¶1I concur in the majority opinion, in so far as it reverses the judgment of the district court and remands the cause for further proceedings, but I do not concur in the further direction, nor in all that is said in the opinion.
¶2The opinion assumes that there is no defense to the petition, and the district court cannot upon a second hearing follow the opinion and at the same time enter a decree for the defendants, notwithstanding a perfect defense may have been pleaded and proved.
¶3I do not agree to the statement that mutual wills executed in conformity to a preceding oral contract constitute, with the contract, an integral part of one transaction, nor that the respective testators are powerless *606to revoke their wills. The wills may furnish written evidence to take the oral contract without the statute of frauds, and if either testator subsequently, in violation of his contract, revokes his will or devises to another the property described in the oral contract, the beneficiaries whose rights are last in point of time will hold the property as trustees for the benefit of the senior devisee.
¶4Furthermore, a decree of specific performance, within the limits of legal discretion, may be granted or withheld according to the circumstances of the case. In the case at bar neither will refers to any contract, nor can it be ascertained from an inspection of them that they were executed in conformity to an antecedent agreement. If evidence competent to establish that essential link in the plaintiffs title be not produced upon a trial, she should not prevail. If that evidence be produced, still there may be proof of such fraud, mistake, unfairness, hardship, rescission, or of changed conditions, as will justify a judgment for the defendants.
¶5For these reasons, I go no further than to say that the petition states facts sufficient to constitute a cause of action in the plaintiff’s favor, and the district court erred in sustaining the demurrer.