Holt, J.
George Brookhyser died intestate November 22, 1949, leaving as survivors, his widow, Susie, and his brothers and sisters, appellants here. George had been twice married, his first wife having died May 25, 1949. He married Susie August 25, 1949. On November 4, 1949, George (then 70 years of age) attempted to convey real property (“The Gem Tourist Court” in Spring-dale) from himself to Susie and himself as tenants by the entirety.
At the time of his death, George also owned a 1941 Dodge automobile and certain household goods. Susie traded the car for another, receiving credit for $295. She sold the tourist court, residence and furnishings to appellees, Arthur and Elsie Boone, husband and wife, for $10,000.
The present suit was filed June 20, 1950, in which appellants alleged, in effect, “that tlie deed from George to himself and Susie, as tenants by the entirety or as an estate of survivorship was a nullity; that it was procured by fraud, coercion and undue influence; that the deed was not, in fact, acknowledged and that it should be stricken from the records; and that the title to the lands should be vested in appellants, subject only to the widow’s homestead and dower and payment óf the debts of the estate.”
Appellees answered with a general denial, and Susie alleged that she owned the fee by virtue of the above deed of November 4, 1949, and pleaded estoppel. Elsie and Arthur Boone alleged that they ivere innocent purchasers for a valuable consideration.
The trial court found that the deed above from George to George and Susie “created an estate by the entirety subject to the rights of survivorship belonging to said estate, and that it was the intention of the deceased, George Brookhyser, to create an estate by the entirety with the survivor to take the fee.
“The Court finds further that on said date the deceased, George Brookhyser, delivered said deed to Susie W. Brookhyser and that she accepted said deed and remained in possession of said lands and real estate as aforesaid.
“The Court further finds that her husband, George Brookhyser, would have been estopped in his lifetime, he having died November 22, 1949, in Washington County, Arkansas, to question her rights as an owner of said estate by the entirety, and that the plaintiffs, and each of them, as his heirs are likewise so estopped to claim any right, title or interest in and to the above described real estate and lands. ”
The Court also found that Susie had converted personal property to her own use and its reasonable value was $975, for which amount decree was entered against Susie. This appeal followed.
The deed abov$ contained the following recital: “That we, George Brookhyser and Snsie W. Brookhyser, his wife, for and in the consideration of the sum of One Dollar and other Value Considerations, to us paid by George Brookhyser and Susie W. Brookhyser, Husband and Wife, do hereby grant, bargain and sell unto the said George Brookhyser and Susie W. Brookhyser, Husband and Wife, or the survivor in the Entirety, and unto their heirs and assigns, _ the following described land, situate in Washington County, State of Arkansas, to-wit: (describing it).
“TO HAVE AND TO HOLD the said lands and appurtenances thereunto belonging unto the said George Brookhyser and Susie W. Brookhyser, Husband and Wife, with right of survivorship and unto their heirs and assigns, forever. And we, the said George Brookhyser and Susie W. Brookhyser, hereby covenant that we are lawfully seized of said land and premises; that the same is unincumbered, and we will forever warrant and defend the title to the said lands against all legal claims whatever.
“And I, the said Susie W. Brookhyser, wife of George Brookhyser, in consideration of said sum of money, do hereby release and relinquish unto the said George Brookhyser and Susie W. Brookhyser, Husband and Wife, with the right of survivorship or the survivor in the entirety, all my interest, right, title and dower and convey my homestead in and to said lands.
“WITNESS hand and seal on this 4th day of Nov., 1949. (Signed) George Brookhyser (Seal) Survivor Susie (Seal).” The deed was recorded and there was evidence that it was delivered to Susie.
1.
We consider first appellants’ contention that George lacked mental capacity to execute the deed. We cannot agree. There was evidence that while George was bed-fast and was practically helpless physically, he was mentally alert, at the time he signed the deed. Before its execution, George made several requests for his friend, L. E. Wiggins, a real estate dealer in Springdale, to come to his home and prepare the deed. When Wiggins came, George gave him an old deed from which to copy the description and other relevant information. Wiggins then returned to his office and prepared the deed. After a few days, Wiggins returned, George signed the deed and directed Wiggins to record it. A few days later, Wiggins recorded the deed and returned it to George who delivered it to Susie. Of some significance is the fact that George signed the deed “Survivor Susie” as indicating that he realized what he was doing, that he was perhaps near death, that Susie would probably survive him, and he wanted her to have this real estate.
While appellants offered testimony tending to contradict appellees, we cannot say, when all the evidence is considered, that the findings of the trial court were against the preponderance thereof.
On this issue of mental capacity, the governing rule has been many times announced by this court. In the comparatively recent case of McKindley v. Humphrey, 204 Ark. 333, 161 S. W. 2d 962, we said: “If the maker of a deed, will or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interests in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness whether produced by old age or through physical infirmities will not invalidate an instrument executed by him. (Citing cases.)”
2.
Next, appellants say that the acknowledgment on the deed is void and that the deed was of no effect and should be stricken from the deed records of Washington County. The answer to this contention is the well settled
rule that an unacknowledged deed is good between the parties. We said in McSwain v. Criswell, 213 Ark. 775, 213 S. W. 2d 383: “An unacknowledged deed is good between the parties. Jackson v. Allen, 30 Ark. 110. Hence, the allegation and testimony as to the irregularity of the acknowledgment are not of importance except as they may shed light on the real issue in the case, which is : Did M. O. McSwain, being of sound mind, execute the deed and bill of sale?”
3.
Appellants argue with considerable force that the deed here in question from George to George and Susie did not create an estate by the entirety and was in fact a nullity.
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Holt, J.
George Brookhyser died intestate November 22, 1949, leaving as survivors, his widow, Susie, and his brothers and sisters, appellants here. George had been twice married, his first wife having died May 25, 1949. He married Susie August 25, 1949. On November 4, 1949, George (then 70 years of age) attempted to convey real property (“The Gem Tourist Court” in Spring-dale) from himself to Susie and himself as tenants by the entirety.
At the time of his death, George also owned a 1941 Dodge automobile and certain household goods. Susie traded the car for another, receiving credit for $295. She sold the tourist court, residence and furnishings to appellees, Arthur and Elsie Boone, husband and wife, for $10,000.
The present suit was filed June 20, 1950, in which appellants alleged, in effect, “that tlie deed from George to himself and Susie, as tenants by the entirety or as an estate of survivorship was a nullity; that it was procured by fraud, coercion and undue influence; that the deed was not, in fact, acknowledged and that it should be stricken from the records; and that the title to the lands should be vested in appellants, subject only to the widow’s homestead and dower and payment óf the debts of the estate.”
Appellees answered with a general denial, and Susie alleged that she owned the fee by virtue of the above deed of November 4, 1949, and pleaded estoppel. Elsie and Arthur Boone alleged that they ivere innocent purchasers for a valuable consideration.
The trial court found that the deed above from George to George and Susie “created an estate by the entirety subject to the rights of survivorship belonging to said estate, and that it was the intention of the deceased, George Brookhyser, to create an estate by the entirety with the survivor to take the fee.
“The Court finds further that on said date the deceased, George Brookhyser, delivered said deed to Susie W. Brookhyser and that she accepted said deed and remained in possession of said lands and real estate as aforesaid.
“The Court further finds that her husband, George Brookhyser, would have been estopped in his lifetime, he having died November 22, 1949, in Washington County, Arkansas, to question her rights as an owner of said estate by the entirety, and that the plaintiffs, and each of them, as his heirs are likewise so estopped to claim any right, title or interest in and to the above described real estate and lands. ”
The Court also found that Susie had converted personal property to her own use and its reasonable value was $975, for which amount decree was entered against Susie. This appeal followed.
The deed abov$ contained the following recital: “That we, George Brookhyser and Snsie W. Brookhyser, his wife, for and in the consideration of the sum of One Dollar and other Value Considerations, to us paid by George Brookhyser and Susie W. Brookhyser, Husband and Wife, do hereby grant, bargain and sell unto the said George Brookhyser and Susie W. Brookhyser, Husband and Wife, or the survivor in the Entirety, and unto their heirs and assigns, _ the following described land, situate in Washington County, State of Arkansas, to-wit: (describing it).
“TO HAVE AND TO HOLD the said lands and appurtenances thereunto belonging unto the said George Brookhyser and Susie W. Brookhyser, Husband and Wife, with right of survivorship and unto their heirs and assigns, forever. And we, the said George Brookhyser and Susie W. Brookhyser, hereby covenant that we are lawfully seized of said land and premises; that the same is unincumbered, and we will forever warrant and defend the title to the said lands against all legal claims whatever.
“And I, the said Susie W. Brookhyser, wife of George Brookhyser, in consideration of said sum of money, do hereby release and relinquish unto the said George Brookhyser and Susie W. Brookhyser, Husband and Wife, with the right of survivorship or the survivor in the entirety, all my interest, right, title and dower and convey my homestead in and to said lands.
“WITNESS hand and seal on this 4th day of Nov., 1949. (Signed) George Brookhyser (Seal) Survivor Susie (Seal).” The deed was recorded and there was evidence that it was delivered to Susie.
1.
We consider first appellants’ contention that George lacked mental capacity to execute the deed. We cannot agree. There was evidence that while George was bed-fast and was practically helpless physically, he was mentally alert, at the time he signed the deed. Before its execution, George made several requests for his friend, L. E. Wiggins, a real estate dealer in Springdale, to come to his home and prepare the deed. When Wiggins came, George gave him an old deed from which to copy the description and other relevant information. Wiggins then returned to his office and prepared the deed. After a few days, Wiggins returned, George signed the deed and directed Wiggins to record it. A few days later, Wiggins recorded the deed and returned it to George who delivered it to Susie. Of some significance is the fact that George signed the deed “Survivor Susie” as indicating that he realized what he was doing, that he was perhaps near death, that Susie would probably survive him, and he wanted her to have this real estate.
While appellants offered testimony tending to contradict appellees, we cannot say, when all the evidence is considered, that the findings of the trial court were against the preponderance thereof.
On this issue of mental capacity, the governing rule has been many times announced by this court. In the comparatively recent case of McKindley v. Humphrey, 204 Ark. 333, 161 S. W. 2d 962, we said: “If the maker of a deed, will or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interests in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness whether produced by old age or through physical infirmities will not invalidate an instrument executed by him. (Citing cases.)”
2.
Next, appellants say that the acknowledgment on the deed is void and that the deed was of no effect and should be stricken from the deed records of Washington County. The answer to this contention is the well settled
rule that an unacknowledged deed is good between the parties. We said in McSwain v. Criswell, 213 Ark. 775, 213 S. W. 2d 383: “An unacknowledged deed is good between the parties. Jackson v. Allen, 30 Ark. 110. Hence, the allegation and testimony as to the irregularity of the acknowledgment are not of importance except as they may shed light on the real issue in the case, which is : Did M. O. McSwain, being of sound mind, execute the deed and bill of sale?”
3.
Appellants argue with considerable force that the deed here in question from George to George and Susie did not create an estate by the entirety and was in fact a nullity. We think this contention also untenable.
Act 86 of 1935 (Ark. Stats., 1947, § 50-413) provides that a deed executed by a married man directly to his wife shall be construed as conveying ‘ ‘ the interest specified in the deed.” The question is whether this statute permits a husband, already the owner of land, to create a tenancy by the entirety by a conveyance to himself and his wife.
In arguing that the statute does not permit this result the appellants rely principally upon Stewart v. Tucker, 208 Ark. 612, 188 S. W. 2d 125; Weir v. Brigham, 218 Ark. 354, 236 S. W. 2d 435, and Pegg v. Pegg, 165 Mich. 228, 130 N. W. 617, 33 L. R. A., N. S. 166, which was cited in both these Arkansas cases. It is insisted that the language in the Stewart and Weir cases compels us to hold that here the effort to create an estate by the entirety must fail. We cannot agree.
In all three of these cases the husband undertook to create a tenancy by the entirety by conveying to his wife an undivided one-half interest in' land already owned by him. Such a conveyance is evidently at complete variance with the common law conception of an estate by the entirety, since at common law the theory was that each spouse owned the entire estate and not a mere moiety. Indeed, the Michigan court stressed this point in the Pegg case, and we quoted its language with approval. Thus this factor alone is sufficient to support the conclusion reached in these three cases.
But, say the appellants, the earlier cases also emphasized the common law requirement of the four unities of interest, time, title, and possession. All the unities were patently not present in the three cases under review, since the wife’s undivided half interest could in no way be said to have been acquired at the same time as the half interest retained by her husband. By analogy it is now argued that here the unity of time is also lacking, for the reason that the husband cannot convey to himself and so could have acquired no new title by virtue of his own deed.
We cannot agree with this reasoning. A complete answer is given in what is now the leading case of In re Klatzl’s Estate, 216 N. Y. 83, 110 N. E. 181. There a majority of the judges, Bartlett, Collin, Hisoook, and Cardozo, agreed that under modern married women’s property acts a husband may create a tenancy by the entirety by a conveyance to himself and his wife. The same argument as to the unity of time was presented there as here, but Judge Collin answered: “The husbahd did not convey to himself, but to a legal unity or entity which was the consolidation of himself and another.”
The modern view taken by the New York cases has spread rapidly to other jurisdictions. See annotations in 62 A.L.B. 518, and 137 A.L.B. 350. Among the many favorable comments from leading students in the field is this excerpt from Tiffany on Beal Property, (3d Éd.), § 432: ‘ ‘ The view that a tenancy by the entirety may be created by the direct conveyance of the husband and wife of property owned by one of them to themselves as tenants by the entirety appeals as being logical and just. An estate by the entirety is one recognized by law and upheld with all its incidents, and ordinarly a conveyance to husband and wife creates such an estate. It is the policy of the law to accord to each spouse absolute freedom in dealing with, separately owned property, and this freedom entails no interruption of the unity arising from marriage. Nevertheless, as a property owner the spouse is a legal person apart and distinct from the legal entity composed of husband and wife. If it were otherwise, a husband and his wife could not take as tenants in common. To permit the creation of the estate carries out the intention expressed in the conveyance, while to construe it as conveying the property to one spouse as sole grantee, or to both as joint tenants or as tenants in common, would be a judicial conveyance of the property contrary to the owner’s expressed intention.” We are in complete agreement with this reasoning and see no reason why the parties should not be able to do directly that which they could undoubtedly do indirectly through the device of a straw man.
Affirmed.
Mr. Justice McFaddin dissents.