dissents for the reason that he is of the opinion that the county court had no jurisdiction to determine the question of whether the deeds from Mr. Griffin to his wife were effective to vest title in Mrs. Griffin.
RILEY, J.(dissenting). I cannot agree that the heirs of a predeceased spouse are constituted heirs of a surviving spouse by the provision contained in the Second subdivision of Title 84, O.S. 1941 §213.
Under the proviso, property acquired by the joint industry of husband and wife during coverture, in the absence of issue, goes to the survivor, with right of disposition and at whose death, if any of the property remains, one-half of it shall go to the heirs of the hus*681band and one-half to the heirs of the wife, according to the right of representation.
The mere fact that one-half of the property remaining “shall go” to the heirs of the wife does not make them “heirs of the last survivor”.
The heirs of a predeceased intestate spouse have a contingent interest in an estate jointly acquired during coverture. Enjoyment or possession of that interest is dependent upon non-disposition of the estate during the lifetime of the survivor. 16 Am.Jur. p. 794 §27; Doe ex dem. Kean v. Roe (Del.) 29 Am. Dec. 336.
The heirs of Roma Griffin, deceased, at her death, became vested with the contingent remainder.
Upon the happening of the event, i.e., the death of H. B. Griffin, the surviving spouse, without having disposed of the entire estate, Elizabeth Dohner, as' heir and next of kin of Roma Griffin, the predeceased spouse, was entitled to possession and enjoyment of a one-half interest in the estate.
The proviso of the statute cast the whole estate upon the surviving spouse but limited right of inheritance therein to one-half thereof; a relict was provided as to the other one-half interest. Wright v. Saltmarsh, 174 Okla. 226, 50 P. 2d 694. The majority assume, contrary to the text, that under the terms of the proviso “the whole estate shall go to the survivor” and there finally vest. But the sentence does not end there! Under continuing provision, the estate, if any remains subject to disposition, passes at the death of the surviving spouse, one-half to the heirs of each spouse. The legislative designation of heirs is several and not joint. Descent is cast at the time of the death of the survivor.
I think the judgment may be affirmed, but am of the opinion that administrations upon estates should be kept separate and apart. In no event should the probate practice indulge the determination of titles.