An action for breach of contract to make a will is not maintainable during the posed testator's life ; Warden v. Hinds, 163 Fed. 201, 90 C. C. A. 449, 25 L. R. A. (N. S.) 529 ; and mutual wills between husband and wife do not raise a contractual relation ; Mullen v. Johnson, 157 Ala. 262, 47 South. 584. A contract not to contest a will has been upheld ; Grochowski v. Grochowski, 77 Neb. 506, 109 N. W. 742, 13 L. R. A. (N. S.) 484, and 15 Ann. Cas. 300.
Specific performance may be enforced of an agreement to give a legacy where the con sideration had been accepted; Bush v. Whit aker, 45 Misc. 74, 91 N. Y. Supp. 616 ; or where the subject matter was real estate; Emery v. Darling, 50 Ohio St. 160, 33 N. E. 715; or if it is both real and personal; Schutt v. Society, 41 N. J. Eq. 115, 3 Atl. 398, where equity assumed jurisdiction because realty was involved and then settled the whole case; but where personal property alone was involved, and the defendant who had furnished the decedent with maintenance on condition that the property should go to him (it being a sum of money), and he took possession of it, the administrator could not recover ; Koslowski v. Newman, 74 Neb. 704, 105 N. W. 295, 3 L. R. A. (N. S.) 704. In commenting on this case, it is suggested that the doctrine that the defendant was the eq uitable owner with the right to specific per formance, is not sustained by authority, as the citations are either dicta or cases involv ing both realty and personalty ; but the case may be supported. on the ground of avoiding circuity of action ; 19 Harv. L. Rev. 473. Such a contract was not sustained in Owens v. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369, where the decision was put upon the ground of hardship to the wife, who had married after the contract was made and in ignorance of it. There is an adequate remedy at law on such a contract; Brady v.
Smith, 8 Misc. 465, 28 N. Y. Supp. 776 ; Rhodes v. Stone, 63 Hun 624, 17 N. Y. Supp. 561; contra, Shakespeare v. Markham, 72 N. Y. 400; the statute of limitations does not begin to run until the death of the testator ; Goodloe v. Goodloe, 116 Tenn. 252, 92 S. W. 767, 6 L. R. A. (N. S.) 703, and note, 8. Ann. Cas. 112.
If a contract to dispose of property by will affects real estate, it must be in writing under the statute of frauds ; Goodloe v. Goodloe, 116 Tenn. 252, 92 S. W. 767, 6 L. R. A. (N. S.) 703, 8 Ann. Cas. 112 ; Hale v. Hale, 90 Va. 728, 19 S. E. 739. A promise to, a tes tator in extremis by a residuary legatee to pay an intended legacy, is binding on him, but whether it binds the others interested was undecided; Yearance v. Powell, 55 N. J. Eq. 577, 37 Atl. 735.
An agreement to defeat probate by com pensating the executor and trustee for what he would have received, is contrary to public policy and void; Cochran v Zachery, 137 Ia. 585, 115 N. W. 486, 16 L. R. A. (N. S.) 235 and note, 126 Am. St. Rep. 307, 15 Ann. Cas. 297; and so is a contract by an attorney to do it; id. But a contract between next of kin of a decedent to divide the estate.is not an agreement to defeat probate of will, and the •promise of one who intends in good faith to contest not to do so is a good considera tion for a promise of a share in the estate; Blount v. Wheeler, 199 Mass. 330, 85 N. E. 477, 17 L. R. A. (N. S.) 1036.
A joint will executed by two brothers rev ocable at the will of either is valid ; Hill v. Harding, 92 Ky. 76, 17 S. W. 199, 437. The joint will of two persons devising to a third person land, parts of which belong to each, may be proved as the separate will of one as to his part, on his death while the other is still living ; In re Davis' Will, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289. 58 Am. St. Rep. 771. It has been said that no such testa mentary paper is known to the common law ; Walker v. Walker, 14 Ohio St. 157, 82 Am. Dec. 474 ; but it is in fact the will of each as to his property and revocable by either party without notice to the other, remaining in such case as the will of the person who does not revoke; 11 Harv. L. Rev. 67. See, as to joint wills, 20 Harv. L. Rev. 315.
In order to make the will of a married wo man valid as a disposition of property which she has no power to dispose of without her husband's assent, it is not necessary that his assent should be given during her life; it is sufficient if given after her death ; [1901] 1 Ch. Div. 424.