WILLS-PREFERENCE FOR VESTING UNDER JOINT AND MUTUAL WILL

Chadwick and his wife executed in 1928 a joint and mutual will containing an express agreement that it should not be changed except by the agreement of both parties. The will then devised and bequeathed unto the survivor of us . . . all of the property real or personal--of which we may die seized or possessed . . . and the survivor of us in accepting under the will shall be bound to carry out the provisions hereinafter and heretofore set forth. To have and to hold such property and and estate unto the survivor of us, for and during the natural life of such survivor. This bequest to include all property whether separate estate or [of] either of us or our community estate. After the death of such survivor it is our will and the following described property shall pass to and vest in the following persons, to wit: . . . . Then followed devises of specifically described lands to named devisees and a residuary clause in favor of the three children. Chadwick died in 1929 and the widow probated the instrument as his will, and accepted under it. It was again probated as her will upon her death in 1944. One of the children, Ora Mae, who would have taken as a specific and residuary devisee, died childless in 1937, giving all her property by will to her husband Bristow for life, remainder to her sister. The question was whether the gifts to her in the joint and mutual will, insofar as they represented gifts by the widow, lapsed at her death, or had vested in her at the death of Chadwick and passed to Bristow under her will. Held, Ora Mae received a remainder interest which vested when the widow probated and accepted under the will, and passed under her own will. Chadwick v. Bristow, (Tex. Civ. App. 1947) 204 S.W. (2d) 65; affirmed, (Tex. 1948). 208 S.W. (2d) 288.