Frauds, and by statute in the United States, the Common Law rule has been abrogated and wills can only be republished by a formal re-execution or by a properly executed codicil.* The Statute of Frauds applied only to wills of realty and did not affect testaments, while the State statutes in this country usually apply to both wills and testaments.†

The effect of a republication is to make the will thus re-executed of original validity as of the date of such republication.‡

The republication also extends the will to subjects which have come into existence since its date, cures all defects in execution, and revokes any prior will which is inconsistent with the instrument republished.§

Sec. 998. JOINT, DUPLICATE AND MUTUAL WILLS CONSIDERED.-"A joint will is, as the name implies, one single instrument made by two or more testators and, if properly executed by each, and intended to take effect upon the death of each, is as much entitled to probate upon the death of each as if each had made a separate will. But a joint will made

*Long v. Aldred, 3 Add. 48; Barker v. Bell, 46 Ala. 216; Stickney's Will, 161 N. Y. 42.

Miller v. Brown, 2 Hagg. 209; Jackson v. Holloway, 7 Johns. N. Y. 394.

Gilmore's Est., 154 Pa. St. 523; Schouler on Wills (2d ed.), Sec. 450; Brown v. Clark, 77 N. Y. 370.

SAm. & Eng. Encyc. of Law, Vol. 29, Pg. 335; Jones v. Shewmaker, 35 Ga. 151; In re Murefield's Will, 74 Ia. 479; Wallpole v. Cholmondeley, 7 Term Rep. 138. And see previous section 986 on codicils.

by two persons to take effect after the death of both will not be admitted to probate during the life of either.”*

Two persons may join in a will, by which the survivor shall take the property of the other. So a mutual will of husband and wife is valid, and is held to be the separate will of the one that dies first.†

Two persons owning property in severalty or in common, may unite in one will which may pass the interest of either or both, if either or both die without having

*Am. & Eng. Encyc. of Law (1st ed.), Vol. 29, Pg. 137; Betts v. Harper, 39 O. St. 641, 48 Am. Rep. 77; Wyche v. Clapp, 43 Tex. 544; Matter of Diez's Will, 50 N. Y. 88.

†Matter of Diez's Will, 50 N. Y. 88; Allen v. Allen, 28 Kan. 18; Est. of Mary Cawley, 136 Pa. St. 628. In the last case a brother and sister, Benjamin and Mary Cawley, joined in executing a paper in the following form: "I, B. C. should I die first, and I, M. C., should I be the first to die, give, devise and bequeath, and to the survivor of either of us," all of the estate of the decedent for life with a remainder over. Throughout the paper, except in the clause appointing an executor, the operative words were in the singular number. Benjamin died first, in 1887, and the instrument was probated as his will, and his money was turned over to Mary Cawley. In 1888 Mary Cawley died, and the will was again probated as her will. But soon after a later will of Mary Cawley was produced making a different disposition of her estate from that in the previous paper. It was held that the first instrument was not a contract in form or effect, and there being no joint devise it was not a joint will. It was properly a double will and must be construed and treated as a separate will of each maker. So that at the death of one, it was revocable by the other as to her separate property, and as the later will of Mary Cawley did revoke it, it was not applicable to her

estate.

revoked it. But they cannot fix the death of the survivor as the time for such a will to take effect, as this would delay the settlement of the estate of the one who died first.*

The fact that two persons join in executing a will of property belonging to one of them only does not vitiate it as to that one, and such will is neither a joint nor a mutual will, the additional signature being treated as surplusage. (Smith v. Holden, 58 Kan. 535.)

Where a mutual will is by its terms, to take effect only on a named contingency, it will not operate unless that contingency happens.

The testator may execute two wills, one of which shall operate as to a portion of his estate, and the other as to the residue. He may make two or more wills to take effect in the alternative; and he may execute his will in duplicate, but only one part will be admitted to probate and the revocation of one part with the intention of revoking the will, revokes both parts.

Sec. 999. CONTRACTS TO LEAVE PROPERTY BY WILL CONSIDERED.-Where a testator has made a contract in his life time, upon a valid consideration to dispose of his property in part or in whole, according to the terms of said contract, the ques

Walker v. Walker, 14 O. S. 157; Betts v. Harper, 39 O. S. 639, 48 Am. Rep. 477.

*Hershy v. Clark, 35 Ark. 17, 37 Am. Rep. 1; Bank v. Bliss, 67 Conn. 317. But if a mutual will is not offered for probate until the death of all executing it, it may then be admitted as the will of each and all such persons. Walker v. Walker, 14 0. S. 157; Betts v. Harper, 39 O. S. 639.

tion arises to what extent will such contract affect a will not according to the terms of it. Such contract to leave property by will is valid, but there must exist an actual contract, and a mere promise by the testator without consideration will not suffice nor will it be enough that the party claiming has rendered valuable services to the testator, merely upon the hope or expectation that he will obtain compensation through the testator's will. And where there is a contract, the party claiming must show that he has performed his part of the agreement.* Where the contract is to bequeath personal property, or to give a money legacy, the agreement is valid though not in writing. And if the will is not made as agreed, the party entitled can recover the value of the property or the sum agreed upon from the estate of the deceased, and neither a failure to make any will at all, nor the making of a will leaving all his property to others can defeat the claim.†

Where a contract is to devise real estate, or all of testator's estate both real and personal, such contract must be in writing, to satisfy the Statute of Frauds, in

*Wellington v. Apthorp, 145 Mass. 169; Moore v. Stephens, 97 Ind. 271; Emory v. Darling, 50 O. St. 160; Woods v. Evans, 113 Ill. 186, 86 Ga. 636.

Wellington v. Apthorp, 145 Mass. 169. A testator's will made in pursuance of such a contract is revocable the same as any other will, the remedy for the breach of a contract is an action for damages against the testator's estate, or a suit in equity to have the beneficiaries made trustees of the property to perform the contract. Sloniger v. Sloniger, 161 Ill. 270; Clark v. Cordry, 69 Mo. App. 6; Hudson v. Hudson, 87 Ga. 678.

that section which requires agreements for the sale of land to be in writing, or it can not be proved; unless there has been such part performance as will take the case out of the Statute of Frauds.*

Where there is a valid contract to leave property by will, and the will is not made as agreed, the party entitled may have compensation out of the estate of the deceased, or he may enforce specific performance of the agreement against the heirs or devisees or against subsequent grantees with notice.†

It is competent for a party to agree with one who would be his heir at law, in case he made no will, that he will make no will, by which the interest of the other as his heir at law, shall be affected. Where such a contract has been entered into upon sufficient consideration, and a will is made disposing of the property, the party entitled may recover from the estate as though there had been no will.‡

Where the contract was to compensate the claimant by a legacy not fixed in amount, but left to be determined by the testator, the claimant must be satisfied with whatever legacy is given him in the will. And in any case the claimant by accepting the provision of the will

*Alexander v. Alexander, 150 Mo. 579, 74 Wis. 176; Manning v. Pippen, 86 Ala. 357; Carmichael v. Carmichael, 72 Mich. 76.

†Jones v. Martin, 5 Ves. Jr. 266; Townsend v. Vanderwerker, 160 U. S. 171; Whiton v. Whiton, 179 Ill. 32, 76 Ill. App. 553; Carmichael v. Carmichael, 72 Mich. 76; Layson v. Davis, 17 Mont. 220; Kastell v. Hilman, 53 N. J. Eq. 49.

$87 Pa. St. 518, 30 Am. Rep. 383.