(dissenting).
The holding in the Wagnon case, referred to in my dissent as dictum, considered as a guide to the lower court, is not, as pointed out by Chief Justice Mc-CLENDON, in the court’s supplemental opinion, dictum. I do suggest, however, that the rule there announced was not fully nor adequately examined. Nevertheless, such holding would be followed but for my firm conviction that the later opinion of the Supreme Court in Bomar v. Carstairs has superseded the rule laid down in the Wag-non case and has announced controlling principles of law which this court is bound to follow. Bomar v. Carstairs as well as Leatherwood v. Stephens, relied upon in my dissent, have recently been cited with approval by the Supreme Court in Logan v. Thomason, 202 S.W.2d 212.
The correctness of the illustration given in the supplemental opinion, i. e. the will of the father alone attempting to dispose of the estate of both spouses, may be conceded, but its application is not perceived. Here the father and mother each executed a will. Neither attempted to dispose of the property of the other. As to this there can be no question. 44 Tex. Jur., p. 823. In legal effect there are two wills, by which each maker disposes of his or her own property.
The court also poses, but does not answer, the question of whether the contract embodied in the mutual will embraces property acquired by the mother subsequent to the death of the father. This but emphasizes the danger of the departure made by the court in its original opinion. If the mother’s will is treated as a will, construed as a will, and subjected to all the rules of law applicable to wills, certainty of the law is maintained and new and novel questions avoided.
The court in its supplemental opinion says the opinion in Bomar v. Carstairs has no material bearing upon the case, yet summarizes the holdings therein, in part: “ * * * that the contract with the daughter was personal to her, had been fully complied with by the father, and therefore was not breached by him by his revocation thereof after her death; and that her de-visees acquired no interest Under the contract, since it was personal to her and therefore unassignable.”
The materiality of this holding is, to me, not only obvious, but controlling.