¶1I concur, and in addition I think that no will was made by either of the sisters which was at all a compliance with the contract as sworn to.
¶2I concur with Mr. Justice Ruhsey. The result of the judgment appealed from is that the court has made a will for the testatrix by which all of her property is disposed of after her death for the benefit of certain persons, although a will making such a disposition of her property was never signed or executed as required by statute ; and this result is effected because it is alleged that the deceased made an agreement many years ago to make a will dividing her property among certain specified persons, although none of the legatees and devisees who seek to enforce this alleged oral agreement were parties to the agreement or paid any of the consideration lipón which it was based. Such á result would, it seems to me, violate the express provisions of the statute which prescribe the formalities necessary to the execution of a valid will of real or personal property and open the door to the fraud which it was the special object of the statute prescribing such formalities to prevent. By the statute in relation to the execution of wills (2 R. S. 03, § 40) it is provided : “ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator in the presence of each of ■the attesting witnesses, or shall be acknowledged by him' to have been so made to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign, his name as a witness, at the end of the will, at the request of the testator.” And in this State it has been uniformly held that these requirements must be strictly complied with before a will can be admitted to probate or be effectual to dispose of the property of a testator. It is unnecessary to cite authorities to sustain this proposition, but the last expression of the Court of Appeals on the subject is Matter of Andrews (162 N. Y. 1). It is there said: “ It has long been the settled policy of this state to require certain formalities to be observed in the execution of wills; these provisions are exceedingly simple and calculated to prevent frauds and uncertainty in the testamentary dispositions of property.” It was there determined that *161the intention of the testator is not to be considered when construing this statute, but that of the Legislature; that the question is not what did the testator intend to do, but what he did in the light, of the statute; and in that case, although it was plainly established that the testator intended to make a last will and testament and reduced his intention to writing and signed it in the presence of two witnesses, who signed the same at his request, it was held that because the testator’s name was not subscribed at the end of the will it could not be admitted to probate as the testator’s will. The statute thus requiring the observance of these formalities, and the court having by a uniform course of decisions established the principle that those formalities must be strictly followed, it would certainly seem a necessary conclusion that a mere verbal agreement to make a will, no matter what the consideration, could no more be enforced than could an oral will.
¶3In this case, the testatrix never made a will in pursuance of this alleged oral agreement. Ho such will was ever executed by her with or without the formalities required by the statute; and no will, therefore, exists which was valid under the statute, or which could be admitted to probate to efEect such a disposition of the testatrix’s property. In the absence of such a formally executed will, no court has the power to make a will for the testatrix and thus dispose of her property after her death as though she had made a will as prescribed by the statute. In all of the cases which have enforced these mutual agreements to make a will of which I have any knowledge, a will executed with the formalities required by law had been actually executed in pursuance of the agreement, and it was that will that the judgment enforced as against a will subsequently made and which, but for the agreement, would have revoked the prior will made in pursuance of the agreement. This consideration seems to me to bar the' enforcement by the court of such an oral executory agreement as was alleged in this case where no will was actually executed in pursuance of its provisions.
¶4I concur, therefore, in the reversal of this judgment.
¶5Yah Brunt, P. J., concurred; Hatch, and O’Brien, JJ., dissented.
¶6I find myself finable to agree with the majority of the court in the disposition which is made of this case. The trial court has found that the three sisters, Matilda, Catherine and Mary L. Everdell,. entered into an agreement each with the other that each should make her last will and testament, and should therein give, devise and bequeath to the survivors or survivor all of her property, so that the sister last surviving should receive the entire estate of the two-sisters who predeceased her, and that the survivor should make and leave a last- will and testament giving her entire estate, including the property derived from the two deceased sisters, to all the nieces of the sisters, share and share alike; that Matilda and Catherine both died prior to Mary, each leaving a last will and testament which disposed of her property in accordance with the agreement. Matilda, the first to die, devised her property to Catherine and Mary, except that she gave to her brother,-Francis Everdell, the use of certain property during his lifetime, and upon his death, or if he should sooner pay over the same, to the surviving sisters, the same to go to them absolutely. Catherine was next to die, and she gave and devised in like manner her property to' her sister Mary, making the same provision therein with respect to Francis Everdell as'-was contained in Matilda’s will. Under these wills Mary took and received the entire property and estate left by the sisters as aforesaid. Mary, after having received the estates of her sisters, repudiated the agreement arid by her last will and testament disposed of the greater part of her estate in violation of the provisions of the agreement. The court further found that such agreement was a valid, binding agreement, and decreed performance in accordance with it, as demanded in the complaint.
¶7I am of opinion that the finding of the court is clearly supported by the testimony, and answers the requirements as to the degree of strictness of proof required by the rule laid down in Gall v. Gall (64 Hun, 600). The parol testimony given in the case is clear and distinct and practically uncontradicted to the effect that the sisters, a long time prior to their death, agreed among themselves to make mutual wills, so that .the ultimate disposition of the property shotild. become vested in their nieces, parties to this action. The wills support the oral testimony. That of Matilda bore date April 4, 1881; *163of Catherine, July 26,1881; and of Mary, July 22,1881. The wills of the two sisters first named are almost exactly similar in language, and entirely so in substance. Mary’s will is in substance the same, except that she makes a devise to the defendant Elizabeth Hill of all her right, title and interest in her house and lot. It nowhere appears in the testimony that the sisters had any knowledge of the contents of the others’ wills; and aside from the agreement to make mutual wills, there is no evidence showing, or tending to show, that Matilda and Catherine had knowledge of the devise by Mary of property to Elizabeth L. Hill. While it is undoubtedly true that this agreement to make the mutual wills was invalid, and could not be enforced so long as it remained unexecuted, and while each had the right to make the will which she did, or to make a different will prior to the death of either of the sisters, irrespective of the terms of the agreement, yet it is equally true that one sister could not, as against the others, accept the benefits which she derived from the agreement, and defeat its whole scope and purpose after having so received its benefits. The purpose of the agreement was to give to the surviving sisters or sister the absolute right of use of the whole estate for any purpose which she choose; and undoubtedly the surviving sister could have used the whole of all the estates for any purpose which she desired. But she became bound, both by the benefits which she received and the terms of the agreement, to bequeath and devise the residuum to the nieces.
¶8As applied to the facts of this case, however, the agreement having been performed, and the surviving sister having received its benefits, the right of the nieces to the property became absolute. It was not essential or necessary that any will should have been made by Mary to vest title in them, or secure their rights. They took, not by virtue of the will, but by virtue of the agreement which had been made and executed by the two sisters who had died. If Mary had left no will, their rights would not have been defeated, and the making of a will contrary to the agreement did not operate to divest them of such right. The Statute of Wills, under such circumstances, manifestly can have no application, for it is not the will of Mary which is to be effectual to vest in the nieces the title of the property; they take by virtue of the executed agreement. The method by which that agreement was to be carried into effect was *164the execution of a will; hut the failure to comply with the terms of the agreement in this respect does not on this record have the effect of defeating their rights.
¶9So far as the bequests in the wills to Francis Everdell is concerned, there was no departure from the agreement. In this respect the three wills were alike. The bequest itself was in the nature of a necessity and a desire to aid the brother, and was evidently shared in by all of the sisters, as the wills upon this subject are the same. Francis L. Everdell was indebted to the sisters for moneys and certain stocks loaned to him, belonging to them. . The stocks he had hypothecated and raised money thereon for use in his business, and the sisters evidently intended that these debts should be discharged and the stocks returned during the lifetime of Francis, and, if not, at his death. The necessity for the bequest in this form was due to the circumstance of Francis’ indebtedness, and whatever be its legal character, it did not have the effect of showing any departure from the agreement. In any event, Mary L. Everdell could not be heard to say, nor can her representatives, that this bequest is a départure from the agreement. The wills contained it; Mary received the property; and after the death of her two sisters she proceeded to recover the stock and collect the debts which were due and owing from the brother, and has, therefore, placed a practical construction upon the wills and her right thereunder. She had reduced to her own possession, prior to her death, all of the property which came to her through the wills of her sisters, including this.
¶10Aside from this feature, the’terms of the wills correspond with the proof and both together answer the requirements of the law and clearly support the finding of the learned court. Indeed, as I view this case, unless the agreement for mutual wills be supported, it may as well be said that the law. does not authorize, or validate, such agreements, for here the existence of the agreement is clear, cogent and convincing, and the proof shows its execution by two of the sisters. Upon the facts, -therefore, I think the action can ' be maintained and the judgment is proper, if it can be supported within legal rules. As to the latter question, I entertain no doubt whatever, for, as I view the law laid down by the Court of Appeals in Edson v. Parsons (155 N. Y. 555), such question is authoritatively determined. Therein an action was brought to enforce a *165mutual agreement, against the testator of the survivor of two sisters, to make a will devising their property to a brother, as the ultimate residuary legatee. The action failed, but only for the reason that the proof was insufficient to establish the fact of the making of the agreement. It was sought to be sustained by a consideration of the uniform habit of thought and action of the two sisters, and the terms of the wills which they made. Aside from this, there was no proof showing any agreement, and the court held it insufficient for such purpose. In discussing the question, however, the court says: “ I think that there is no force in the objection of the respondents that, if the agreement was proved, the plaintiff’s testator was incapable of enforcing it by reason of his not being a party to it. If it existed, it was for his benefit and advantage and he had a standing in equity to enforce it against the legatees and legal representatives of the testatrix.”
¶11Two things were decided in that case: First, that such an action could be maintained and, if supported by sufficient proof, the agreement enforced; and, second, that the ultimate beneficiary under the agreement had standing to maintain the action, although not a party to the agreement. It seems clear, therefore, that under the facts and the law, as presented by this case, the plaintiffs are entitled to the benefits of the judgment which has been rendered. The Statute of Frauds constitutes no bar to the action. It would have been a complete answer to it had the agreement remained executory, but it having been executed, and Mary L. Everdell having received the benefits under it, she was bound to vest the property, which she devised, in accordance with its terms; and, having failed, equity will enforce the agreement and make the disposition which she ought to have made. (Healy v. Healy, 55 App. Div. 315.) All of the eases relied upon by the appellants in support of the statute as a bar are distinguished by the fact that in each the alleged agreement remained executory, and no performance was had under it. In the present case there was clear consideration by the devise of the property to Mary and her enjoyment of it. The doctrine of Lawrence v. Fox (20 N. Y. 268) and kindred cases has no application. That was an action at law to enforce a promise made by one party to another for the benefit of a third person. This is an action in equity for the-specific performance of a contract and, in effect, to impress a trust in favor *166of the parties hereto upon the property which came to Mary L. Everdéll and was devised by her. The principles applicable in such a case and that of Lawrence v. Fox (supra)are entirely dissimilar.
¶12I think, therefore, that the. judgment should be affirmed. ■
¶13O’Brien, J., concurred.
¶14Judgment reversed, new trial ordered, costs to appellants to abide event.