(dissenting).
Mrs. Ora Mae Chadwick Bristow was in being at the death of her father, and no impediment existed at such time to prevent her from taking the remainder in the lands devised, to the extent of her father’s interest therein which vested upon his death. So far, I am in full accord with the result reached in the majority opinion. I respectfully dissent, however, from the court’s holding with respect to the construction of and effect to be given the will of the mother, Mrs. S. A. Chadwick.
The general rule is that the death of a legatee or devisee prior to that of the testator results in a lapse of the bequest or devise in the absence of any other method of devolution or substitutionary provisions contained in the will. 44 Tex.Jur., 805. An exception to this rule is created by Art. 8295, Vernon’s Ann.Civ.St, in favor of lineal descendants of the testator. This statutory exception carefully limits its benefits to those who survive the testator. This statute has been construed, under the rule of implied exclusion, to exclude devisees or legatees not coming within its terms. Leatherwood v. Stephens, Tex.Com. App., 24 S.W.2d 819.
In Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841, 844 (Com.App. Opinion adopted by Sup.Ct.), is found the nearest approach to a solution of the question here presented. In that case J. H. Nail and his daughter, Elizabeth Carstairs, became embroiled in a bitter controversy over their affairs, and in the settlement of which Nail made the. following agreement:
“El Paso, Texas, June 9, 1921.
“Mrs. Elizabeth Carstairs,
“El Paso, Texas.
“Dear Daughter:
“I am handing you herewith a copy of my will which has been re-drawn and which is to be executed by me as soon as I reach Fort Worth.
“In this will you are left one-fourth (⅛) part of my estate after a special legacy to my son, James H. Nail, Jr.
“As you have released me of the payment of the five thousand ($5,000.00) dollars, which some time ago I obligated myself to you for, and to allay all friction between us, I assure this will shall be carried out as far as you and Celia’s children are concerned, and at my death you will receive one-fourth (⅛) part of my estate.
“Your father,
“J. H. Nail.”
Elizabeth Carstairs died childless May 3, 1927, but left a will with her husband as sole beneficiary. After the death of Elizabeth Carstairs, J. H. Nail made a new will in which she was omitted. The husband, Robert Carstairs, contended that under the agreement, above set forth, that a present irrevocable one-fourth of the father’s estate vested in his wife, as it existed at his death, which passed to him *71under the will of his (Carstairs) wife. In denying this contention the court held:
“The bequest was personal to Elizabeth —a transaction between father and daughter, to which the husband Carstairs was not a party and to which he is not shown to have assented or in which he agreed to do or forbear doing anything. The father carried out his promise ‘not to disinherit’ Elizabeth, and had she survived him, she would have inherited the one-fourth of his estate just as she would have inherited had the father died intestate.
“There is nothing in the instrument indicating any intention upon the father’s part or any understanding between them that the devise, in case he survived her, should go to her husband or any other stranger in blood. There is no devise over, but the promise, personal to Elizabeth, is that ‘the will shall be carried out so far as you and Celia’s children are concerned, and at my death you (meaning Elizabeth — not her husband or any one else) will receive one-fourth part of my estate.’ If the will had not been changed, the husband would have profited nothing, because the wife’s prior death terminated the contract and the bequest lapsed. Coleman v. Jackson, Tex.Civ.App., 126 S.W. 1178. The will was referred to and became part of the contract.
“On the other hand, if Elizabeth had left a descendant who survived the testator, the descendant would under the statute (Art. 8295), have taken the part bequeathed to Elizabeth, and any pretended testamentary disposition thereof by her foreclosing the descendant’s such right would have been futile.”
I see no valid reason for not applying the principles of this decision to the case here. The devise to Ora Mae Chadwick Bristow was no less personal than the contract to make a will in favor of Elizabeth Carstairs. In neither case was there any devise over in the event of the death of the beneficiary.
It adds nothing to say that the contract, embodied in the Chadwick will, is irrevocable. No question of revocation or attempted revocation is present. The' contract had been faithfully performed. A will after the death of a testator is likewise irrevocable, yet the will is subject to many rules of law, one of which is that a devise lapses should- the devisee pre-decease the testator. A devisee or legatee may refuse to accept under the will. The purpose for which a bequest is made may be non-existent at the testator’s death, or at such time the object of his bounty may not exist, or a will may contain a void or unlawful devise or bequest, yet in all such instances the devise or bequest lapses. 44 Tex.Jur., 805. That these and other rules pertaining to wills should be discarded merely because the will is based on a contract is inconceivable.
The product of such a contract is nothing more nor less than a will and should be subject to all the rules of law pertaining thereto.
A careful reading of Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, writ refused, will disclose that this doctrine of irrevo-cability relates only to the right of the survivor to change the will. In Ellsworth v. Aldrich, Tex.Civ.App., 295 S.W. 206, 209, writ refused, the court, after referring to the general rule of the ambulatory nature of a will, had this to say about the decision in Larrabee v. Porter, and other similar cases: “There is a seeming exception' to that rule adopted in cases involving rights claimed under mutual wills. Examples are found in Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395; Sherman v. Goodson[’s Heirs], Tex.Civ.App., 219 S.W. 839, and Heller v. Heller, Tex.Civ.App., 233 S.W. 870. In two of those cases the probate proceedings were, in the district court on appeal, consolidated, by agreement, with suits in equity. In the last case no probate proceedings were involved. In each of those cases it was held that after the decease of one of the parties to a joint and mutual will the survivor, having elected to take the benefits of the original testament, could not by a revocation destroy rights which the instrument was designed to create. The ruling was based upon the principle of estoppel and was to prevent the perpetration of a fraud.”
No branch of the law should have more stability than the law of wills. Changes *72should be by legislative enactment only. To overcome a harsh rule of the common law our legislature enacted Art. 8295 to prevent the lapse of a bequest or devise under certain conditions which otherwise would occur by reason of the death of the legatee or devisee. Our Supreme Court, as above noted, has held that all others not named in the statute are excluded. Appellant is not one of the class referred to in the statute. He is bound by the common law rule.
While the deceased daughter, Mrs. Bris-tow, had no children, the majority opinion would cut off any children she may have had — in direct violation of Art. 8295 and in the very face of the pronouncement of the Supreme Court in Bomar v. Carstairs, supra, that any pretended testamentary disposition foreclosing such children’s right to take under the statute would have been futile.
Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366, writ refused, cited by the majority, is not in point. The prior death of a legatee or devisee was not involved. Furthermore, what the court there said concerning the vesting of title under a joint and mutual will was pure dictum, the court having held that no joint and mutual will had been established.
The court’s holding as to the intention of the parties to the will involved is fully answered in the Bomar v. Carstairs case.
In my opinion, the devise to Mrs. Bris-tow, under the will of her mother was personal and lapsed by reason of her prior death.
Supplemental Opinion.
McClendon, chief justice.In order to clarify the points in which we differ from our Brother Associate Justice HUGHES, we file this supplemental opinion.
There is no disagreement upon the point that if the mother’s half interest in the community property did not vest under the will of the father, and acceptance thereunder by the mother, then the devise to Ora Mae as to that half interest lapsed, since she predeceased her mother and left no descendants.
The point upon which we do differ is our holding in the original opinion that the entire estate of both spouses vested under the husband’s will. The language of the will in this regard is plain, explicit and not open to construction. If there bad been no joint will, but only the will of the father attempting to dispose of the entire estate of both spouses, the result as to all property of both those estates would have been the same. The mother would have been put to an election and her acceptance under the will would have vested the entire property of both estates as of the date of the father’s death. No subsequent will of the mother could have altered or defeated such vesting. The subsequent probating of the mother’s will could not operate upon any of such property, as the entire title vested under the father’s will. Of course, no property acquired by her subsequently to the death of the father, passed by the father’s will. Such property (if any) did pass under her will. Whether the contract embodied in the mutual will embraced also such after acquired property is a question with which we are not here concerned.
We do not regard the case of Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841, as having any material bearing upon the holdings which control our decision.
The will in that case was executed in compliance with a contract between father and daughter, in which the former agreed to devise to the latter her inheritable share in his estate. The daughter died childless, and thereafter the father made a new will revoking the earlier one. The holdings in the case were in substance: that the power of the father to revoke the contractual will could not be litigated in the probate court, consequently the last will was entitled to be probated, and revoked the contractual will; that even had there been no revocation of the contractual will and had it been admitted to probate, the devises to the daughter would have lapsed since she predeceased the father and left no descendants; and that the contract with the daughter was personal to her, had been *73fully complied with by the father, and therefore was not breached by him by his revocation thereof after her death; and that her devisees acquired no interest under the contract, since it was personal to her and therefore unassignable.
We do not agree with the statement in the dissenting opinion that the holding in the Wagnon case “concerning the vesting of title under a joint and mutual will was pure dictum, the court having held that no joint and mutual will had been established.” The court did hold that the record upon that appeal did not show that the wills were mutual, and upon that issu'e the cause was remanded for a new trial. The opinion constituted a direction to the trial court as to how title to the property was to be adjudged in case it developed upon a new trial that the wills were joint and mutual. In no sense was the holding dictum, but was an adjudication of a question essential to a proper disposition of the case upon a new trial and was therefore res judicata of that issue upon such new trial. Sutherland v. Friedenbloom, Tex.Civ.App., 200 S.W. 1099, is directly in point and supports this view, if support were necessary.
HUGHES, J., dissenting.