Cole v. Shelton, 169 Ark. 695 (1925)

Oct. 26, 1925 · Arkansas Supreme Court
169 Ark. 695

Cole v. Shelton.

Opinion delivered October 26, 1925.

*696Roy D. Campbell, J. F. Summers and J. F. Sumxmers, Jr., for appellant.

W. T. Trice and Ed Trice, for appellee.

Hart, J.,

(after stating the facts.) The record shoAVs that the will in question Avas signed by Samuel Shelton and Catherine Shelton, his Avife, and was to take effect after the death of the survivor. The real estate devised by the will was the property of Samuel Shelton, and his wife only had a dower and homestead interest therein. It was agreed that the aao.11 Avas in- proper form and is not a forgery.

The sole ground relied upon for a reversal of the judgment is that the instrument in question is the .joint will of Samuel Shelton and Catherine Shelton to take *697effect upon the death of the survivor, and is void under the principles of law decided in Hershy v. Clark, 35 Ark. 17.

We do not think the principles of law there decided are controlling under the facts in the case at bar. In that case Abram and Aaron Clark, brothers, had by their joint industry acquired a large amount of personal and real estate, which they held as tenants in common. The brothers entered into a mutual obligation in writing in which each conveyed to the survivor all of his interest in their joint property. Abram died first, and Aaron took charge of their joint property as owner. He made a will giving to his mother and his sister Sarah all of his real estate in two counties. His mother and his sister Sarah took possession of the property under his will after his death. 'Subsequently they executed a joint will in which they 'devised the property they had received under the will of Aaron Clark to various persons.

The court held that the joint instrument between Abram and Aaron Clark and the joint will of Nancy and Sarah Clark should both have been disregarded. Following the common law, the court held that there could be no such thing as a joint will to take effect on the death of the survivor. Ini each instance, the persons attempting to execute the joint will were the owners of the property intended to ,'be devised as tenants in common, and intended that the will devising their joint property should take effect upon the death of the survivor. Such an instrument can not be proved as the separate will of either of the supposed testators, because it disposes of their joint property, and because it implies an agreement between them which is inconsistent with its revooability and therefore prevents its operation as a will.

In the case at bar, however, the property disposed of in the will was not the joint property of Samuel and Catherine Shelton, but belonged to the husband. The wife had no interest whatever in the property, except a dower and homestead right. Therefore, the instrument may be sustained as the will of the husband. The wife, *698having nothing on which the will could operate, is held to he a mere .cipher in the transaction!. The will is that of the ¡husband in the same manner as though the wife had not signed it, and her acts in the premises must be rejected as 'surplusage. Her joinder in the execution of the will could have no effect upon the power of the husband to legally dispose of his own property. The will is that of the husband in the same manner as though his wife had not signed it. In re Rogers, 11 Me. 303, and Allen v. Allen, 28 Kan. 18, and cases cited.

The title to the property became vested by the terms of the will, and the delay in probating it did not render the provisions of the will void. Moreover, L. L. Cole, the remonstrant, has no interest in the property under the views we have expressed, and therefore has no right to object to the probate of the will.

It follows that the decision of the circuit court was correct, and must be affirmed.