joined by Justices Griffin and Culver, dissenting.
I agree with the court that as a logical proposition Ricks v. Smith, 159 Texas 280, 318 S.W. 2d 439 should be overruled if the judgment of the Court of Civil Appeals is to be affirmed.
In the Ricks case this Court held that “the purchase of the (United States Savings) bonds was by a contract which created a property right, — not merely a method of payment for the convenience of the Treasury Department. There is no sanctity of the community property law above that of other types of law. To give supremacy to Federal regulations no more affects community property law than laws of descent and distribution. The solution as to the property rights of the surviving co-owner of ‘or’ bonds rests in contract, and that contract becomes a part of the bonds.”
In the present case the securities in dispute, (mutual fund certificates) were issued to “W. E. Hilley and Pearl Hilley as joint tenants with full right of survivorship and not as tenants in common.”
However, instead of overruling the Ricks case, I would reverse the judgment of the Court of Civil Appeals as being contrary thereto.
When writing in opposition to a decision which overrules a case which is considered sound there is not much to be said other than that one regrets the departure of the departed. Ricks v. Smith speaks for itself. In my opinion it was supported in prin*581ciple by Edds v. Mitchell, 143 Texas 307, 184 S.W. 2d 823, 15 A.L.R. 470; Shroff v. Deaton, Texas Civ. App., 220 S.W, 2d 489, no wr. hist., and McFarland v. Phillips, Texas Civ. App., 253 S.W. 2d 953, wr. ref. n.r.e., and is in accord with the weight of American authority on the point. In the annotation following the report of Slater v. Culpepper, 222 La. 962, 64 So. 2d 234 in the American Law Reports (37 A.L.R. 2d 1216) it is said that:
“The rule followed by a majority of the courts, frequently called the ‘majority rule,’ with respect to rights in United States savings bonds registered in the names of two individuals in the alternative, upon the death of one of the co-owners, is that the surviving co-owner is vested with the sole ownership in such bonds, at least in the absence of fraud or other inequitable conduct on the part of the survivor.” (37 A.L.R. 2d 1223).
Texas is listed as one of the states following the majority rule along with California, another community property state.
One may well rest his argument upon the authorities mentioned along with the observation suggested in one of the briefs relating to the question before us:
Under modern social conditions there now exists a true family community wherein the wife upon the death of the husband succeeds to the head of the family and is conceded the competency to handle the family finances. The holding of securities under the contractual relationship here involved offers a means for the modern family to pool the husband’s and wife’s resources and keep them in a flexible state for use during the marriage and at the same time providing for unfettered passage of title of the whole to the surviving head of the family unit. There is no public policy upon which such an arrangement could infringe. In fact, public policy should be to foster such procedures.
Mr. and Mrs. Hilley purchased shares in the issuing corporations which carried with them certain contract rights which accrued to them as certificate holders. The rights which they acquired by contract and purchase were similar to those held by owners of the common law estate of joint tenancy, notably the right of survivorship. While at common law agreements attempting to “alter the legal orders of descent” were not sanctioned, Protzel v. Schroeder, 83 Texas 684, 19 S.W. 292, 294, it was never considered that agreements giving rise to joint tenancies were comprehended by the rule. The right of survivorship arose with the purchase and acquisition of the title, and such expectancies *582as the heirs of either of the parties may have had were deflected, so to speak, by the contractual consequences incident to and a part of the property rights acquired. While the contractual interest to the property acquired was not a technical common law estate, the right of survivorship was clearly expressed and that is the matter with which we are here concerned. The right of the survivor to take the property upon dissolution of the marriage by death had its genesis in and arose from the contract of purchase. To receive and accept property under such arrangement is no more violative of the community property scheme of things than the purchase of a life estate with community funds would be. For property to be community it is not essential that it be held in fee simple. It is not required that the interest of the person who dies first should pass to his or her heirs, absent a valid testamentary provision. The clear import of the Ricks case supports these statements. I believe them to be sound and in accordance with an enlightened policy which in the absence of fraud would allow persons to freely contract and choose the species of property which they wish to possess. Accordingly, I dissent from the court’s action in overruling Ricks v. Smith.
I am further in disagreement with the court upon its holding that an agreement between husband and wife complying with the provisions of Article 46 of the Probate Code is insufficient as a tjasis for a right of survivorship in property purchased with community funds.
In Chandler v. Kountze, Texas Civ. App., 130 S.W. 2d 327, 328, wr. ref., it appeared that Texas Land & Cattle Company conveyed various tracts of land to Charles T Kountze and Luther L. Kountze “as joint tenants, with all the rights of such tenants at common law including the right of survivorship.”
The Court of Civil Appeals held that:
“While the wording of Article 2580 indicates a legislative intent to abolish the relationship of joint tenancy where it would otherwise have been created by law, including the common-law doctrine of survivorship, there is nothing in the subject matter of the act which would, in our opinion, justify the presumption that the legislature intended to thereby prevent the parties to a contract, a will, or a deed of conveyance, from providing among themselves that the property in question should pass to and vest in the survivor as at common law.”
After a rather exhaustive consideration of the American au*583thorities, the court concluded that the provisions relating to survivorship were not void as being in contravention of the statute, “but that such provisions are valid and enforcible as the clearly, expressed intention and desires of the contracting parties.”
This court refused a writ of error in the case and its soundness, as applied to the factual situation then before the court, has never been questioned.
The substance of Article 2580 now appears in Article 46 of the Probate Code, viz:
“Where two ore more persons hold an estate, real, personal, or mixed, jointly, and one joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained. Provided, however, that by an agreement in writing of joint owners of property, the interest of any joint oioner who dies may be made to survive to the surviving joint owner, or joint owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.”
The proviso above italicized was added in 1955 at the time of the adoption of the Probate Code.
In adopting this proviso, the Legislature undoubtedly had in mind the decision in Chandler v. Kountze and legislated in regard thereto. The wording of the proviso is that joint owners may provide by an engagement in writing that the interest of any joint owner who dies may be made to survive to the surviving joint owner. It is not here disputed that at the time of inception of title; there was an agreement providing that the mutual fund shares involved should be held subject to the “full right of survivorship” of the surviving joint owner. It seems therefore that we have direct statutory authority for the issuance of the form of security involved in this case.
It is the position of the court that while the holding of Chandler v. Kountze and the proviso of the statute above quoted may apply to properties purchased by husband wife using monies from their separate estates, they cannot be applied to properties purchased with community funds. It is contended that a husband and wife must first partition community property, as permitted by Article 16, section 15 of the Constitution and Article 4624a, Ver*584non’s Ann. Texas Stats., before they may purchase securities of the type here involved, namely those carrying a valid contractual provision for the right of survivorship.
The court’s holding seems to be that the use of community funds to purchase survivorship contracts in some way interfere with the provisions of Article 4610, Vernon’s Texas Stats., which expressly proscribes pre-nuptial agreements altering the legal orders of descent and by implication render invalid post-nuptial agreements which would have that effect.
Despite the provisions of Article 4610, this Court has held that mutual wills based on contract are enforceable in this State, in Weidner v. Crowther, 157 Texas 240, 301 S.W. 2d 621, 625, this court said:
“The mutual will of Hugo and Sophie Weidner was not rendered invalid by Article 4610. Of equal dignity with Article 4610 is the statute which permits every person, competent under the provisions thereof, to dispose of his property by will, Texas Probate Code, sec. 57, V.A.T.S. Article 8281, Revised Civil Statutes of Texas 1925, repealed by adoption of the Probate Code.”
See also, Graser v. Graser, 147 Texas 404, 215 S.W. 2d 867.
Can it not be said with equal logic that a written agreement providing for contractual survivorship with reference to property is not rendered invalid by Article 4610? Of equal dignity with Article 4610 is the statute which permits joint owners of property by agreement in writing to provide that the interest of any joint owner who dies may be made to survive to the surviving joint owner or joint owners. I believe it can and would so construe the statutory enactments involved. On this basis as well as the rule of Ricks v. Smith, survivorship agreements should be upheld.
For the reasons set forth, I respectfully dissent from the order affirming the judgment of the Court of Civil Appeals.
Opinion delivered January 25,1961.
Rehearing overruled March 1,1961.