(dissenting).
The majority opinion here so misconstrues the facts and law in this case I am compelled to dissent.
This is not an involved case as far as the facts are concerned. Joseph Charles Dean married Julia Finnegan on the 11th day of October, 1899, at Louisville, Kentucky. Of this marriage one child, Marie Katherine Dean, now Jelsma, was born on December IS, 1900. Soon after 1900 the family moved to Shawnee, Oklahoma, where Mr. & Mrs. Dean engaged in the bakery business. The Deans accumulated some property. On May 7, 1919, Julia Finnegan Dean died. She left no estate. In August of the same year, Mr. Dean with his daughter moved to Oklahoma City and lived at 627 East Park Place. Marie Katherine Dean continued to live at this address until April, 1924, when she was married to Henry Jelsma and moved to another address.
On October 27, 1922, J. C. Dean in contemplation of marriage to Mary Kahanek, entered into an ante-nuptial agreement with Mary Kahanek. Marie Katherine Dean, now Jelsma, while a contingent beneficiary under this agreement, was not a party to it and did not sign it.
Mary Kahanek and J. C. Dean were married as contemplated and on December 9, 1922, J. C. Dean made and executed a will in which he incorporated the ante-nuptial contract and cancelled all previous wills.
On November 17, 1929, J. C. Dean and' Mary Kahanek after the birth of two sons both living, cancelled in writing the ante-nuptial agreement of October 27, 1922. On this same date J. C. Dean executed a new will cancelling all previous wills and rati-' fied the agreement cancelling the ante-nuptial agreement. Thereafter on May 3, 1938, after two more children, a boy and girl, had been born to J. C. Dean and Mary Kahanek Dean, J. C. Dean executed a new will in which he recognized all five of his children. On May 28, 1954, J. C. Dean died at the age of 87 years.
Plaintiff sued her step-mother individually and as executrix of her father’s estate and her three half-brothers and one hal'f-sister for one-half of all property, real and personal, that her father owned at the time of his marriage to Mary Kahanek and one-half of all increase thereof. The trial court rendered judgment for the plaintiff which gave her- one-half interest in all property shown in the ante-nuptial agreement and all increase that might be traceable to it.
The evidence fails to disclose that plaintiff’s mother had any property in her name at her death. Everything was in the father’s name. It was never necessary for any of the property that J. C. Dean had at the death of plaintiff’s mother to go through the probate court as the property of his wife. It was all his to do with as he pleased.
It is true that the father, J. C. Dean máde an ante-nuptial agreement with Mary Kah-anek in which plaintiff was mentioned. It is well settled that a marriage settlement or ante-nuptial agreement may be revoked *608by the consent of the parties which was done in this case. For the right to revoke see 41 C.J.S. Husband and Wife § 109 and 26 Am.Jur. Husband and Wife, Section 302. The Kansas cases relied upon by the majority to the effect that J. C. Dean and Mary Kahanek Dean could not revoke the ante-nuptial agreement as to Marie Jelsma do not sustain their position. Hagerman v. Hagerman, 160 Kan. 742, 165 P.2d 431, involved an agreement entered into by a- married man with his mother and had nothing to do with an ante-nuptial agreement. In re Greenleaf’s Estate, 169 Kan. 22, 217 P.2d 275, was a case where a widower, a grown daughter of his and his prospective second wife entered into an ante-nuptial agreement signed by the three, an element that does not exist in the case at bar. This case recognizes the right of the parties to ante-nuptial agreements to revoke the same. More especially would this be true where the ante-nuptial agreement itself contemplates such a possibility and certainly Marie Jelsma did not take as a purchaser in this case.
J. C. Dean at no time placed his property under the control of Marie Katherine. He at no time recognized that she had any right in the property that he owned at his first wife’s death. He never at any time placed his property beyond his control and specifically provided that the property should be returned to him if he and Mary Kahanek were to separate. Any right that Marie Katherine got from the ante-nuptial agreement was purely contingent upon the happening of certain events which never happened prior to its revocation. Marie Katherine was never a party or a necessary party to the agreement between J. C. Dean and Mary Kahanek and it was not a family settlement.
Marie Katherine contends that she did not know of the revocation of the ante-nuptial agreement. She was not entitled to know of it. As far as she was concerned it was nothing more than a will and could be revoked at any time by the parties to it. She had expended nothing in order to be mentioned in the agreement.
The terms of the ante-nuptial agreement provided that in case the parties had children provision would be made for them as provided by law or will, which is made plain in this paragraph of the agreement:
“That if there are any direct blood descendants, heirs of the said husband and wife, inheriting through both of them jointly, said heirs shall share first as provided for them by law or will made by the said Joseph Charles Dean at any time, and then the property remaining shall be disposed of in accordance with all the provisions and purposes of this contract and the said will; and of the said will and the said contract the said will shall prevail.”
It clearly showed that plaintiff was not to take one-half of the property owned by J. C. Dean at the time of the death of his first wife.
I submit that no irrevocable trust was ever created for plaintiff. The only interest that the plaintiff could have in the property her father had in his name when her mother died would have been a one-fourth of the entire estate as certainly her mother would have had but a half of the estate if it was jointly acquired and in the name of both father and mother. Certainly the husband would have received half of her estate on her death. But here the entire accumulations of J. C. Dean and his first wife were in J. C. Dean. When he married Mary Kahanek everything he owned at the first wife’s death was in his name. It continued to be his property. Marie Katherine Jelsma was not deeded any of the property. Neither was the ownership of any personal property in the name of the first wife.
In the case of Jones v. Farris, 180 Okl. 341, 69 P.2d 344, we held as follows:
“Where property jointly acquired during coverture is of record in the name of the husband, no question of resulting trust being involved, and the husband is still living, and the wife has taken no steps to determine her interest therein, it is not such a vested *609interest in her as will descend to her children upon her death intestate during- the lifetime of her husband, so as to reduce his interest therein.”
This case was tried as one of equitable cognizance. In such case it is our duty to weigh the evidence and render that judgment that should have been rendered. It is impossible for me to see under the evidence how any Chancellor would give one child a lion’s share as was done in this case. It is plain that all the property appearing in J. C. Dean’s name at his first wife’s death was his and the only possible claim Marie Katherine Jelsma could assert to the property must be by the ante-nuptial agreement.
There is nothing in the ante-nuptial agreement that indicates in any way that J. C. Dean considered that Marie Katherine owned any interest in the property when the agreement was executed.
I have read the record and there is no evidence shown that would sustain the conclusion of facts and law that the trial court entered in this case. The only evidence that plaintiff had was her own made by deposition and the man from whom J. C. Dean purchased the Capitol Furniture Company and a friend who lived neighbors to the plaintiff and her father before plaintiff’s marriage. The plaintiff testified that her mother told her “that what was hers was mine.” I submit that this is no evidence that the half of the property that stood in the name of J. C. Dean belonged to his first wife. Neither is there any evidence that Marie and her father entered into a family agreement, the statement in the majority opinion to the contrary notwithstanding.
At no time did J. C. Dean acknowledge that any property belonged to Marie. He was said to have stated that she had a store which could only mean that it would go to her if he died. This whole picture changed when he married the second time.
The demurrer to the evidence by defendants or motion for judgment by the defendants should have been sustained as there is no evidence that would sustain the judgment rendered by the trial court in this case. I dissent.
I am authorized to state BLACKBIRD, J., concurs in the views expressed herein.