The record does not support this contention. Although he pleaded the wills were made pursuant to the agreement, Harry Seaburn claimed his rights were fixed and determined according to the terms of the (mutual) will of Mrs. Logue which devised the real estate to Harry subject to a life estate in Mr. Logue. Child v. Smith, 225 Iowa 1205, 1214, 282 N.W. 316. As such devisee he was a member of a class protected by section 622.4 and Mr. Logue was incompetent to testify against him to Mr. Logue's personal transactions and communications with Mrs. Logue. II. E.E. Poston, the lawyer who drew the two instruments, testified for defendants, in part, substantially as follows:
"* * * no binding contract exists so long as both parties live. Either may revoke. `But if there be no revocation before the death of one of the parties, the right of the survivor is thereby fixed * * * according to the terms of the mutual will.' Anderson v. Anderson, 181 Iowa 578, 584, 164 N.W. 1042, 1044. `And where, as in the instant case, provision is made for third parties, the rights of such third parties are equally thereby fixed.' Child v. Smith, 225 Iowa 1205, 1214, 282 N.W. 316, 321. Few propositions are better established in our opinion." (Emphasis supplied).
Baker v. Syfritt, supra, also states (page 59 of 147 Iowa): "* * * where two persons competent to make testamentary disposition of property enter into a compact or agreement by which they unite in devising their joint or several estates to a designated third person, subject to a life estate in the survivor, and upon the death of the one the survivor avails himself of the benefits of the devise in his favor [italics added], he must in equity be treated as holding the title in trust for the purpose indicated in the compact which became irrevocable upon the death of the other party thereto." [6] Child v. Smith, 225 Iowa 1205, 1217, 282 N.W. 316, quotes with approval the second of the above excerpts from the Baker opinion. It also approves (at page 1218 of 225 Iowa) a long excerpt from Stevens v. Myers, 91 Or. 114, 177 P. 37, 2 A.L.R. 1155, 1172, 1173, which includes among the prerequisites of a suit for specific performance against the survivor of an agreement to make mutual wills that there was good consideration for the agreement, acceptance by the survivor of property under the will of the first to die and reasonableness of the agreement. In re Estate of Johnson, supra, 233 Iowa 782, 789, 10 N.W.2d 664, 667, 148 A.L.R. 748, 753, quotes from Baker v. Syfritt, supra, at page 56 of 147 Iowa, a statement that an agreement to make a joint will is enforceable against the survivor where there is such a will whereby he "takes some benefit from the estate of the one first deceased," coupled with a devise of the remainder of the estate of both to a third person.
It is also generally stated that after death of one of the parties, if the other party accepts the benefits or provisions of the will made for him, then the other party may not dispose of his property otherwise than according to the terms of the will. Jennings v. McKeen, 245 Iowa 1206, 65 N.W.2d 207, and cases cited therein; Child v. Smith, 225 Iowa 1205, 1214, 282 N.W. 316; Culver v. Hess, 234 Iowa 877, 14 N.W.2d 692. [10, 11] All wills are by nature ambulatory, and thus their provisions may be changed prior to death by the maker unless by contractual provisions others' rights thereunder become fixed.
[1] Plaintiff has the burden to prove the oral contract relied upon by clear and satisfactory evidence. Campbell v. Dunkelberger, 172 Iowa 385, 389, 153 N.W. 56; Maurer v. Johansson, 223 Iowa 1102, 1106, 274 N.W. 99; Child v. Smith, 225 Iowa 1205, 1215, 1219, 282 N.W. 316; DeJong v. Huyser, 233 Iowa 1315, 1320, 11 N.W.2d 566, 569; annotation 169 A.L.R. 9, 65. See also Freeseman v. Henrichs, 233 Iowa 27, 28, 6 N.W.2d 138, 139. Plaintiff, Henry P. Johansen, married Agnes Bendixen in 1904.
" As supporting the foregoing definitions and propositions, see Baker v. Syfritt, 147 Iowa 49, 125 N.W. 998; Campbell v. Dunkelberger, 172 Iowa 385, 153 N.W. 56; Child v. Smith, 225 Iowa 1205, 282 N.W. 316; Anderson v. Anderson, 181 Iowa 578, 164 N.W. 1042; and citations in said decisions. See, also, 4 Iowa L. Bull. 189; McCarty Iowa Probate, section 367; annotations in 43 A.L.R. 1020, 102 A.L.R. 491.
"Our decisions establish that in a joint or mutual will for the benefit of the survivor there is `an element of contractual and mutual obligation between the makers' which may become important if there be no revocation by either during the life of the other and if there be provision therein for the benefit of a third party. Baker v. Syfritt, 147 Iowa 49, 55 et seq., 125 N.W. 998; Campbell v. Dunkelberger, 172 Iowa 385, 389-392, 153 N.W. 56; Anderson v. Anderson, 181 Iowa 578, 584-586, 164 N.W. 1042; Maurer v. Johansson, 223 Iowa 1102, 274 N.W. 99; Maloney v. Rose, 224 Iowa 1071, 277 N.W. 572; Child v. Smith, 225 Iowa 1205, 1214, 282 N.W. 316; Culver v. Hess, 234 Iowa 877, 882 et seq., 14 N.W.2d 692; In re Estate of Johnson, 233 Iowa 782, 787, 10 N.W.2d 664, 148 A.L.R. 748; DeJong v. Huyser, 233 Iowa 1315, 1320, 11 N.W.2d 566."
The rule is that the person coming into the possession of the property otherwise than as an innocent purchaser and not under the terms of the will is held in equity to be trustee thereof for him to whom it ought of right to have been devised. Child v. Smith, 225 Iowa 1205, 282 N.W. 316, 323; Tiemann v. Kampmeier, supra. Clearly, Brown was not an innocent purchaser so the only question is whether he took the property consistent with the terms of the mutual will.
In a joint or mutual will for the benefit of the survivor, there is an element which partakes of the nature of contractual obligation. * * * if there be no revocation before the death of one of the parties, the right of the survivor is thereby fixed and determined according to the terms of the mutual will. Furthermore, in Child v. Smith, 225 Iowa 1205, 282 N. W. 316, the Iowa Supreme Court after quoting the above, went on to say, ‘And where * * * provision is made for third parties, the rights of such third parties are equally thereby fixed and determined according to the terms of the mutual will.’ The provisions of the will are plain and unambiguous.
Nevertheless, even when the wills are executed in pursuance of an agreement between the parties to make a testamentary disposition of their property in a particular mode each in consideration of the other, either party may revoke during the lifetime of both provided notice be given the other party of such intention. See Campbell v. Dunkelberger, 172 Iowa 385, 389, 153 N.W. 56, 58; Anderson v. Anderson, 181 Iowa 578, 584, 164 N.W. 1042, 1044; Child v. Smith, 225 Iowa 1205, 1214, 282 N.W. 316, 322; Luthy v. Seaburn, 242 Iowa 184, 190-191, 46 N.W.2d 44, 48; In re Estate of Ramthun, 249 Iowa 790, 797, 89 N.W.2d 337, 341. See also Note, Recent Development of the Iowa Law of Joint and Mutual Wills, 44 Iowa L.Rev. 523.