band, Freitag, and Henrietta Ernestine Von Gans, named in the instrument as the daughter of said Ulrich and Hannah. Appellant, who is one of the children of the former marriage, and who was given by the instrument $1, with the statement that she had received other valuable consideration in advance, objected to the probate of the instrument as a will, both because it was not executed according to law, and because it was not such an instrument as could be probated as the will of Hannah Von Gans. The county court admitted the will to probate, and appellant appealed to the circuit court, where it was again admitted to probate, and this is an appeal from the order of the circuit court. The objection made to the instrument is that it is a joint will, incapable of being probated as the will of Hannah Von Gans while the other maker, Ulrich Von Gans, is living. Two persons may at the same time execute separate wills disposing of their property, and there is no legal objection to uniting the wills in a single instrument if it is such that it may take effect upon the death of one of the parties, so far as it relates to the property of that one. The fact that husband and wife devise their property reciprocally to each other by the same instrument, or that it is a joint or mutual will, does not deprive it of validity, if the will can be given effect on the death of either, so far as the property of that one is concerned. If it is of that character, it may be probated upon the death of one as his or her separate will, and, upon the death of the other, can be again proved as the separate will of the other. Unless the provisions of the instrument are such that the disposition of the property is suspended after the death of one until the death of the other, so that it cannot be executed as the separate will of the deceased party, it is no objection that there is but a single instrument. In re Davis, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771; Betts v. Harper, 39 Ohio St. 639, 48 Am. Rep. 477; Estate of Cawley, 136 Pa. 628, 20 Atl. 567, 10 L. R. A. 93; Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751.

In this case the instrument was declared by the parties to be their joint last will and testament. Hannah Von Gans was the owner of 280 acres of land, and also of an undivided one-half of 119 acres of which she and her husband, Ulrich Von Gans, were tenants in common; he owning the other undivided one-half. These lands were their only property. The will provided that the just debts and funeral expenses of the makers should be paid, including a mortgage for $10,000 on the lands, and directed that the five children to whom the lands were devised should each assume the sum of $2,000, or such equalized portion of the mortgage as might remain unpaid at the time of their death. The lands were devised to four of the children of Hannah Von Gans, excluding appellant, and to Henrietta Ernestine Von Gans, in tracts of 80 acres each, except one tract, which was 79 acres. One of the daughters was to pay to John Freitag, one of the sons, a note given to the testator and testatrix for cash loaned to her husband. The will contained the following provision: "Each parcel of said land

to pass into the possession of our devisees at our, one or the other, demise, and each devisee to pay the survivor a current rate of rent per acre on said land so devised during his or her natural life, together with the taxes, interest on mortgage," etc.

The will was written by a friend of the parties, who had been in the grocery business, and who was unskilled in such matters. They had been in the habit of trading with him, and he wrote the will from deeds furnished by them. While the forms of expression used are not the same as would have been employed by one more experienced in writing wills, we find no especial difficulty in determining the intent of the parties. By the will, each one devised his or her own property, with the provision that each parcel should pass into the hands of the devisees at the death of the owner; but such devisee was to pay to the survivor, during his or her natural life, the current rate of rent per acre, as well as the taxes and interest on the mortgage. The possession being subject to the payment of the current rate of rent, together with the taxes and interest on the mortgage, or such part as might remain unpaid, the survivor would be entitled to the full beneficial use of the land for his or her life. That beneficial use in the lands devised by Hannah Von Gans became vested in Ulrich Von Gans upon her death, and it would only come to an end, and the land be freed from the rent charge, upon his death. There is nothing in these provisions which suspended the disposition of the property or the operation of the will until the death of Ulrich Von Gans, but the instrument is, in effect, two distinct wills, which may be probated separately, and be successively proved as the separate will of each maker.

* * *

The judgment of the circuit court is affirmed. Judgment affirmed.1

STONE v. HOSKINS.

(High Court of Justice, Probate Division. [1905] P. 194.)

The plaintiffs, as executors, claimed probate of a will, dated February 1, 1904, of Emily Hoskins, who died on March 3, 1904.

The defendant, who was the husband of the testatrix, propounded an earlier will, dated November 21, 1900, and alleged that, both before. and after the marriage, he and his wife agreed to make mutual wills, and that this agreement or arrangement was carried into effect on November 21, 1900; and he further alleged that the testatrix secretly and without notice to him and contrary to the said arrangement purported to revoke her said will and to make a fresh one. He counterclaimed that the Court should pronounce against the fresh will, and, alternatively, that the executors of the later will, if the same were ad

18 See, also, Peoria Humane Society v. McMurtrie, 229 Ill. 519, 82 N. E. 319 (1907).

mitted to probate, should be directed to hold the property of the testatrix in trust for the persons benefited under the earlier will.

Sir GORELL BARNES, President.11 * * * There remains a legal point of considerable interest. These were no doubt mutual wills made in accordance with an arrangement. The testatrix departed from that arrangement and shortly afterwards died, the husband not hearing of that departure till after her death; and he now claims that in the event, which happened, of my pronouncing for the will, the executors of it should hold the property passing under it on the trusts of the arrangement.

The contention of the defendant is this-that as there was this arrangement prior to the marriage, and it has been carried out by the wills of 1900, and he has not departed from the arrangement on his part, he ought to have a declaration that matters still stand on the basis of the arrangement. On the other hand the point is made that the arrangement contemplated by its very nature a power to revoke it in certain circumstances, i. e., that it is not of the character of a settlement, and the fact that it was to be carried out by making wills) indicates its revocability. Unless the deceased died standing by her will, so to speak, she could depart from the arrangement by her husband's consent or notice given to him.// It is, I know, objected here that notice was not given. * *

indicates its revocability.

It appears to me that the result is tolerably plain. If these two people had made wills which were standing at the death of the first to die, and the survivor had taken a benefit by that death, the view is perfectly well founded that the survivor cannot depart from the arrangement on his part, because, by the death of the other party, the will of that party and the arrangement have become irrevocable, but that case is entirely different from the present, where the first person to die has not stood by the bargain and her "mutual" will has in consequence not become irrevocable. The only object of notice is to enable the other party to the bargain to alter his or her will also, but the survivor in the present case is not in any way prejudiced. He has notice as from the death. I cannot see that the cases cited support the

14 The statement of facts is abbreviated, and part only of the opinion is given.

15 "It is evident from the provisions of the mutual or joint will that this aged or infirm couple, each owning property, made said will together for the purpose of disposing of and distributing their property equitably among their children after their death, that the provisions of the will were reciprocal, and that but for these mutual bequests the parties would in all probability have made separate wills. After the death of the testatrix, her husband, William Daniel, accepted the provisions of the will in his favor, and under such circumstances equity will enforce the provisions of the will against him and all persons holding under him who took with notice of its provisions or without value. Courts have gone even further, and held that, if the survivor is threatening to dispose of his property in violation of the provisions of the will, they will grant relief by way of injunction, upon application of the children who would be prejudiced thereby." Bower v. Daniel, 198 Mo. 289, 321, 95 S. W. 347, 357 (1906).

proposition for which the defendant contends, with the result that he must, I think, fail to obtain the declaration which he seeks. I pronounce for the will of 1904.10

18 But see Turnipseed v. Sirrine, 57 S. C. 559, 35 S. E. 757, 76 Am. St. Rep. 580 (1900).

"A joint will contained in a single instrument is the will of each of the makers, and at the death of one may be probated as his will and be again probated at the death of the other as the will of the latter. Wills may be joint or mutual, or both joint and mutual. A joint will' is one where the same instrument is made the will of two or more persons and is jointly signed by them. It is not necessarily either mutual or reciprocal. 'Mutual wills may be defined as the separate wills of two persons which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal, and which shows on its face that the devises are made one in consideration of the other, These several classes of wills have some characteristics that distinguish them one from the other. A joint will which is not reciprocal is simply the individual personal will of each of the persons signing the same and is subject to the same rules that would apply if the wills were several. Mutual wills-that is, where two persons execute wills reciprocal in their provisions but separate instruments may or may not be revocable at the pleasure of either party, according to the circumstances and understanding upon which they were executed. To deprive either party of the right to revoke such mutual will it is necessary to prove, by clear and satisfactory evidence, that such wills were executed in pursuance of a contract or a compact between the parties, and that each is the consideration for the other; and, even in cases where mutual wills have been executed in pursuance to a compact or agreement between the parties, the law appears to be well settled that either party may, during the lifetime of both, withdraw from the compact and revoke the will as to him. A joint and mutual will is revocable during the joint lives by either party, so far as relates to his own disposition, upon giving notice to the other; but it becomes irrevocable after the death of one of them if the survivor takes advantage of the provisions made by the other." Vickers, J., in Frazier v. Patterson, 243 III. 80, 90 N. E. 216-218 (1909).

For discussions of joint and mutual wills, see 12 Prob. Rep. Ann. 64, note: 68 Am. Dec. 407, note; 38 L. R. A. 289, note.

By the Statute of 32 Hen. VIII, c. 1 (1540), it is provided that all ad every person and persons having manors, lands, tenements, or hereditaments "shall have full and free liberty, power and authority to give, dispose, will and devise, as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, tenements or hereditaments or any of them ['holden in socage' and two-thirds part of his said manors, lands, tenements or hereditaments 'holden by knight's service'] at his free will and pleasure; any law, statute or other thing heretofore had, made or used to the contrary notwithstanding." "

By the Statute of 34 & 35 Hen. VIII, c. 5 (1542), lands devisable were confined to "estates in fee simple only"; but a person seised in fee simple in severalty, in coparcenary or in common, "in possession, reversion, remainder, or of rents or services incident to any reversion