(dissenting).
To sustain the majority opinion, three propositions must be answered in the affirmative. These are: (1) That Mr. and Mrs. Stinson had not made an agreement whereby each would take that property, the title of which was in his or her name; (2) *282That the right to institute an action for determination of property rights acquired under the Community Property Act survives the death of either the husband or wife; (3) That the one-year limitation in the repealing act is inapplicable, mere sur-plusage and of no force or effect, and the three-year limitation is applicable.
Title 32 O.S.19S1 § 83, which repeals the Community Property Act, inter alia, provides :
“Within one (1) year from the effective date of this Act, any husband and wife whose property or income was subject to the terms of the act * * * may enter into a recordable agreement, specifying the rights acquired by either or each of them * * altering those rights if they so desire * * *. Should any husband and wife be unable to reach such an agreement, either may file an action * *
It is my opinion that Mr. and Mrs. Stin-son, after the effective date of the repealing act, considered and agreed that each would be the owner of that property in which title was in his or her name, and there was no reason to file an agreement specifying their rights, as that was of record and no necessity to file an action for a determination thereof. It is well to remember in this connection that we are concerned with two people who had lived together as husband and wife for thirty years. According to the testimony of the witnesses, complete harmony and accord, love and affection existed at all times between them, and each was ever mindful of the welfare, well-being, and financial condition of the other. To say that she ever, at any time considered taking from her husband one-half of the property he had accumulated by hard work and his business ability, or that he ever considered taking one-half increase of her separate property, are exactly opposite their actions through their- thirty years -of married life. She knew that to do so would place her husband in jeopardy of being unable to maintain himself in later years, for at that time, had Mr. Stinson been stripped of one-half of the business he had built up, it would in common parlance, “wipe him out”. This I do not believe she intended, and I think this theory is substantiated by the paragraph in her will which provides :
“This disposition of my property ignores my husband who is well fixed financially and well able to take care, of his own future needs and wants, and in fact, is a disposition which has his full knowledge and approval.”
This provision discloses complete agreement between Mr. and Mrs. Stinson as to-the property rights of each and shows she was not claiming an interest in any property, the title of which was then in her husband and in my opinion, is the reason why there was not a recordable agreement entered into nor an action instituted by either Mr. or Mrs. Stinson. By the express provision in her will, Mrs. Stinson stated' that her husband was well fixed financially and that her will had his full knowledge and consent. Both knew the value of their property and agreed as to the disposition of it.
Assuming however, no agreement concerning their respective property rights had' been made, did. a right of action for the-determination thereof survive the death of Mrs. Stinson? The Community Property Law, as amended in 1945, which was repealed in 1949, provided for the administration of all community property upon the death of the husband or wife. However, in the act repealing the Community Property Law, no provision was made for the administration of an estate prior to an' agreement being recorded or an action' brought adjudicating the right each acquired. Sec. 83, supra provides:
“Within one (1) year from the effective date of this Act, any husband or wife whose property or income was subject to the act * * *. Should' any husband and wife be unable to reach such an agreement, either may *283file an action * * *. The failure to make and record such an agreement, or to file such an action zvithin one (1) year * * * shall bar the husband or wife whose title or interest does not appear of record, or who is not separately in possession of the property * * * ”
The act of 1949 contains no provisions whatsoever, for an heir to bring such action, in fact the words heir, survivor, administration, descent, succession, testate, intestate, decedent' or estate are not even mentioned in Sec. 83, supra. Had the legislature intended for such action to survive the death of either the husband or wife, it would have so stated.
Mrs. Stinson was in no better position, after the repeal of the act than where a wife claims an interest in her husband’s property under the rule that the property was acquired by and through their joint efforts. Had she claimed an interest by reason of their joint efforts, it could only be established by agreement or by an action in court establishing her right; however, such action would have .to be instituted during her lifetime and would not survive her death. She did not avail herself of the right given her under the statute, and failing to do so such right did not survive her. In Jones v. Farris, 180 Okl. 341, 69 P.2d 344, 346, we said:
“The legal title here was in the husband. Whatever rights were available to the wife, to assert or resolve an interest in the jointly acquired property, were never by her exercised, and it may be that she never would have cared to exercise them. And even had she done so, it is uncertain what particular fraction or portion she would have obtained. We cannot hold that this right which she had, as a wife, descended to her children, for it was a right which was available if she desired to use it but which apparently she chose not to use, and which therefore was not vested. As a general rule the community character of property jointly acquired by husband and wife is dissolved by the death of either spouse (5 R.C.L. 863), unless some statute prescribes otherwise, and we have no statute which would permit the children to inherit the property in suit upon the death of their mother.”
If the right of action did survive, was the one or three-year limitation to institute the proceeding applicable? Sec. 83, supra, became effective June 2, 1949, and under the express provision of the act, the failure to make and record such an agreement or file an action within one year, would bar the husband or wife whose title or interest did not appear of record or who was not separately in possession.
Mrs. Stinson’s daughter, the plaintiff herein, could not have any greater rights than Mrs. Stinson; and, since Mrs. Stin-son’s interest did not appear of record or was she separately in possession and this action was not filed within one year after the effective date of the repealing act, this action was barred by the express terms of Sec. 83, supra. If the one-year limitation is not applicable .to a husband or wife whose interest does not appear of record or who is not separately in possession, it is mere surplusage and of no force and effect. In my opinion the three-year limitation, relied on by plaintiff, is applicable to those instances where third persons are involved who acquired a claim or interest in the community property or where the interest appears of record or the husband or wife is separately in possession, and is not applicable to the case at bar.
For the above reasons, I respectfully dissent.
I am authorized to state that Mr. Justice WELCH concurs in the views herein expressed.