The opinion
FANNING, Justice
(concurring).
This case was assigned in regular order to Associate Justice DAVIS and he has filed a written opinion reaching the conclusion that the judgment of the trial court should be affirmed. Next Chief Justice CHADICK filed a written opinion wherein he reached the conclusion that the judgment of the trial court should be affirmed. After extensive study of this case it is also my conclusion that the judgment of the trial court should be affirmed and I file herewith this as my separate opinion setting out my views upon the cause as follows :
Appellants by their 6th point contend that recovery by appellees is barred by the statute of frauds since the bulk of the property of J. E. Sexton was real estate. Appellants by their points 1 through 5, challenge the judgment of the trial court on the grounds of (1) “no evidence”, (2) “insufficient evidence”, that (3) “the verdict and judgment are against the overwhelming weight and preponderance of the evidence”, (4) that “the submission of special issue No. 1 and the answer thereto are not supported by the clear and convincing, full and satisfactory evidence required by law”, and (S) that there was “no evidence to support the submission of special issue No. 2 nor the answer thereto”.
The wills of W. H. Sexton and J. E. Sexton have already been set out in the opinion of Justice DAVIS. The opinions of Chief Justice CHADICK and Associate Justice DAVIS also refer to the materially essential evidence in this cause and I deem it unnecessary to re-summarize the evidence.
Some of the leading Texas cases on mutual wills are as follows: Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395 , wr. ref.; Nye v. Bradford, 144 Tex. 618 , 193 S.W.2d 165 , 169 A.L.R. 1 ; Weidner v. Crowther, Tex., 301 S.W.2d 621 ; Murphy v. Slaton, 154 Tex. 35 , 273 S.W.2d 588 ; Hamilton v. Hamilton, 154 Tex. 511 , 280 S.W.2d 588 ; Pullen v. Russ, Tex.Civ.App., 226 S.W.2d 876 ; Sherman v. Goodson’s Heirs, Tex.Civ.App., 219 S.W. 839 , wr. ref.; Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366 , wr. ref.; McWhorter v. Humphreys, Tex.Civ.App., 161 S.W.2d 304 , wr. ref., w. o. m.; and Johnson v. Durst, Tex.Civ.App., 115 S.W.2d 1000 , wr. dis.
The case of Weidner v. Crowther, supra, ( 301 S.W.2d 621, 624 ) opinion by Justice Calvert, contains an excellent discussion of various phases of the law with respect to mutual wills, and therein it was stated:
“One party to a mutual will may not render it unenforceable after the death of the other party by declaring a revocation thereof and declining to take benefits under it. Death of one of the parties to a mutual will, or mutual wills, will put effective revocation thereof beyond the legal right and power of the survivor. As long ago as 1769 Lord Chancellor Camden announced the foregoing rule, by way of dictum, in Dufour v. Pereira, 1 Dickens 419. In that case the surviving widow probated a mutual will as the will of her deceased husband and took benefits under it. The question was whether it was in the power of the survivor to revoke the mutual will. On the power of revocation Lord Camden said: ‘ “But I cannot be of the opinion that either of them could, during their joint lives, do it secretly; or that, after the death of either, it could be done by the survivor by another will” ’. * * *
*542 “At the heart of a mutual will lies a contract of the parties. It would be manifestly unjust to permit the surviving party to the contract to disavow it and its obligations, as those obligations are incorporated in their will, after the other party has fully performed by abiding by it until his ability to revise it has been terminated by death.
* * * * * *
"We recognise that a will is ambulatory in character and that the surviving party to a mutual will may revoke it, but effective revocation will be prevented by a court of equity. In Murphy v. Slaton, 154 Tex. 35 , 273 S.W.2d 588, 593 , in dealing with the problem we said: ‘Annie E. Murphy (the survivor) technically could have revoked her will, but the beneficiaries under the joint (and mutual) will, as probated at the death of B. H. Murphy, would have had a cause of action to come into court with an equitable proceeding and receive their rights under such probated joint will.’ Some courts have said that the survivor and those claiming under the survivor would be estopped to assert a right to have the property which is disposed of by the will pass otherwise than according to its terms. Some have said that the property of the survivor would be impressed with a trust in favor of the beneficiaries under the will. Others have said, where there was an acceptance of benefits, that the survivor had 'elected’ to take under the will and had thereby ratified and confirmed it. One writer has suggested that the true basis on which the courts act is in requiring specific performance of the contract evidenced by the will. The Doctrinal Relationships of Concerted Wills and Contract, by W. F. Young, Jr., 29 T.L.R. 439. In any event, a court of equity will afford relief to one who seeks enforcement of the terms of n ■mutual wild, after the death of one of the parties thereto, when the terms of the will are not themselves inequitable." (Emphasis added.)
The case of Pullen v. Russ, Tex.Civ.App., 226 S.W.2d 876, 879 , wr. ref., n. r. e., involved the situation where spouses simultaneously executed separate wills containing the same provisions but such wills did not state that they were mutual and reciprocal and parol evidence was admitted to show that such wills were made pursuant to the spouses’ agreement to dispose of their property as provided in such wills. The appellate court in affirming the judgment of the trial court stated:
“We overrule appellees’ contention that the two wills are sufficient, by themselves, to show that they were executed pursuant to such a contract. Except for the seventh paragraph, which we shall discuss, the wills themselves show no more than the facts that they are similar and were executed at the same time. Except for the seventh paragraph, the wills do not respectively purport to dispose of the entire estate of both parties, but only that of the testator, nor does either will purport to dispose of the estate held by the survivor at his death. Nye v. Bradford, 144 Tex. 618 , 193 S.W.2d 165 , 169 A.L.R. 1 ; Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366 , writ ref.; Curtis v. Aycock, Tex.Civ.App., 179 S.W.2d 843 , writ ref., w. o. m. * * * The recital that the other spouse was executing a similar will did not make the wills contractual, because it was no more than the statement of a fact which, under the decided cases, was not enough to make the wills contractual.
“But the similarity of the wills and the fact of execution at the same time and place and before the same witnesses are facts which may be considered along with other evidence in determining whether or not the wills were executed pursuant to an agree *543 ment. Also, evidence of declarations of the testator (in this case Mr. Russ) is admissible to prove such fact. Nye v. Bradford, supra, and other authorities there cited, including particularly Plemmons v. Pemberton, 346 Mo. 45 , 139 S.W.2d 910 . McClure v. Bailey, Tex.Civ.App., 209 S.W.2d 671 , writ ref., n. r. e., cited by appellees cannot be accepted as authority for the proposition that declarations of the testator are incompetent to prove that the wills were executed pursuant to an agreement, in view of the pronouncement in Nye v. Bradford.
"We think that the parol testimony, coupled with the provisions of the wills, they being consistent with the theory that the wills zvere executed pursuant to an agreement between Mr. and Mrs. Russ to dispose of their property in the manner therein set out, is sufficient to support the verdict. (Emphasis added.) * * *
“As announced in the cases above cited and in many others, the proof must be clear and convincing in order to justify the invocation of the equitable remedies herein pursued. The jury were the judges of the credibility of the witnesses. Accepting their stories as true, as we must, and considering the pattern of the two wills and the recitals in them, we hold that the evidence is sufficient to meet the applicable test.”
The Supreme Court of Texas in the case of Nye v. Bradford, 144 Tex. 618 , 193 S.W.2d 165, 167 , stated:
“ * * * One who relies upon a will as a contract has the burden of proving that the will is contractual as well as testamentary in character. Proof may be made by the provisions of the will itself or by competent witnesses who testify to the agreement; and evidence as to declarations of the promisor, relations or conduct of the parties and other facts and circumstances, that tend to prove that an agreement was made, are admissible. Moore v. Moore, Tex.Civ.App., 198 S.W. 659 , application for writ of error refused; Williams v. Williams, 123 Va. 643 , 96 S.E. 749 ; Plemmons v. Pemberton, 346 Mo. 45 , 139 S.W.2d 910 ; Page on the Law of Wills, 3d Ed., vol. 4, pp. 927-933, §§ 1753, 1754; Alexander’s Commentaries on Wills, vol. 3, pp. 107, 108, § 92; 69 C.J. pp. 1303-1305, §§ 2729-2731; Note 102 A.L.R. pp. 491, 494, 495.” (Emphasis added.)
In Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366, 368 , wr. ref., it was stated:
“Evidence otherwise competent, either direct or circumstantial, was admissible to show whether said wills were executed pursuant to an agreement or understanding between the testators. * * * That oral con-
tracts to make mutual or reciprocal wills can be shown, and that such contracts can be enforced in Texas after one of the parties has died and the will has been probated, is now well settled.”
■ I do not find that the Statute of Frauds was specifically referred to in either the Pullen v. Russ, Wagnon v. Wagnon or Nye v. Bradford cases but the language used in the opinions holding parol evidence admissible in such cases is rather sweeping.
The case of Larrabee v. Porter, Tex. Civ.App., 166 S.W. 395, 402 , wr. ref., is a leading case on mutual wills and has been cited many times. It was cited by the Supreme Court of Texas in Nye v. Bradford, supra, and in Weidner v. Cowther, supra, although it was not specifically cited on the Statute of Frauds. In Larrabee v. Porter, supra, a question with reference to the Statute of Frauds was discussed as follows:
“Nor is the statute of frauds available to appellant, because, first, that defense was waived, never having been *544 invoked in any manner in the trial court. Besides, this will and the other instruments executed with it and as parts of the same transaction showed a contract in writing, or that they were the consummation of the previous parol agreement to make them; and the undisputed evidence shows such part performance as takes the case out of the statute.” (Emphasis added.)
The italicized portion from Larrabee v. Porter, supra, is dictum. Such dictum however supports the view that the statute of frauds is inapplicable to the situation in the case at bar. Also in this connection see 20-A, Tex.Jur., Sec. 136, pages 414-415, wherein it is stated:
“In General — -Fully Executed Agreement. — A fully executed agreement, as distinguished from one which is still executory, is not affected by the statute of frauds. Thus, where there has been complete performance of an agreement for the sale and purchase of land the legal relations of the parties are no longer affected by the statute.
“An oral contract for the sale of land is not unlawful, and when the contract has been executed, the statute of frauds cannot be invoked to undo that which has been consummated. Further, the execution of a point and mutual will and a joint and mutual deed hy a husband and wife in consummation of a previous oral agreement between them, removes the oral agreement from the operation of the statute of frauds. (Emphasis added.)
The case of Hooks v. Bridgewater, 111 Tex. 122 , 229 S.W. 1114 , 15 A.L.R. 216 , and other cases cited by appellants concerning oral contracts to make a will are not applicable to the situation here where written wills zvere actually executed in pursuance to and in essential conformity with an oral contract between W. H. Sexton and J. B. Sexton.
The oral contract between W. H. Sexton and J. E. Sexton to make mutual wills to themselves and providing certain provisions in favor of their nieces, appellees herein, including the agreement that at their deaths the property would go to their nieces, ap-pellees herein, was in essential conformity with the two written wills when considered in the light of the law applicable to lapsed bequests and devises falling within a general residuary clause as outlined in the case of Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295, 296 , wr. ref.
In the Kuehn v. Bremer case, supra, the deceased gave his wife all the personal property of which he should die seized and possessed of, and in addition, gave her a life estate in his real property with remainder to his nephew. In addition to certain specific sums of money, the testator then had the following residuary clause: “All the remainder of my estate, including all my real estate subject to said life estate to my wife — I give, devise and bequeath to my nephew, William A. Bremer, in fee simple, I desire and direct however that it shall be charged with a lien securing the payment by him of the bequest of the money hereinbefore made and specified by me.” The testator’s wife predeceased him and the heirs of the deceased claimed in the trial of the cause that due to the wife having predeceased him that everything left to her went by descent and distribution and the nephew was not entitled to all of the deceased’s property other than the specific money bequest. In rejecting this contention and in holding that all of the estate, both real and personal, passed to the nephew under the residuary clause, other than the specific money bequest, the Court stated as follows:
“The rule is recognized and is supported by the weight of authorities that in the absence of a statute upon the question, under a will containing a general residuary clause, a bequest of property, which, valid when made, fails for any reason, such as the death of the legatee prior to the death of the *545 testator, becomes a lapsed legacy and falls into the residuary clause and passes to the residuary legatee, unless a different intention is expressed in the will. Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148 , par. 2; 9 Texas Law Review, pp. 265 to 272. Yet the rule announced in Moss v. Helsley, 60 Tex. 426 , and Bittner v. Bittner, Tex.Com. App., 45 S.W.2d 148 , pars. 3 to 5, inclusive, is that the intention of the testator, when ascertained from the entire will, will control. It is also a well recognized rule that unless a contrary intention is plainly expressed or necessarily implied, it will be presumed from the mere fact of making the will, that the testator intended to dispose of his entire estate, and that he did not intend to die intestate as to the whole or any part of his property. * * *
“With the above rules in mind, we approach a determination of the question of whether it was the intention of August Spitzer that his personal property should become a part of the residuary of his estate in event his wife predeceased him and to pass to William A. Bremer under the provisions of section 5.
“All the words employed in the construction of the will were used for the one purpose of expressing August Spitzer’s plans for the distribution of his estate on his death, and they should be interpreted in the sense in which they were used, in order that the scheme he had in mind for the distribution of his estate may be enforced, it being lawful and consistent with public policy. Calvery v. Calvery, 122 Tex. 204 , 55 S.W.2d 527 ; Adams v. Maris, Tex.Com.App., 213 S.W. 622 , Haupt v. Michaelis, Tex.Com.App., 231 S.W. 706 ; Frame v. Whitaker, 120 Tex. 53 , 36 S.W.2d 149 ; Johnson v. Goldstein, Tex.Com.App., 215 S.W. 840 .
⅝ * * # ⅜ ⅜
“ * * * Those provisions are consistent with the contention that the entire estate of August Spitzer passed under the will and inconsistent with the contention that he died intestate as to his personal estate. * * *
“ * * * The use of the words ‘all,’ ‘my estate,’ and ‘including all my real estate’ are significant, and it is to be noted that he did not say ‘the remainder of my real estate,’ but said ‘all the remainder of my estate.’ ” (Emphasis added.)
W. H. Sexton and J. E. Sexton did not have any lineal descendants and there was no statute which would prevent the lapse of the devises and bequests made to W. H. Sexton by the will of J. E. Sexton since. W. H. Sexton died prior to J. E. Sexton.
As above stated W. H. Sexton died first without making any other wills than the will in question here and his property went in accordance with that will. I think it must be presumed under the facts in this case that J. E. Sexton knew on November 23, 1948, when he executed his will in question here, that if he outlived his brother W. H. Sexton (which event actually occurred) then the bequests and devises to his brother W. H. Sexton, set forth in paragraphs 2 and 3 of his will would lapse and that under the law (which was consistent with and in conformity with his oral agreement under the evidence in the record) due to the general residuary clause contained in paragraph 4 of his will, the lapsed devises and bequests to his brother W. H. Sexton, would pass to his four nieces, the appel-lees herein, which residuary clause would cover all the property he owned or might be interested in, at his death, in fee simple, • including both real and personal property.
While I have found no Texas case specifically holding whether or not the statute of frauds is applicable to a situation such as in the case at bar, it is my best judgment that in view of the dictum above quoted in the Larrabee v. Porter case, and in view of the above quoted language in the Nye v. Bradford, Wagnon v. Wagnon *546 and Pullen v. Russ cases, we should hold that the statute of frauds is not applicable to the situation here involved. Also as stated by Chief Justice CHADICK in his opinion this holding seems to be in the current of authority as pointed out in 169 A.L. R. page 43, Section 3. I concur in the overruling of appellants’ sixth point.
I have carefully reviewed the evidence in this cause and it is my considered opinion that there was evidence of probative force to support the findings of the jury to special issue No. 2 and to support the judgment in favor of appellees, that the evidence was sufficient to support the verdict and the judgment, and that the submission of Special Issue No. 1 and the answer thereto were supported by the clear and convincing, full and satisfactory evidence .required by law. In this connection see Pullen v. Russ, supra, ( 226 S.W.2d 876 ), and Plamilton v. Hamilton, 154 Tex. 511 , 280 S.W.2d 588 .
I have also carefully considered all of the evidence in the case in the manner and under the rules laid down by the Supreme Court of Texas in the case of In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660 , and have reached the conclusion that the verdict and judgment in favor of appellees herein is not so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly wrong and manifestly unjust.
I concur in the overruling of appellants’ points 1 through 5, inclusive.
It is my further view that appellants’ remaining points do not present error and I concur in overruling same.
I concur in the affirmance of the judgment of the trial court. Since all the members of the court agree that the judgment of the trial court should be affirmed, it follows that the judgment of the trial court is affirmed.