(concurring in part and dissenting in part).
This suit was brought by appellants, brothers and sister of appellee, all of whom are the sole and surviving children of Juan A. Gonzalez and Isabel M. Gonzalez, deceased, for partition and distribution of properties devised to appellants and appellee under the joint and mutual will of their said parents, for an accounting, damages, injunctive relief, removal of appellee as independent executor and appointment of a receiver.
After certain preliminary proceedings, both appellants and appellee filed motions to sever. At a pre-trial hearing the lower court, apparently after amendment of the pleadings which raised additional questions concerning declaratory judgment and construction of the will, entered an order which in part found “ * * * that the cause of action for declaratory judgment and construction of the Will is a separate and distinct case of action from the other claims in such suit * * * ” and decreed that the cause of action of all parties as it related to the construction of the will be severed and docketed separately and that copies of the trial pleadings along with a copy of the Order of Severance be placed in the file of the severed cause. The judgment of the trial court entered on May 29, 1969, recites in part that “ON THE 26th day of May, 1969, in keeping with the previous order of severance made and entered in the original suit filed herein, this Court began the consideration of the application for a declaratory judgment to construe the joint will of Juan A. Gonzales and Isabel M. Gonzales * * * ” and that “It is the order, judgment, and decree of the Court that the following is the construction which should be placed upon such will: * * * ” The majority opinion sets out the material portions of the will and the judgment of the lower court.
The questions involved are not fully stated in the majority opinion. In my view, the questions presented on this appeal are those contained in appellants’ twenty-seven points of error. Appellants’ points may be generally divided into the following six categories and summarized as follows: (1) Appellants’ points 1-10, which assert in substance that the judgment of the trial court completely failed to construe the will of Juan A. and Isabel M. Gonzalez, or, at best, construed it only partially; and that the trial court erred in making or failing to make certain holdings in connection with construction of the will; (2) Appellants’ points 11-16 and 18-21 which assert in substance that the trial court erred in failing to order a partition and distribution of the properties belonging to the parties, or in making or refusing to make certain holdings in connection therewith; (3) Appellants’ point 17, which asserts that the trial court erred in refusing to grant their motion for summary judgment ; (4) Appellants’ point 22, which asserts that the trial court erred in holding that there can exist “but one (and not two) estates in this case” or under the joint will of Juan A. and Isabel M. Gonzalez for the reason that such will, as the will of Juan A. Gonzalez, by paragraph V thereof devised a ⅛ undivided interest of the joint property of Juan A. and Isabel M. Gonzalez to Isabel M. Gonzalez and devised an undivided %ths of said joint property to appellants and appellee, subject to a life estate in Isabel M. Gonzalez, and said will, as the will of Isabel M. Gonzalez, devised an undivided i/s of said joint property to appellants and appellee, thereby creating two separate and distinct estates; (5) Appellants’ point 23 which asserts that the trial court erred in holding that section 152 of the Probate Code of Texas is available to appellants to compel the distribution of said estate or estates for the reason that the provision mentioned has no application, and the Pro*450bate Court has no jurisdiction to compel a distribution of said estate or estates; (6) Appellants’ points 24-27 which assert that the trial court erred in failing to appoint a receiver to take possession of the properties owned by the parties pending partition and distribution.
Paragraph Number I of Appellants’ Original Petition in the severed cause reads as follows:
“Plaintiffs and Defendant are the only and surviving children of Juan A. Gonzales, deceased, and Isabel M. Gonzales, deceased, and are the sole beneficiaries under the joint and mutual will of Juan A. and Isabel M. Gonzales, Deceased, husband and wife, and Plaintiffs are seeking a declaratory judgment, as provided in Article 2524-1, for the construction of the Last Will and Testament of Juan A. and Isabel M. Gonzales, and for other relief as hereinafter set out.”
In Paragraph VII of Appellants’ said petition they allege their construction of the will in eight separate sub-paragraphs, and there are allegations in other sections of their petition relating to appellants’ position in connection with construction of the will. Appellee’s First Amended Original Answer and Cross-Action, filed in the severed cause, (subject to various pleas, including one to the jurisdiction of the Court), also alleged his construction of the will and asserted that the court should enter declaratory judgment as prayed for by him.
Article 2524-1, V.A.C.S. (Uniform Declaratory Judgments Act) reads in part as follows:
“Sec. 2. Any person interested under a * * * will, * * * whose rights, status, or other legal relations are affected * * * may have determined any question of construction or validity arising under the instrument, * * * and obtain a declaration of rights, status, or other legal relations thereunder.”
* * * * *
“Sec. 4. Any person interested as * * * devisee, legatee, * * * or cestui que trust, in the administration of a trust, or of the estate of a decedent, * * * may have a declaration of rights or legal relations in respect thereto:
n “(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.”
* * * * * *
“Sec. 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.”
Some of the difficulties on this appeal are occasioned by the findings of the trial court that “the terms of such will are not ambiguous” and “the Court finds no need to construe those parts of such will that are not matters of controversy.” The trial court did not specifically find what matters were not in controversy and it is extremely difficult to determine from the record the subjects which might be included in the finding. In the severed proceeding, appellants plead rather fully their cause of action for declaratory judgment and construction of the will. However, appellee’s responsive answer in that case began with a general denial and was followed by rather restricted allegations as to construction of the will. I agree with appellants’ position that, at best, the judgpient of the trial court amounted to only a partial construction of the will. It is apparent to me from an examination of the record in the severed cause that the judgment of the trial court does not fully determine the questions of construction or validity arising under the will, nor does it fully declare the rights, status or legal relations arising under that instrument, as might have been done under Art. 2524-1, V.A.C.S.
In my view there are several essential matters established by the record which when placed in context and given proper *451effect permit this Court under applicable principles of law to reform or expand the judgment of the trial court so as to afford declaratory judgment relief which may furnish guidance to the trial court and the parties in connection with final disposition of the case. These matters and the holdings I would make in connection therewith are as follows:
1. The will in question is a joint and mutual will, contractual as well as testamentary. See Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957).
2. There is but one will here involved. There is no question here of a second separate will executed by the surviving testator. Whatever property Isabel M. Gonzalez owned at her death — whether acquired under the joint and mutual will or after the death of Juan A. Gonzalez, her husband — passed to the beneficiaries under her will. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954) is not in point here on the question of property acquired in her individual right by the surviving testator after the death of her husband who was the other testator of a joint and mutual will. In the cited case the Supreme Court specifically held as follows:
“ * * * We find no language in the 1928 will evidencing an intention to dispose of the estate owned by the survivor at death, and we therefore hold that only the property owned by B. H. Murphy and Annie E. Murphy — either or both, at the time of the death of B. H. Murphy — was within the terms of the 1928 will. As to all property acquired by Annie E. Murphy in her individual right after B. H. Murphy’s death, she had the full right of ownership and power to dispose of the same by will or otherwise as she saw fit.”
In the instant case, as above stated, there is not only the absence of a second separate will by the surviving testator, but the joint and mutual will of Juan A. and Isabel M. Gonzalez, in Paragraph V thereof expressly provides “and the surviving spouse devises and bequeaths all of his or her estate under their seven (7) children in equal parts.”
3.The interests of the seven children of the testators were vested at the time of death of Juan A. Gonzalez to the extent of an undivided ⅛ interest each in all of the properties then owned by the testators, but the children did not have a right of possession at the earliest until after (1) the surviving testator (Isabel M. Gonzalez) died, and (2) the beneficiary attained 21 years of age, and (3) the beneficiary made demand for his share of the estate. The actual ⅛ interest to be received by each beneficiary is, of course, subject to the administration and the expenses thereof on the estate of Juan A. Gonzalez, and subject to the other provisions . of the will, particularly Paragraphs VIII and IX thereof to the extent the authority therein was exercised. Even where the above-mentioned three conditions are satisfied, it appears that, as a practical matter, the actual possession of appellants’ interests might be delayed because of the dispute which has arisen between appellants and appellee as is evidenced by the institution of this suit. The record herein demonstrates the existing controversies between appellants and appellee concerning the basis, manner and means for partition and distribution of the properties belonging to them under the joint and mutual will of their parents, and particularly under Paragraph VII thereof. The district court has jurisdiction and ample authority to resolve such issues between the parties in this case. See Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980 (1933); Hutcherson v. Hutcherson, 135 S.W.2d 757 (Tex.Civ.App., Galveston, 1939, wr.ref.). In the latter case the court said in part:
“The Supreme Court in the case of Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, in an opinion by Chief Justice Cureton, in passing on the exact question presented in this appeal announced the rule that the district court *452has jurisdiction of a suit brought against an independent executor for the recovery of property, both real and personal, alleged to belong to an estate and withheld from the assets of the estate, and to determine the ownership of such property, and to decree a partition thereof, as well as the other property of the estate, among those entitled thereto, and that the probate court has no jurisdiction of controversies between an independent executor and the devisees under the will.”
4. In addition to the interests of the seven children which vested in them at the time of the death of Juan A. Gonzalez, as mentioned in the preceding paragraph, each of them is also entitled under the joint and mutual will, as legatees and devisees, to receive a ½⅛ undivided interest in and to all property owned by Isabel M. Gonzalez at the time of her death, irrespective of when or how she acquired the ownership of it, subject to administration of her estate in accordance with law and the terms of the will.
5. Isabel M. Gonzalez did not acquire a life estate in the % undivided interest of the joint property devised and bequeathed to the seven children of the testators upon the death of Juan A. Gonzalez. Although Isabel M. Gonzalez was granted extensive rights of possession and control of said ⅞ interest under the joint and mutual will, the provisions thereof do not create a life estate in her. In this respect I agree with the holding of the majority opinion. This holding does not in any way detract from the conclusion that Isabel M. Gonzalez acquired a ⅛ undivided interest in all of the properties owned by her and Juan A. Gonzalez at the time of his death.
6. The majority opinion, in the next to last paragraph thereof, states in part:
“There were two estates under the joint will and both could be probated. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (Tex.Sup.1946). The first was the trust left by the husband Juan A. Gonzalez. This consisted of the properties owned by Juan A. Gonzalez and Isabel M. Gonzalez at the time of his death. The second was the property, if any, acquired by Isabel M. Gonzalez in her individual right after Juan A. Gonzalez’ death and which she may have accumulated as beneficiary under the trust or otherwise. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (Tex.Sup.1954). The trust estate was not a part of Isabel M. Gonzalez’ estate.”
I have been unable with certainty to ascertain the meaning and effect of the quoted statements. I have heretofore pointed out that Murphy v. Slaton is distinguishable from the instant case. This does not in any way question the applicable law announced or reiterated in that decision. There is but one joint and mutual will in this case and there is no second separate will executed by the surviving testator as in Murphy v. Slaton; and the will here expressly disposes of the properties of both testators regardless of which one dies first. I cannot reconcile the statement that “The trust estate was not a part of Isabel M. Gonzalez’ estate” with the sentence preceding it and with other language in the majority opinion relating to the alleged creation of a testamentary trust by Juan A. Gonzalez. I further do not see any necessity for the holding in the majority opinion that a testamentary trust was created by the will here involved. As a practical matter the holding may not make any substantial difference (except possibly for expenses of administration and related matters). Section 37, Texas Probate Code, as amended in 1969, and its predecessors have for many years provided in substance that when a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees; and that the executor or administrator shall have the right to possession of the estate as it existed at the death of the testator or intestate; and that the *453executor or administrator “shall recover possession of and hold such estate in trust to be disposed of in accordance with law.” (Emphasis supplied.)
In my view, the authorities dealing with the rules applicable to joint and mutual wills, those which are contractual as well as testamentary, are of much more assistance in the instant proceeding than is reliance upon a separate testamentary trust theory. See Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957); Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948); 61 Tex.Jur.2d, Wills, Section 119, pages 237-241; Southwestern Law Journal, Vol. 23, No. 1, page 18, March 1969.
The foregoing discussion relates primarily to appellants’ points 1-10 and some of the contentions under their point 22. I would reform the judgment of the trial court in the respects mentioned and render declaratory judgment accordingly.
With reference to appellants’ remaining points of error, particularly those concerning partition and distribution, it appears from the final order of the trial judge that he was of the opinion that such issues should not be reached in the severed proceeding then before the court. It may well be that the trial court concluded that the questions involved in the severed matters remaining for disposition could be resolved when such questions were reached at the trial on the merits without the necessity of declaratory relief. In the absence of a showing of abuse of discretion, I believe the action of the trial court involved in appellants’ remaining points does not present reversible error.
I concur in the holdings of the majority opinion to the extent that I have expressly agreed with the same. To the extent that I have disagreed with such holdings, I respectfully dissent.
I would reform the judgment of the trial court in the respects herein indicated, and as reformed, would affirm it.