(dissenting).
Without considering the force and effect of the conjoint will of Mr. and Mrs. Coffey, upon the death of Mr. Coffey, Mrs. Coffey would take the entire joint tenancy estate under the original grant or instrument creating the joint tenancy to the exclusion of the heirs of Mr. Coffey. In other words, the joint tenancy estate would not become a part of the Estate of Mr. Coffey and Mrs. Coffey would take under the terms of the joint tenancy deed and not as an heir of Mr. Coffey. See Draughon v. Wright, 200 Okl. 198, 191 P.2d 921 and Mercer v. Mercer, Okl., 365 P.2d 554.
However, under the terms of the conjoint will, Mr. and Mrs. Coffey bequeathed and devised to the survivor a life estate in the property and agreed that the remainder would go to other named devisees. Without question, the terms of the conjoint will are wholly inconsistent with the right of survivorship provision in the joint tenancy deed for under the joint tenancy deed the survivor would take a fee simple title and under the terms of the will the survivor would take only a life estate.
The District Court, on appeal, found that the conjoint will was an agreement and contract between Mr. and Mrs. Coffey which severed the joint tenancy with right of survivorship and that each became the owner of an undivided one-half interest in the property and that an undivided one-half interest was part of the Estate of Mr. Coffey which was to be distributed under the terms of the will except as modified by the election of Mrs. Coffey to take under the laws of descent and distribution.
The majority opinion holds that to attribute to a joint will the quality of ir-revocability, the burden was upon the heirs of Mr. Coffey to make affirmative proof of the existence of a contract, either by indisputable evidence, or by the terms of the will itself and that there was no evidence of sufficient force or effect to constitute a contract between Mr. and Mrs. Coffey which would prevent Mrs. Coffey from revoking the conjoint will and taking pursuant to the survivorship provision of the joint tenancy deed.
In my judgment, the majority of my associates has placed the wrong burden of proof upon the heirs of Mr. Coffey for I believe the only burden on the heirs of Mr. Coffey was to prove that the conjoint will was of sufficient force and effect to constitute an agreement and contract to sever or terminate the joint tenancy relationship (which the trial court found that the heirs sustained such burden) ; whereas, the majority opinion requires the heirs to prove that the conjoint will was of sufficient force and effect to constitute a contract which would prevent Mrs. Coffey from revoking the conjoint will.
I am of the further opinion that the question of revocation of the will by Mrs. Coffey is not before us as she has not revoked the will but has filed her election not to take under the will. In the case of In re Blaydes’ Estate, 202 Okl. 558, 216 P.2d 277, we construed Title 84 O.S.1961 § 44, known as the “forced heir statute” and held:
“In this jurisdiction a husband and wife may not dispose of or otherwise limit by will the amount which the surviving spouse shall receive to less than that which such spouse would be *541entitled to take under the law of intestate succession.
“A husband and wife, cannot by contract to make a conjoint will, and by the making of such will in pursuance thereto, nullify the provisions of 84 O.S. 1941, § 44, known as the ‘forced heir statute.’ ”
In the opinion we said:
“A surviving spouse has no actual interest in the property of her spouse until the death of the latter and therefore has no existing right which she can dispose of by contract. Some courts hold that an election may be made prior to the death of the spouse but we think the sounder rule is that such cannot be done. To hold otherwise would be to say that the parties can do indirectly what the statute prohibits. * * * ”
The above case was cited with approval in Crane v. Howard, 206 Okl. 278, 243 P. 2d 998.
It follows that Mrs. Coffey was entitled to elect to take under the laws of descent and distribution and not under the terms of the will, irrespective of any contractual obligations contained in the conjoint will. Therefore, in my judgment, the decisive issue is not whether Mrs. Coffey could elect to take under the will or under the laws of descent and distribution or revoke such conjoint will, but what constituted the Estate of Mr. Coffey. That is, did the parties contract to terminate the joint tenancy relationship or did they not? If they did so contract, the property is part of the Estate of Mr. Coffey, if they did not so contract, the property is no part of the Estate of Mr. Coffey but the separate property of Mrs. Coffey.
I am also of the opinion that where a joint tenancy relationship exists, such relationship may be terminated by contract between the joint tenants, even though such contract be testamentary in nature.
Title 32 O.S.1961 § 5, provides that either the husband or wife may enter into any traxrsaction with the other and in 57 Am. Jur. “Wills”, Sec. 32, it is stated that an instrument in writing may be a contract respecting property in one part and testamentary in another part in relation to other and distinct property.
In Wardlow v. Pozzi, 170 Cal.App.2d, 208, 338 P.2d 564, it is said:
“There can be no question but that a joint tenancy may be terminated by express agreement between the joint tenants and an agreement between the tenants which, although it does not expressly terminate the tenancy, is inconsistent by its terms with one or more of the four essential unities of a joint tenancy will also be adjudged to be a severance thereof. * * * Therefore, any interference with the right of sur-vivorship by the terms of the agreement will sever the joint tenancy relationship. McDonald v. Morley, 15 Cal.2d 409, 101 P.2d 690, 129 A.L.R. 810.”
In McDonald v. Morley, supra, the Supreme Court of California said:
“At the time when Mr. and Mrs. McDonald made their agreement, they held title to the property ‘as joint tenants’. Such an estate requires unity of interest, unity of title, unity of time, and unity of possession. * * * A distinguishing incident of it is the right of survivorship. * * * But by their contract the parties specifically provided that if either one of them died, the interest of that one should not go to the survivor but to the daughter. This is entirely inconsistent with an estate in joint tenancy, which was thereby terminated. * * * Thereafter, Mr. and Mrs. McDonald were tenants in common with separate descendible interests.”
In Berry v. Berry’s Estate, 168 Kan. 253, 212 P.2d 283, the Supreme Court of Kansas held:
“A husband and wife, being the owners as joint tenants with right of sur-vivorship, and not as tenants in common, of eighty acres of real estate, ex*542ecuted their joint and mutual will, which by its very terms was declared to be contractual. By the provisions of the will, * * * the survivor was to take a life estate in all property of the deceased and upon the death of such survivor all property was to be divided between two sets of children named in the will. The husband died, the will was admitted to probate and upon final settlement of his estate the surviving widow claimed, full title to the eighty acres in question. Held, the terms of the contractual joint and mutual will effected a severance of the joint ten,-ancy provision in the deed and upon the death of the husband the surviving widow took a life estate in the eighty acres with remainder over.” (Emphasis ours.)
In the body of the opinion the Court said:
“This is not a case of a joint tenant attempting a severance of the joint tenancy by a testamentary devise to a ■third party, but rather we think it to be an agreement and contract, testamentary in form, that the survivor should take a life estate in all property however owned by the parties, with remainder over.”
Based upon the foregoing reasons, I believe the issue before this Court is whether the trial court’s finding and judgment that the conjoint will of Mr. and Mrs. Coffey was sufficient to constitute an agreement and contract to terminate the joint tenancy relationship should be affirmed under the applicable rules of appellate review and not whether the conjoint will was of sufficient force and effect to constitute a contract which would prevent Mrs. Coffey from revoking the will and taking under the joint tenancy deed. I therefore respectfully dissent to the opinion promulgated by a majority of my associates.
The above views are predicated on the assumption that the County Court and the District Court, on appeal, would have jurisdiction to adjudicate the issues as I see them, although the question of jurisdiction may be an issue. See In re Griffin’s Estate, 199 Okl. 676, 189 P.2d 933; and Roach v. Roach, Okl., 302 P.2d 121. However, since, in my judgment, the County Court and the District Court, on appeal, would have jurisdiction to determine the issues as set forth in the majority opinion, I find it unnecessary to express my views as to jurisdiction.
I am authorized to state that BLACKBIRD, C. J., and BERRY, J., concur in the views herein expressed.