
    Betts v. Harper.
    Tenants in common of real estate who are also owners, severally, of personal property, may dispose of the same by will by uniting in a single instrument, where the bequests are severable and the instrument is not in the nature of a compact, but is, in effect,' the will of each, revokable by him, and subject to probate as such several will; and where the instrument is not offered for probate until the death of all executing it, the same may then be admitted to probate as the will of each and all such persons. Walker v. Walker, 14 Ohio St. 157, limited.
    Error to the District Court of Hocking county.
    Agnes Harper and Penrose Harper, sisters, domiciled in Hocking County, each owning personal property, and being owners as tenants in common of real estate in that comity, signed the following instrument, dated April 17, 1862 : “ We, Agnes Harper and Penrose Harper, of the county of Hocking, in the State of Ohio, do make and publish this our last will and testament, in manner and form following, that is to say : First, it is our will that our funeral expenses and all our just debts be first fully paid; secondly, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever ; lastly, we hereby constitute and appoint James Betts to be executor of this our last will and testament, revoking and annulling all former wills by us made, and ratifying and confirming this, and no other, to be our last will and testament.”
    This instrument was subscribed at the time of its execution by two witnesses in due form; and Agnes having died in 1872, and Penrose in 1874, the instrument was admitted to probate in the Probate Court of Hocking county, as their will, in April, 1875.
    
      In September, 1875, the- heirs-at law of Agues Harper and Penrose Harper filed a petition in the Court of Common Pleas of Hocking county, against James Betts and John D. Betts, to set the will aside. On the trial of the issue in the district court, to which the cause was appealed, the court charged the jury, in effect, that the will, being joint, was void ; to which charge the defendants below excepted. A verdict having been returned in accordance with the charge, judgment was rendered setting the will aside. To reverse the judgment for such error in the charge, James Betts and John D. Betts prosecute this petition in error.
    
      If. A. Daugherty and J. li. Qrogcm for plaintiffs in error.
    
      J. H. GolUns for defendant in error.
   Okey, J.

The construction placed by the majority of the court in Walker v. Walker, 14 Ohio St. 157, on the instrument there in question, viewed in the light of the facts existing at the time of its execution, was that the alleged will should be regarded as simply a compact, joint in form and substance, between Walker and his wife, to treat their several estates as one estate, and jointly dispose of it as such among the objects of their bounty; that it was a matter of negotiation between them, and the disposition which each made of his or her property was influenced and modified by the disposition made of the property of the other; that each devise and bequest was, in fact, made in consideration of each and all the rest; and that it was part of the compact that neither of the parties should revoke or cancel the instrument, or any part of it, without the consent of the other. Moreover, subsequently to the death of Mrs. Walker, Walker, in violation of the agreement, conveyed to others portions of his lands so devised. The majority held that the instrument was not valid as a will; and that the remedy of the devisees and legatees, if they had any, was in equity to enforce the agreement.

Assuming, as we should — more than twenty years having elapsed since the case was decided — that the instrument received the proper construction, we are not disposed to question the decision. But it is said, in the opinion, that the policy of the State, as indicated in our legislation, is opposed to joint wills; and attention is directed to the language of the wills act, which it is said plainly refers to an .instrument to be executed by one person only. It will be seen, however, that our statute is not peculiar in this respect. The provisions of the English statutes and the statutes of the various states, upon the subject, are precisely similar to our own; and the conclusion that they indicate a policy that two or more persons ' may not unite in the same instrument in making their wills, whatever the form of the instrument may be, is only reached by a rigid, and as we think, altogether unwarranted adherence to the mere letter of the statute. The provisions of the statute relating to the execution of deeds are similar, and yet nobody has ever doubted that any number of persons having ah interest in property may join in an instrument conveying it.

The case before us is unlike Walker v. Walker. vAgnep Harper and Penrose Harper were each the owner of. personal propertj’, and they were owners, as tenants in common, of real estate. Each desired to bequeath her personal property to James Betts and John D. Betts, and each desired to devise to them her undivided share of the real estate. They could unquestionably have done this by two instruments, but they could do it as effectually by one. This instrument was, in effect, .the separate will of each. Either could have revoked it, so far as it was her will. On the death of Agnes, in 1872, the instrument might have been admitted to probate as her will ■; and in 1874 it might have been admitted to probate as the will of Penrose; but in 1875 it was properly admitted to probate .as the will of both. The authorities, it.will be seen, are in some conflict, but the view we have stated is supported by reason and the manifest weight of authority. Exp. Day, 1 Bradf. 481; Diez's Will, 50 N. Y. 88; Mosser v. Mosser, 32 Ala. 551; Schumaker v. Schmidt, 44 Ala. 454; Wyche v. Clapp, 43 Texas, 544; March v. Huyter, 50 Texas, 243; Breathitt v. Whittaker, 8 B. Monroe, 530; Lewis v. Scofield, 26 Conn. 452; Evans v. Smith, 28 Ga. 98; Re Siracey, 1 D. & S. 6, 1 Jur., N. S. 1177; Re Maine, 1 S. & T. 144; Re Love grove, 2 S. & T. 453, 8 Jur., N. S. 442; and see Denyssen v. Mostert, 4 L. R. P. C., 236, 8 Moore, P. C. N. S. 502; Gould v. Mansfield, 103 Mass. 408; cf. Clayton v. Liverman, 2 Dev. & Bat. 558; Hershy v. Clark, 35 Ark., 17, 23.

Judgment reversed.  