I cannot concur in the conclusion of the court because I believe the result to be unjust, unreasonable, and unsupported by authority.

It is unjust because it deprives a faithful wife of the fruits of a fair contract after she had rendered full performance of the consideration. It sets the seal of judicial sanction upon a glaring fraud on the rights of a confiding spouse who trusted her husband and relied upon his solemn agreement.

It is unreasonable because it extends a statutory rule beyond its terms and applies it to a situation it was not enacted to reach or intended to govern. It defeats the purpose of untutored people who may desire in a simple way to accomplish a lawful and laudable object. It deprives a common contract of its sanction and tends to undermine domestic confidence. It perverts the statute designed to prevent frauds into an instrumentality of injustice. It submerges the essential aims of the law, and sacrifices substantial rights to vindicate a technical rule of evidence not properly applicable to the conditions that existed.

It is unsupported by authority because the authority *Page 238 of a case lies in what it decides as distinguished from what is declared, and no authority cited in the majority opinion dealt with a case like the one now presented. Moreover, the decisions in cases like the present one, involving the making and maintenance of mutual wills between husband and wife, pursuant to a fair contract freely made, are in favor of enforcing such contracts. Rightly understood, and as applied to the facts of this record, the authorities call for an affirmance of the judgment of the circuit court.

The oral contract was simply an agreement between a husband and wife to make and to maintain mutual wills for their mutual benefit. The wills were made, the contract was executed, and the transaction was then complete. This was not an action to enforce an oral contract to make a will when no will at all had been made. The action was in equity to subvert the fraudulent revocation of a will actually made under a fair contract upon a good consideration, and which had been fully and faithfully performed by the plaintiff. The oral contract is brought in collaterally as the source of the covenant not to revoke the will, which covenant supplants the conventional right of revocation.

The parol evidence is admissible on many grounds. It explains the connection and consideration of the two writings, which were executed coincidentally for a common purpose. It supplies the whole transaction of which the executed wills are merely integral parts. It is not the original agreement to make mutual wills that is involved. No land was sold by that agreement. The property was devised by the will and would have passed under it, but for the fraud of the husband. The oral agreement is invoked as an obstacle to a revocation of the husband's will. It is the compact not to revoke the wills that is vital now. To call that a sale of land is to misuse terms, and to misconceive legal distinctions. The will, if let alone, controls the transfer of the land. The covenant not to revoke merely preserved the will inviolate. The right to revoke a will is subject to the control of the person who owns such right, and when that person agrees, in consideration of a like agreement in his favor, to give up the right, the agreement is valid. Each will is the consideration for the other, and the entire consideration may be shown even if it results in the contradiction of a writing. The integral *Page 239 parts of the entire transaction are probably by parol to explain the writings.

The judgment of the circuit court is supported by ample authority. 40 Cyc. 1073; 28 Rawle C. L. p. 172, sec. 129; Schouler on Wills (5th Ed.) vol. 1, p. 577, sec. 485a; Underhill on the Law of Wills, vol. 1, p. 19, sec. 13; Alexander on Wills, vol. 1, sec. 85, sec. 87, sec. 88 and sec. 91, pp. 96-105; Breathitt v. Whittaker's Ex'rs, 8 B. Mon. 530; McGuire v. McGuire, 74 Ky. (11 Bush) 152; Skinner v. Rasche, 165 Ky. 108, 176 S.W. 942; Wright v. Wright, 215 Ky. 394, 285 S.W. 188; Anderson v. Anderson, 181 Iowa, 578, 164 N.W. 1042; Brown v. Webster,90 Neb. 591, 134 N.W. 185, 37 L.R.A. (N.S.) 1196; Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53; Stewart v. Todd,190 Iowa, 283, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272; Woods v. Dunn, 81 Or. 457, 159 P. 1158; Stevens v. Myers,91 Or. 114, 177 P. 37, 2 A.L.R. 1155; Carmichal. v. Carmichael,72 Mich. 76, 40 N.W. 173, 1 L.R.A. 596, 16 Mm. St. Rep. 528.

The case of Wright v. Wright is put aside on the ground that the property subjected to the trust was personalty. But the only property owned by the plaintiff in that case was land. And the decedent's land had been converted into personalty after the will was made. The situation in our state produced by the majority opinion is this: The spouse who makes a mutual will may enforce it against the other, if the estate is in the form of a personalty, even though the plaintiff's property was real estate, and the contract was oral. But if the surviving spouse owns personalty and the one that dies first leaves only land, the contract cannot be enforced, unless it is in writing. The consequence is that the contract is valid as to one party and invalid as to the other. It offers to the unscrupulous an opportunity to play a game of heads I win and tails you lose. The statute of frauds was not discussed in the Wright opinion, but the question lurked in the record, was discussed in the briefs, and must have been considered by the court. The case of Phillips v. Murphy, 186 Ky. 763, 218 S.W. 250, did not present a suit by the parties to the contract. It was an attempt by collateral heirs to fasten a trust on land, although the parties to the contract had sold and conveyed the land. The contract thus had been rescinded *Page 240 by mutual consent. In the case of Canada v. Ihmsen, 33 Wyo. 439,240 P. 927, 932, 43 A.L.R. 1010, strongly relied upon by the majority opinion, total strangers in blood had made mutual wills. It was held to partake of the character of a gambling contract and invalid, but the court observed:

"It may, however, be that certain arrangements of property, like that made among members of a family, should be put upon a somewhat different footing from those made between strangers in blood. In Lewis v. Lewis, 104 Kan. 269, 178 P. 421, the court says that such arrangements between husband and wife should be favored. That view is not dissimilar to the view adopted by the civil law. Alexander on Wills, sec. 70."

The court says that Mrs. Crawford gave up no money or property as a consideration for the contract, and that she still has her original holdings to use and to dispose of as she desires. But such is not the actual fact. From the execution of the wills till the death of her husband, Mrs. Crawford gave up the right to revoke her will and to dispose of her property as she pleased. If she had died first, Crawford would have gained, although he had secretly and fraudulently superseded his will by another one. After the event of his death it is entirely unfair, and wholly inaccurate, to say that his wife gave up nothing of value. Such a consideration is ample and measures up to all the definitions of that elusive conception. Brown v. Webster, supra; Wright v. Wright, supra; Brady v. Equitable Trust Co., 178 Ky. 693, 199 S.W. 1082; Sternberg Dredging Co. v. Bondurant's Ex'r, 223 Ky. 668, 4 S.W.2d 686; Farmers Bank v. Williams, 205 Ky. 261, 265 S.W. 761. And even in cases where an oral contract cannot be enforced, the law affords a remedy to the party who has performed his part of the bargain. If the measure of recovery is not fixed by any legal standard, the amount fixed by the oral contract is accepted as fair and just. Doty's Adm'rs v. Doty's Guardian, 118 Ky. 220,80 S.W. 803, 26 Ky. Law Rep. 63, 2 L.R.A. (N.S.) 713, 4 Ann. Cas. 1064; Boone v. Coe, 153 Ky. 233, 154 S.W. 900, 51 L.R.A. (N.S.) 907; Haralambo's Adm'r v. Christopher, 231 Ky. 550, 21 S.W.2d 983.

Furthermore, the principle of equity which forbids the statute of frauds to be invoked to consummate a *Page 241 fraud applies with full vigor, and should be employed to do justice in this case. 27 C. J. sec. 426, p. 340; Glazebrook v. Glazebrook's Ex'r, 227 Ky. 628, 13 S.W.2d 776; Fields v. Hoskins, 182 Ky. 446, 206 S.W. 763.

I am authorized to state that Judge Richardson concurs in the dissent.