On Motion for Rehearing. After further consideration of the several motions filed for rehearing herein, the majority of the Court are of the opinion that the motion of appellee, Robert R. Bradford, should be granted and the judgment of the trial court in all things be affirmed.
We are in accord with the very splendid reasoning contained in the original opinion handed down in this cause, and the conclusions reached therein, with the exception of the construction placed upon the will of R. T. and Mattie Bradford. It is our opinion that evidence is not admissible to vary the consideration recited in the *Page 894 deed from Mrs. Mattie Bradford to Mrs. Florrie Nye, in that to do so would permit a change in the estate granted to be made; that is to say, to allow by such testimony a change in the interest conveyed to Mrs. Florrie Nye from a community estate to her separate estate.
With respect to the type of will made by R. T. Bradford and wife, Mrs. Mattie Bradford, we are of the opinion that under all the facts and circumstances surrounding its execution, unquestionably it is a joint and mutual will. Joint wills, and joint and mutual wills have received firm recognition and judicial sanction in doubtless all jurisdictions; their nature and characteristics is not a debatable question. A joint will is not necessarily a mutual one. For a will to be both joint and mutual, it is quite uniformly held that it must be the will of two or more persons contained in a single testamentary instrument, jointly executed by them pursuant to an agreement or compact to dispose of their respective estates either to each other or to third parties in some certain manner. See 69 C.J. Sees. 2709, 2714, and 2719. The distinguishing characteristic of such a will is the covenant or contract made by the testamentary parties thereto pursuant to which the will is jointly executed. Prior to the death of either party, such a will might be revocable; after the decease of either one and the other party probates the will and takes under it, he not only may be held in equity to the terms of the will, but he is estopped to deny its provisions.
In the instant case, the will was joint and mutual in form; it was made pursuant to an agreement between the signatory parties that a certain disposition should be made of their community estate. The survivor was to receive a life estate in the property, with remainder to the two children, who were to be treated exactly alike. After the death of R. T. Bradford, his widow probated the will and took under its plain provisions. Having done so, she was not in position to revoke her will, and was estopped to deny its effectiveness. In our judgment, this situation comes squarely within the decision in the case of Sherman v. Goodson's Heirs, Tex. Civ. App. 219 S.W. 839, which is still followed in subsequent cases. Belkin v. Ray, Tex. Sup., 176 S.W.2d 162. To hold otherwise would be, in effect, to destroy completely wills which have been approved as to being joint, or joint and mutual. No longer would they be recognized in our jurisprudence.
The case of Aniol v. Aniol, 127 Tex. 576, 94 S.W.2d 425, upon which our learned colleague predicates his position, in our opinion is not decisive of the case we have under discussion. In that case the court held that agreements to make mutual wills are valid, but that their testamentary character and import alone are not sufficient to make them such. In the Aniol case, there was no agreement to make a mutual will; no election to take under it was made by the survivor, since the property involved was a homestead and an election by him was not required. We think a correct decision was arrived at in the Aniol case but that such case is not applicable to the facts in the present one. An examination of the case of March v. Huyter, 50 Tex. 243, and the case of Wyche v. Clapp, 43 Tex. 543, will disclose that the court in each case took pains to point out that there was no contract or agreement to make a mutual will. Too, in those cases there was no election to take under the wills in question, and no question of estoppel presented.
Such being true, Mrs. Mattie Bradford could do only what she was authorized to do under the will; namely, sell the property to pay debts. Her deed to Mrs. Florrie Nye thus was ineffective to pass title.
The judgment heretofore entered by this Court reversing and reforming the judgment of the district court is set aside and the judgment of the trial court is affirmed.