Horton v. Cronley , 1953 Okla. LEXIS 683 ( 1953 )

WILLIAMS, Justice

(concurring in part and dissenting in part).

In the case of Tucker v. Zachary, Okl.Sup., 269 P.2d 773, this court considered along with the other facts and circumstances that Mr. and Mrs. Smith had attempted the execution of a joint will in favor of their foster daughters as some evidence of contract between themselves to make such a will.

Paragraph 3 of. the, syllabus of the majority opinion herein I believe to be patently distinguishable from1 the same numbered paragraph of the court’s syllabus in Paull v. Earlywine, 195 Okl. 486, 189 P.2d 556.

Except as hereinafter indicated, I am obliged to concur in the opinion of the majority.

However, I am unable to agree that the so-called “worthier title” doctrine has any application to the cáse at bar.

The “worthier title” doctrine is in substance that where there is a devise or bequest to heirs or next of kin of what the law would give them if there were no will, they take under the “worthier title”, by descent or under the statute, and not under the will, the devise or bequest .being regarded in such case as void and ineffectual. To render this rule applicable, however, the share or estate given by the will must be identical in quantity and quality with that given by law. 26 C.J.S., Descent and . Distribution, § 44, P, 1046.

We said in Beamer v. Ashby, 204 Okl. 530, 231 P.2d 668,

“We have not had occasion to adopt or reject the ‘worthier title’ doctrine, and it is not necessary to do so in this case. In order for this rule to be ap-' plicable, the shafé or estate given ■ by the will must be identical in quantity- and quality to that given by law.”

The majority opinion very plainly points out that Henrietta, the surviving spouse, did not receive the identical estate under the will that she received under the law. Under the will she received a life estate only, whereas, under the statute of descent and distribution she took the full fee simple title to the property in issue. The estate given by the will not being identical in quantity and quality to that given by law, the “worthier title” doctrine has no application.

To this extent, I therefore respectfully dissent.