and wife. The plaintiff and both son and granddaughter being in a bad state of health, the mother, Joan, often declared her apprehension that neither of them would long survive her and was afraid a large portion of her estate would go into the hands of strangers. Accordingly, three days before her death the mother, Joan, made a gift to other relatives of £1000. The plaintiff filed a bill against such beneficiaries and their trustee to have an account taken of the estate of Joan Kemp and to secure for herself the full fourth part of the estate, insisting that the disposition was in fraud of the marriage articles. The defendants contended that Joan Kemp had the right to give her estate away. On page 406 the report reads: “The lord chancellor was of opinion that the disposition was in fraud of the articles. He agreed that, notwithstanding the articles, Mrs. Kemp was* not restrained from disposing of her estate in any way in her lifetime and had a full power over it, but with this single exception, viz.: she was restrained from making a distribution on purpose to defeat the covenant, which it is here fully proved she did, for she was unwilling her estate should go to strangers, and the disposition is a plain fraud. It was the intent of the articles that it should be for strangers, for it is to him, his executors, etc,; therefore, if he should think proper to make his wife executrix, as he did, it was designed for her benefit. But supposing this disposition had not been with this avowed design to evade the articles, yet he should have thought it, as it is circumstanced, a donatio mortis causa, and not good, for otherwise articles of this nature will signify nothing" if they are thus eluded by a disposition a day or two before death. And in this case she puts the greatest part of the money into the hands of the trustees named in her last will, so that it seems to have the air of a will. The plaintiff, therefore, must have the full fourth part of the estate after debts paid; but this disposition is good to affect the remaining three parts of her estate, and must be satisfied out of it to the several defendants.”
Here the facts and circumstances of the entire transaction connected with this gift show that Louise L. Whiton deliberately planned to defeat the agreement with her sons. She executed the will, and it was placed, by-agreement, in the custody of the Northern Trust Company. She shortly afterwards withdrew it from the trust company without the knowledge of the complainants. She executed a second will November 21, 1895, in which she gave complainants each §1000, and all the rest, residue and remainder of her estate she bequeathed to her daughter, the defendant. Afterwards, while in Vienna, Austria, in October, 1896, she carried out what the daughter testifies was always her expressed intention to leave her property to her, and she gave to her daughter all hex-money and Securities,—everything she had in the world. She retained nothing. They left Vienna the latter part of November and returned to Chicago, and her mother died the 27th of December. It was admitted no consideration was paid by the defendant, and from the time of this gift the daughter testifies she paid all the expenses of her mother. Mrs. Whiton was advanced in years and in a foreign, country without any way of earning a living", and yet she gave away all her property, amounting to about §40,000, and became entirely dependent on the defendant. The latter says there is no evidence of an agreement between her mother and herself that she should maintain and support her mother. If there is no express agreement to that effect an implied contract to support her during life may be inferred from the facts and circumstances in evidence. It is apparent that the real object and design of transferring all her property was to defeat the agreement with complainants, and in view of the nature and character of the transfer, and the circumstances under which it was made, it was testamentary in character.
It is, however, claimed that the contract is within the Statute of Frauds, and hence cannot be enforced. There are several answers to this position.' In the first place, no real estate was involved. The entire estate of Mrs. Whiton when the agreement was made and when she died consisted of personal property, notes, mortgages, bonds and stocks. In the second place, the contract was manifested by a writing. The defendants in error agreed to give an order on the trustees for the payment to Mrs. Whiton of $12,000. This paper was signed by them and delivered to her. In consideration of the order Mrs. Whiton agreed to make a will devising her entire estate to defendants in error and her daughter. The will was prepared and executed by her in the presence of two or more witnesses. Thus the contract between the parties was reduced to writing and manifested by a writing. The fact that the will was subsequently destroyed does not affect the question under consideration. (Keith v. Miller, 174 Ill. 64.) We do not, therefore, think the Statute of Frauds can be relied upon to prevent the enforcement of the agreement. It is true that the matter of a specific performance of a contract, even when satisfactorily proven, is not always a matter of right in the party seeking specific performance but a matter of sound discretion in the court, which will grant or withhold relief according to the circumstances in each particular case. But here the judgment of the Appellate Court directing the circuit court to decree the execution of this contract in accordance with the prayer of the bill was fully warranted by the evidence introduced before the chancellor. The defendant still holds the securities, a portion of which are the identical securities transferred by the trustees to her mother, Louise L. Whiton, under the agreement sought to be enforced by complainants, and no injustice will be done, as the rights of innocent parties are not involved.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.