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MASTERSON V. HARRIS

285

enport are children of John W. Harris and his dren also thought that the will was unjust to wife Annie P. Harris, both deceased. Frederick their mother, and that to probate it would be Kenner Fisher is only child and heir of one a reflection upon their father's memory. This of such children, Mrs. Elizabeth Byrd Fisher, feeling led to, and resulted in, a family comdeceased, and B. R. A. Scott is one of the ex- pact between Mrs. Harris and her said four ecutors of the will of Mrs. Annie P. Harris. Children that all of the property should be treatJohn W. Harris, the executor, is also sued in ed as community, that Mrs. Harris should take such capacity. Plaintiffs under appropriate one half, and that the heirs at law of John W. averments, which need not be here more par- Harris should take the other half. In order to ticularly set out, seek partition of the property carry out the compact, it was agreed that the of the estates of John W. Harris, Mrs. Annie will should not be probated. This was done, P. Harris, and Miss Rebecca P. Harris, an- and the property has been since managed by other of the children of John W. and Annie P. John W. Harris as a whole for the benefit of Harris, who died intestate in 1900. It was the parties named and those claiming under alleged that these three estates of John W. Har- them. The right of Mrs. Masterson, or her ris, Annie P. Harris, and Rebecca P. Harris children after her death, to share in the propowned in undivided interests the property erty was not considered, in so far as the essought to be partitioned, and that plaintiffs and tate of John W. Harris proper is concerned. defendants owned in undivided interests the The legacy to Branch T. Masterson was never property of said estates. There is no contro- paid or demanded. versy as to the interests of the parties, respec- "In 1906 Thomas W. Masterson, one of the tively, in the property of the estates of Mrs. plaintiffs, found upon the records of Matagorda Annie P. Harris and Miss Rebecca Harris, but county, duly recorded on the day of its date, defendants deny that plaintiffs have any inter- in all respects duly executed according to the ests in the property of the estate of John W. provisions of the act of 1850 (articles 1, 2, tiHarris proper. Upon the trial the court de- tle 1, R. S.), an instrument, signed by John W. creed partition, recognizing the interests of Harris, as follows: plaintiffs in the property of the estates of Mrs. “ "The State of Texas, County of Matagorda. Harris and Miss Harris, but denied them any interest in the property of the estate of John John W. Harris, a resident of the county and

“ 'Know all men by these presents, that I, W. Harris. From this judgment this appeal state aforesaid, 'have adopted and do hereby is prosecuted by plaintiffs. "John W. Harris died in 1887, leaving sure only child of the late 'Mrs. Annie P. Dallam,

adopt, as my legal heir, Annie W. Dallam, the viving him his widow, Mrs. Annie P. Harris, whom I have this day married. Given under my and four children of their marriage, to wit, hand and seal this 1st day of July, one thousand John W. Harris, Mrs. Cora Davenport, Mrs. Elizabeth Byrd Fisher, and Miss Rebecca P: eight hundred and fifty-two.

“ 'John W. Harris. [Seal.] Harris. There also survived him an adopted daughter, Mrs. Annie W. Masterson, mother of

'Signed, sealed, and_delivered in the presplaintiffs, who was a daughter of Mrs. Annie ence of C. R. Patton. I. R. Lewis." P. Harris by a former marriage, and who had “At the time of this discovery Mrs. Annie P. by instrument of writing duly executed by John Harris was living, but shortly afterwards she W. Harris in 1852, on the day of his marriage died, leaving a will whereby she left her propto her mother, been adopted as his legal heir' erty to her two surviving children by Judge under the terms of the statute, which instru- Harris, Frederick Kenner Fisher, son of Elizament was duly recorded in the records of Mata- beth Byrd Fisher, and the children of Annie W. gorda county, where the parties lived; but Masterson, her child by the former marriage. none of the parties in interest knew anything As stated, the other child of John W. and Annie of this act of adoption until it was discovered P. Harris had died in 1900 intestate. by one of plaintiffs in 1906. By the terms of "Upon the filing of this suit in 1908, setting his will John W. Harris devised his entire es- up the rights of Mrs. Annie W. Masterson, or tate as follows: To his wife, one-fifth of all her children, she being deceased, as an adopted the property which he acquired before the mar- legal heir of John W. Harris, to participate riage, and one-fifth of that portion which had in the distribution of his estate, St. Mary's been and may be hereafter acquired during the Orphan Asylum of Galveston, a corporation, filmarriage, together with the Galveston home ed an application in the probate court at Galstead during her life, with power to bequeath veston county to have probated the aforesaid will the same at her death to any one or more of of John W. Harris, alleging as ground for such their four children. The bequest was stated to application that it had in 1901 purchased from be an extinguishment of all claims which Mrs. the heirs of John W. Harris certain lots in the Harris had to any of his separate property, or city of Galveston, that at the time of their to the community estate, it being stated that said purchase it believed that John W. Harris much the greater portion of the property there- had died intestate, and that its vendors were entofore acquired was his separate estate. The titled to his estate, ‘and a probate of the will rest and residue of his property was left to their is necessary and proper to complete, protect, four children, to wit, Rebecca P. Harris, John and make good of record and in fact applicant's W. Harris, Lillie B. Harris (afterwards Fish- title to the above mentioned lots.' It was furer), and Cora L. Harris (now Davenport), ther alleged that applicant was not in default share and share alike. There was

also left to in applying for the probate of the will, because Branch T. Masterson, husband of Annie w. it did not know of its existence until about two Masterson, the sum of $3,000, to be used in the weeks before the filing of the application. education of their children, the present plain- "To this application John W. Harris made tiffs, but this legacy was made conditional up- answer (which answer was adopted_by Kenner on Mrs. Harris accepting the

terms of the will. Fisher, by his guardian, and Mrs. Davenport), Mrs. Annie P. Harris, John W. Harris, Branch setting up the execution of the will, the death T. Masterson, and Miss Rebecca P. Harris were of John W. Harris, and the family compact appointed independent executors of the will herein referred to. They admitted the allegawithout bond, and were each given $500 as com- tions of the Orphan Asylum and its interest in pensation for their services. The will was dat- the probate of the will, and that such probate ed in 1880. Judge Harris died in 1887. Im- was necessary and proper to complete, protect, mediately after his death, upon reading of the perfect, and make good of record and in fact will in presence of the widow and four children its title to the property mentioned. It was furand Mr. Masterson, Mrs. Harris expressed ther represented that about 80 other persons, citgreat dissatisfaction with its terms to herself, izens of Texas, occupied the same attitude as and also on account of its failure to make any purchasers of lands from said heirs as the Orprovision for Mrs. Masterson. The four chil- | phan Asylum, and that there was as to them the same necessity to probate the will for the pur- answer of said John W. Harris, or either of said pose of protecting their titles, and in addition papers, is the last will of said John W. Harris, that about 250 persons had leased lands from deceased. Wherefore these contestants pray said heirs, and for the protection of their rights that all of said applications for probate of said there was the same necessity to probate the will. alleged wills of said John W. Harris, deceased, Respondents specially admit and recognize the be refused and dismissed at the cost of the reright of the estate of Mrs. Annie P. Harris to spective applicants.' one-half of the property of John W. Harris and "The county court in this proceeding admitted Annie P. Harris, as fixed by law at the date of the will to probate upon the application of all the death of John W. Harris. The further al- the persons praying therefor. On appeal to legation is made as to the necessity for the the district court, probate was refused upon any probate of the will arising from the fact of the of the applications. From this judgment the discovery of the act of adoption by John W. Orphan Asylum, Hefley, and John W. Harris, Harris of Mrs. Annie W. Masterson, as herein Kenner Fisher, and Mrs. Davenport appealed. set out, and the filing of this suit for partition. The Orphan Asylum and Hefley gave separate W. T. Hefley intervened, also praying for the appeal bonds, and John W. Harris, Kenner probate of the will, alleging that he was also Fisher, and Mrs. Davenport executed a joint appurchaser of certain lands from the heirs of peal bond. By the judgment of the Court of John W. Harris, that the probate of the will Civil Appeals of the Fourth District the judgwas necessary to protect, perfect, and make good ment of the district court was reversed, and his title, alleging substantially the same grounds judgment rendered that the applications of apthat are set out in the petition of the Orphan pellants, St. Mary's Orphan Asylum of GalAsylum.

veston, Texas, and W. T. Hefley, for the probate "The probate of the will was contested by of the last will and testament of John W. Harthe plaintiffs in the present action, devisees of ris, deceased, be and the same is hereby granted.' Mrs. Annie W. Masterson, deceased. In their The opinion of that court upon the original subanswer, which is very lengthy, they alleged that mission, and also upon motion for rehearing 'John W. Harris and Annie Pleasants Dallam, (which is reported in 57 Tex. Civ. App. 646, 122 who was then a widow, then citizens of the S. W. 587, case styled St. Mary's Orphan 'Asycounty of Matagorda and state of Texas, enter- lum of Texas v. T. B. Masterson et al.) is refered into an antenuptial marriage contract, in red to and made a part of this statement to ilwhich they agreed to be married, and Johnw. lustrate and explain the questions here presentHarris agreed that on that day of the marriage ed. All of the facts herein set out were embrache would adopt as his legal heir Annie W. ed in the pleadings of the parties by appropriate Dallam, who was a child of said Annie Pleasants averments. Conclusions of fact and law were Dallam by her former marriage; that in con- filed by the trial judge. The conclusions of fact, formity with said contract said John W. Harris with slight exception, are adopted by us. At and Annie Pleasants Dallam were married on the risk of repetition of much that has been the 1st day of July, 1852, and on the same day heretofore stated, we here set out such concluhe, the said John W. Harris, by an instrument sions: in writing duly executed by him and duly filed "In the early part of the summer of 1852 and recorded in the office of the clerk of the coun- Judge John Harris and Mrs. Annie P. Dallam, ty court of Matagorda county, adopted said Annie a widow with one child (Annie W. Dallam, W. Dallam as his legal heir and thereby faithful- about five years old, afterwards Annie W. Masly performed his aforesaid contract; that there- terson, by marriage with Branch T. Masterson), upon the said Annie W. Dallam became the became engaged to be married. In his proposal legal heir of said John W. Harris, and became of marriage to Mrs. Dallam, Judge Harris said entitled to all of the rights and privileges in law that he would adopt her daughter, Annie W. and in equity of a legal heir of said John W. Dallam, as his own child, and urged this as a Harris.' They also alleged substantially the consideration for Mrs. Dallam's accepting his facts hereinbefore set out with regard to the proposal. She did accept his proposal so made, death of John W. Harris and the family agree- and on the day they were married, July 1, 1852, ment not to probate the will, setting out in de- Judge Harris duly adopted the said Annie w tail the circumstances with regard thereto. Dallam by an instrument in writing duly acThey disclaim any right to or interest in the knowledged and filed on the 16th day of that lands or other property conveyed to the Orphan month in the office of the county clerk of MataAsylum or Hefley, or others, and admit the va- gorda county, where at the time both parties lidity of all such conveyances, and of all leases resided. The fact that he had so adopted her executed by said heirs, and disclaim any desire was not known to any of the parties to this or intention to disturb the same. The said con- suit, or to any other member of the Masterson testants conclude: 'And these contestants say and Harris families, as far as disclosed by the that the legacy of three thousand dollars direct- evidence, until the month of July, 1906, when ed to be paid over to Branch T. Masterson to be Mr. Thomas W. Masterson happened to discover expended in the education of these contestants the act of adoption in the office of the county by reason of said agreement not to probate ei- clerk of Matagorda county. The court finds as ther of said alleged wills and the actual failure a fact that it was intended by Judge Harris in and refusal to probate the same by said John his proposal to Mrs. Dallam that the child W. Harris, Jr., Rebecca P. Harris, Lillie B. should be treated as his own, and that she Fisher, and Cora L. Davenport, deprived these should have a child's interest in his estate. contestants of the benefit of said legacy, and “ 'So far as disclosed by the evidence, Mrs. the same remained in the estate in which each Annie P. Harris never mentioned the fact of of said parties have been receiving and are en- Judge Harris' promise to adopt the child of her titled to receive their respective shares, and by as- first marriage to any member of the family until serting their right thereto as heirs at law each on the 1st day of April, 1887, after Judge Harof said parties is estopped to deny that they hold ris' death, when the two purported wills were their respective shares as such heirs, and by as- produced by John W. Harris, Jr., son of Judge serting their right thereto as heirs at law each Harris, who, for some time previous to his of said parties are estopped to deny that they father's death and on account of his failing hold their respective interests as heirs at law health, had charge of his father's business afof said John W. Harris, and are estopped from fairs and custody of his papers, at a meeting of having either of said alleged wills probated, and the members of the Harris family, consisting of are estopped to claim as devisees under said al- Mrs. Annie P. Harris, her daughters, Lillie, leged wills, or either of them, and these con- Rebecca, and Cora, and son, John W. 'Harris, testants deny that said alleged will attached to Jr., and at which' Mr. Branch T. Masterson the application of said St. Mary's Orphan Asy- was also present by invitation. She did not Tex.)

MASTERSON V. HARRIS

287

instruments had been read and general surprise the subsequent act of adoption of her child, expressed at their contents, particularly at the Mrs. Annie W. Masterson, he was estopattempt to dispose of the entire estate as though ped and prevented from making any will it were his separate property, when it was notorious that it was community of the marriage, which by its terms did not make provision she called Mr. Branch T. Masterson aside in for his said adopted child equally with his another room and expressed her own surprise own children. that Judge Harris had not made provision for their daughter, Annie W., and then stated to him The questions propounded to the Supreme Judge Harris' promise at the time she accepted Court are: his proposal of marriage, and added that she had always supposed that he had kept his promise, but the benefit of appellees as devisees thereunder,

"First. Did the probate of said will inure to now that it seemed he had not. ly made the same statement to one of her grand- or is the same to be limited in its operation to children, probably on more than one occasion.

the parties upon whose application it was pro'At said meeting it was agreed by Mrs. bated, to wit, St. Mary's Orphan Asylum and Harris and her children by Judge Harris, they W.: T. Hefley? being the exclusive devisees under each of said

“Second. Does the verbal agreement between instruments, not to offer the same for probate, John W. Harris and Mrs. Annie P. Dallam, because they thought what they considered to made in prospect of their marriage, and the subbe the injustice of the wills to Mrs. Harris sequent act of adoption by John W. Harris of would be a reflection on Judge Harris' memory, the child of said wife, operate to prevent or inand it was agreed between them that the whole terfere with his right to make such disposition estate should be considered as community, Mrs. of his property and estate by will as was done Harris taking one half interest and Mr. Harris' by the will admitted to probate?' four children the other half in equal parts, as though he had died intestate; and Mr. Master

[1] The Supreme Court, in reply to these son, being asked what he thought of this, as questions (see Masterson v. Harris, 174 S. sented to it, saying, in substance, that they W. 570), answered that the probate of the could do what they pleased, that if they did not will in question inured to the benefit of the offer the wills for probate he would not, and that they need not consider his children (referring to appellees, and decided the second question in the legacy of $3,000 for their benefit), as he was the negative. These answers are conclusive able to care for his own children. The wills were accordingly withheld from probate until upon us, and require us to overrule all of after the discovery of the act of adoption, more appellants' assignments of error in which than 20 years after Judge Harris' death; Mrs. the questions are presented. Annie P. Harris and her daughter, Mrs. Annie

[2] By their fifth assignment of error apW. Masterson, having died in the interim.

“The will of Judge Harris was duly probated pellants complain that the court erred in in Galveston county on the 10th day of Febru- holding that the agreement between John ary, 1910, pursuant to the decree of the Court W. Harris, Jr., Cora L. Davenport, Rebecca of Civil Appeals of the Fourth Supreme Judicial P. Harris, and Lillie B. Harris, and their District, in the case entitled "In the Matter of mother, Annie P. Harris, not to probate the plication for Probate of Will," No. 26,731 in will of John W. Harris, and to set said will this court, and to the orders of this court also aside and ignore it, coupled with their ratimade pursuant to said decree, and copy is here-fication of such agreement by acting under to attached and marked Exhibit B. The case is reported in 57 Tex. Civ. App. 587, 122 S. W. it for 21 years, did not preclude them from 587. The plaintiffs and those under whom they now claiming title under said will. Under claim are the only devisees of Mrs. Annie W. this assignment there is urged a proposition Masterson; the defendants (other than the executors and administrator) and those under to the effect that, where the widow and whom they claim are the only devisees of Judge children of deceased, having custody of the John W. Harris; and said plaintiffs and defend- will, agreed with each other to not have the ants and those under whom they claim are the will probated, and that one of the children, only devisees of Mrs. Annie P. Harris. These estates consist of a large number of tracts of land John W. Harris, should be manager of the in different parts of the state, and other proper- estate, and the property would be treated ty, which it is agreed, for the purposes of this as if the deceased had died intestate, and case, was all originally community of the mar- the widow was agreed by them to be the riage of Judge John W. Harris and his wife, Annie P. Harris. The accounts of John W. owner of one-half of the property and should Harris, Jr., who has had charge of the property take against the will, and the will was in since his father's death, have been audited and the custody of the widow and the manager found correct.''

and other children of the deceased for more Under the foregoing facts it was the con- than 20 years after the death of the deceastention of appellants that: First. The probate ed, and during that entire period the agreeof the will of John W. Harris by the Court ment was carried out by all the parties to of Civil Appeals is a limited probate, inuring it, and large amounts of money drawn from to the benefit of the Orphan Asylum and the estate by each of the parties to the W. T. Hefley, and that appellees John W. agreement, and several thousand acres of Harris, Kenner Fisher, and Mrs. Davenport, land belonging to the estate were sold by having been held in default by said court in said widow and children as heirs, and the failing to probate the will within four years, proceeds used by them, the agreement is can take no benefits thereunder, but that, binding on all of the parties to it, and after as to them, John W. Harris must be treated the death of the widow and two of the chilas having died intestate. Second. That by dren, who were parties to the agreement, the virtue of the antenuptial agreement of John other children cannot repudiate the agree. and money of the estate received by them to Mrs. Dallam that the child should be treated under it, and claim the estate as devisees as his own, and that she should have a child's inunder the repudiated will, which the court terest in his estate meaning thereby such an

interest as the child would be entitled to take refused to probate on their application; in case of intestacy, or in case of last will and that under such state of facts the agreement testament by equal provision with his own chilis binding on the parties, and that they did dren, if any, and it was so understood by Mrs.

Dallam." not acquire any right under the will, and could not take as devisees under the will,

The assignment contains the exact lanbut only as heirs at law according to the guage of the finding complained of. In our agreement. The facts upon which the plea statement made in certifying questions to of estoppel is predicated are set out in our the Supreme Court, which is adopted as our findings of fact, supra, and will not be here statement in this opinion, we omitted thererepeated. We agree with the trial judge from that portion of the court's findings that:

which reads as follows: "What transpired at the meeting of the mem

“Meaning thereby such an interest as the bers of the Harris family and Mr. Branch T. child would be entitled to take in case of intesMasterson at the time of the reading of the tacy, or in case of last will and testament by wills, immediately after Judge Harris' death, did equal provision with his own children, if any, not constitute such an agreement as the plain and it was so understood by Mrs. Dallam.” tiffs can avail themselves of, and does not operate to estop the devisees under Judge Harris' sideration of all the evidence bearing upon

We did this because, after a careful con

of thereof."

the point, we concluded that the finding was Certainly estoppel cannot be predicated not justified. The evidence upon this issue upon the agreement of Mr. Masterson not to consists of proof of statements made by Mrs. insist upon receiving the $3,000 bequeathed Harris as to what the antenuptial agreement to him in trust for his children and to be between herself and Mr. Harris was. On used for their education. This bequest was this point Mr. Branch T. Masterson testiconditioned on Mrs. Harris' acceptance of fied that just after the reading of the wills the will in lieu of her community interest, Mrs. Harris said to him, quoting the lanand the evidence clearly shows that she re- guage of the witness: jected it. On this point Mr. Masterson tes

"Well, she said to me that, at the time she betified that at the meeting at which the came engaged to Mr. Harris, engaged to marry wills were read Mrs. Harris expressed dis- his daughter."

him, he had promised to adopt her daughter as satisfaction with the will and said that she

Miss Reba Masterson, one of the plaintiffs, did not think it was just to her, that it was a granddaughter of Mrs. Harris, testified to not the will she had understood Mr. Harris a conversation she had with her grandmothintended to make, and that she would not er on this subject, as follows: recognize it. The fact that the will was not

“She said they were standing at the gate, my offered for probate, and that all of the par- mother was standing beside them, and that he ties to the agreement agreed that Mrs. Har- was saying how much better it would be for the ris, instead of taking under the will, should child, too, if she would consent to marry him.

He said that he would adopt her as his own, take a half interest in all the property, and and then grandma went on to say that he did the fact that this agreement was recognized adopt her.' and acquiesced in during the remainder of

Again she says: Mrs. Harris' life is proof that the contin

“She laid special stress upon his having promgency under which the bequest of the $3,000 ised to adopt her; * * *

* ** that he said as soon to Mr. Masterson should be payable never as they were married he would make her his own

child." arose. His response, upon being asked by the parties to the agreement as to what he The findings of fact in the probate prothought of it and in assenting to it, that ceedings, which were introduced in evidence, “they could do as they pleased, that if they and to the introduction of which no objection did not offer the wills for probate he would is here urged, contain the following: not, and that they need not consider his "Here Mr. Harris promised to adopt her little children (referring to the legacy for their for whom he had already shown affection, then

, benefit), as he was able to care for his own in company with her mother. He said he would children,” was not of a contractual nature, adopt her legally the day they were married.” “but rather the spirited reply of an independ- The next day Mrs. Harris told Mr. Branch T. ent gentleman, who thought his wife had when they were alone she said that Mr. Harris

Masterson she wished to see him privately, and not been teated in the alleged wills with the had promised her at the time they were engagconsideration she had a right to expect from ed to be married that he would adopt her daughone who from early childhood had other ter, Annie, legally, and treat her as his own

child. She said she had never asked him whethwise shown her paternal affection." The er he had in fact legally adopted her or not, but assignment cannot be sustained.

had always supposed he had, but now saw he [3, 4] We come now to a consideration of had not kept his word to her, referring to no a cross-assignment of error presented by the provision being made for her in his wills." appellees. It is as follows:

We think that this evidence proves noth“The court erred in finding as a fact that it ing more than a promise upon the part of

Tex.)

FITZGERALD v AYRES

289

Dallam as his heir under the statute as it then existed, and falls short of proof that FITZGERALD et al. V. AYRES et al. * he contracted with Mrs. Dallam that her

(No. 7350.) child should have an interest in his estate- (Court of Civil Appeals of Texas. Dallas. meaning thereby such an interest as the

June 19, 1915. Rehearing Denied

Oct. 16, 1915.) child would be entitled to take in case of intestacy, or in case of last will and testament DEATH ©ww.5-WILLS C.775—CONSTRUCTION

SURVIVORSHIP-INTENTION. by equal provision with his own children.

A husband and wife made their wills, each But if we are mistaken in this, and even if naming the other as primary beneficiary, but the evidence had shown the existence of a each in the event of prior death of the other binding contract upon the part of Mr. Har- They were frozen to death in the same snow

naming their foster son as sole beneficiary. ris to give to the child such an interest in his storm. There was no evidence as to which ed estate as a child of his own would take in first. Held, that the son would take, there case of intestacy, or in case of last will and simultaneous death, and, it being the evident

to testament by equal provision with his own intention of both that he should take, the wills children, we do not think, in view of the would stand as if they contained only the bestate of the pleadings of the plaintiffs, that quest to the son. the proof of such facts could properly in Dig. § 7; Dec. Dig. Omw5; Wills, Cent. Dig.

[Ed. Note.:-For other cases, see Death, Cent. any event have become the basis of a judg- ss 1997-2000; Dec. Dig. 775.] ment in their favor. No such contract was pleaded, but only the promise to adopt, and

Error from District Court, Dallas County; the fact that the promise was faithfully per- Kenneth Foree, Judge. formed by Mr. Harris on the day of his mar

Action by W. H. Fitzgerald and others riage with Mrs. Dallam, by executing an in- against R. C. Ayres and L. R. Terry, execustrument of adoption and filing the same for tors of Willis A. Skinner and of Sallie E. record in the oflice of the county clerk of the Skinner, deceased. Judgment for defendants, county of their residence. Their pleading on and plaintiffs bring error. Affirmed. this point is as follows:

Wood & Wood, W. H. Clark, and W. T. “That heretofore, to wit, in 1852, John W. Strange, all of Dallas, for plaintiffs in erHarris and Annie Pleasants Dallam, who was then a widow, then citizens of the county of ror. Chas. F. Clint and Chilton & Chilton, Matagorda and state of Texas, entered into an all of Dallas, for defendants in error. antenuptial marriage contract in which they agreed to be married, and she and John W. Har- TALBOT, J. This suit was instituted in ris agreed that on the day of the marriage he would adopt as his legal heir Annie W. Dallam, the district court of Dallas county, Tex., by who was a child of said Annie Pleasants Dal- the plaintiffs in error, W. H. Fitzgerald and lam by her former marriage. That in conform-others, hereinafter called plaintiffs, as the ity with said contract said John W. Harris and next of kin and sole heirs of Willis A. SkinAnnie Pleasants Dallam were married on the 1st day of July, 1852, and on the same day he, ner and Sallie E. Skinner, deceased, against the said John W. Harris, by an instrument in the defendants in error, R. C. Ayres and L. writing duly executed by him and duly filed and R. Terry, executors of the estates, respectiverecorded in the office of the clerk of the county court of Matagorda county, adopted said Annie ly, of the said Willis A. Skinner and Sallie W. Dallam as his legal heir, and thereby faith- E. Skinner, Carnagie Frank Skinner, a minor, fully performed his aforesaid contract. That and Charles F. Clint, guardian ad litem thereupon the said Annie W. Dallam became the of said minor, hereinafter called defendants, legal heir of said John W. Harris, and became entitled to all the rights and privileges in law to recover all the real and personal properand equity of a legal heir of said John W. ty belonging to the estates of said deceased Harris."

persons, which property is fully described in For these reasons the findings of fact by the petition. There is no controversy over the trial court, complained of in the cross the pleadings, and it is unnecessary to set assignment, cannot be adopted by us as a them out. The material facts are as folpart of our findings of fact. In view of the lows: Some of the plaintiffs are the next importance of the legal principles involved of kin and sole heirs of the said Willis A. in the questions presented for review upon Skinner, and the others are the next of kin this appeal, and of the magnitude of the es- and sole heirs of Sallie E. Skinner, and Willis tate in litigation, we have given mature con- A. Skinner and Sallie E. Skinner were hussideration to all the questions presented by band and wife. On the 21st day of August, appellants for a reversal of the judgment 1911, the said Willis A. Skinner and his said appealed from; but it is our conclusion that wife died in a snowstorm while ascending, none of their assignments point out reversi- on foot, Pike's Peak, in the state of Colorable error. The only two questions in re- do, and they were buried in the city of Dalgard to which we have had serious doubt las, Tex., at the same time, on the succeedhave been decided by the Supreme Court | ing Sunday. They had resided in the said adversely to appellants. We think the judg-city of Dallas a number of years, and had ment of the court below should be affirmed, acquired and owned at the time of their and it has been so ordered.

death property of the estimated value of Affirmed.

$60,000, the larger part, if not all, of which

On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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