ÆäÀÌÁö À̹ÌÁö
PDF
ePub

enport are children of John W. Harris and his wife Annie P. Harris, both deceased. Frederick Kenner Fisher is only child and heir of one of such children, Mrs. Elizabeth Byrd Fisher, deceased, and B. R. A. Scott is one of the executors of the will of Mrs. Annie P. Harris. John W. Harris, the executor, is also sued in such capacity. Plaintiffs under appropriate averments, which need not be here more particularly set out, seek partition of the property of the estates of John W. Harris, Mrs. Annie P. Harris, and Miss Rebecca P. Harris, another of the children of John W. and Annie P. Harris, who died intestate in 1900. It was alleged that these three estates of John W. Harris, Annie P. Harris, and Rebecca P. Harris owned in undivided interests the property sought to be partitioned, and that plaintiffs and defendants owned in undivided interests the property of said estates. There is no controversy as to the interests of the parties, respectively, in the property of the estates of Mrs. Annie P. Harris and Miss Rebecca Harris, but defendants deny that plaintiffs have any interests in the property of the estate of John W. Harris proper. Upon the trial the court decreed partition, recognizing the interests of 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 W. Harris. From this judgment this appeal is prosecuted by plaintiffs.

dren also thought that the will was unjust to their mother, and that to probate it would 'be a reflection upon their father's memory.' This feeling led to, and resulted in, a family compact between Mrs. Harris and her said four children that all of the property should be treated as community, that Mrs. Harris should take one half, and that the heirs at law of John W. Harris should take the other half. In order to carry out the compact, it was agreed that the will should not be probated. This was done, and the property has been since managed by John W. Harris as a whole for the benefit of the parties named and those claiming under them. The right of Mrs. Masterson, or her children after her death, to share in the property was not considered, in so far as the estate of John W. Harris proper is concerned. The legacy to Branch T. Masterson was never paid or demanded.

"In 1906 Thomas W. Masterson, one of the plaintiffs, found upon the records of Matagorda county, duly recorded on the day of its date, in all respects duly executed according to the provisions of the act of 1850 (articles 1, 2, title 1, R. S.), an instrument, signed by John W. Harris, as follows:

John W. Harris, a resident of the county and "Know all men by these presents, that I, state aforesaid, 'have adopted and do hereby only child of the late Mrs. Annie P. Dallam, adopt, as my legal heir, Annie W. Dallam, the whom I have this day married. Given under my hand and seal this 1st day of July, one thousand eight hundred and fifty-two.

66

"John W. Harris. [Seal.] 'Signed, sealed, and delivered in the presence of C. R. Patton. I. R. Lewis.'

"At the time of this discovery Mrs. Annie P. Harris was living, but shortly afterwards she died, leaving a will whereby she left her property to her two surviving children by Judge Harris, Frederick Kenner Fisher, son of Elizabeth Byrd Fisher, and the children of Annie W. Masterson, her child by the former marriage. As stated, the other child of John W. and Annie P. Harris had died in 1900 intestate.

"John W. Harris died in 1887, leaving sur viving him his widow, Mrs. Annie P. Harris, and four children of their marriage, to wit, John W. Harris, Mrs. Cora Davenport, Mrs. Elizabeth Byrd Fisher, and Miss Rebecca P. Harris. There also survived him an adopted daughter, Mrs. Annie W. Masterson, mother of plaintiffs, who was a daughter of Mrs. Annie P. Harris by a former marriage, and who had by instrument of writing duly executed by John W. Harris in 1852, on the day of his marriage to her mother, been adopted as his legal heir' under the terms of the statute, which instrument was duly recorded in the records of Matagorda county, where the parties lived; but none of the parties in interest knew anything of this act of adoption until it was discovered by one of plaintiffs in 1906. By the terms of his will John W. Harris devised his entire estate as follows: To his wife, one-fifth of all the property which he acquired before the marriage, and one-fifth of that portion which had been and may be hereafter acquired during the marriage, together with the Galveston home stead during her life, with power to bequeath the same at her death to any one or more of their four children. The bequest was stated to be an extinguishment of all claims which Mrs. Harris had to any of his separate property, or to the community estate, it being stated that much the greater portion of the property theretofore acquired was his separate estate. The rest and residue of his property was left to their four children, to wit, Rebecca P. Harris, John W. Harris, Lillie B. Harris (afterwards Fisher), and Cora L. Harris (now Davenport), share and share alike. There was also left to Branch T. Masterson, husband of Annie W. Masterson, the sum of $3,000, to be used in the 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 Or

"Upon the filing of this suit in 1908, setting up the rights of Mrs. Annie W. Masterson, or her children, she being deceased, as an adopted legal heir' of John W. Harris, to participate in the distribution of his estate, St. Mary's Orphan Asylum of Galveston, a corporation, filed an application in the probate court at Galveston county to have probated the aforesaid will of John W. Harris, alleging as ground for such application that it had in 1901 purchased from the heirs of John W. Harris certain lots in the city of Galveston, that at the time of their said purchase it believed that John W. Harris had died intestate, and that its vendors were entitled to his estate, and a probate of the will is necessary and proper to complete, protect, and make good of record and in fact applicant's title to the above mentioned lots.' It was further alleged that applicant was not in default in applying for the probate of the will, because it did not know of its existence until about two weeks before the filing of the application.

papers, is the last will of said John W. Harris, deceased. Wherefore these contestants pray that all of said applications for probate of said alleged wills of said John W. Harris, deceased, be refused and dismissed at the cost of the respective applicants.'

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 that about 250 persons had leased lands from said heirs, and for the protection of their rights there was the same necessity to probate the will. Respondents specially admit and recognize the right of the estate of Mrs. Annie P. Harris to one-half of the property of John W. Harris and Annie P. Harris, as fixed by law at the date of the death of John W. Harris. The further allegation is made as to the necessity for the probate of the will arising from the fact of the discovery of the act of adoption by John W. Harris of Mrs. Annie W. Masterson, as herein set out, and the filing of this suit for partition. W. T. Hefley intervened, also praying for the probate of the will, alleging that he was also purchaser of certain lands from the heirs of John W. Harris, that the probate of the will was necessary to protect, perfect, and make good his title, alleging substantially the same grounds that are set out in the petition of the Orphan Asylum.

"The probate of the will was contested by the plaintiffs in the present action, devisees of Mrs. Annie W. Masterson, deceased. In their answer, which is very lengthy, they alleged that 'John W. Harris and Annie Pleasants Dallam, who was then a widow, then citizens of the county of Matagorda and state of Texas, entered into an antenuptial marriage contract, in which they agreed to be married, and John W. Harris agreed that on that day of the marriage he would adopt as his legal heir Annie W. Dallam, who was a child of said Annie Pleasants Dallam by her former marriage; that in conformity with said contract said John W. Harris and Annie Pleasants Dallam were married on the 1st day of July, 1852, and on the same day he, the said John W. Harris, by an instrument in writing duly executed by him and duly filed and recorded in the office of the clerk of the county court of Matagorda county, adopted said Annie W. Dallam as his legal heir and thereby faithfully performed his aforesaid contract; that thereupon the said Annie W. Dallam became the legal heir of said John W. Harris, and became entitled to all of the rights and privileges in law and in equity of a legal heir of said John W. Harris.' They also alleged substantially the facts herein before set out with regard to the death of John W. Harris and the family agreement not to probate the will, setting out in detail the circumstances with regard thereto. They disclaim any right to or interest in the lands or other property conveyed to the Orphan Asylum or Hefley, or others, and admit the validity of all such conveyances, and of all leases executed by said heirs, and disclaim any desire or intention to disturb the same. The said contestants conclude: 'And these contestants say that the legacy of three thousand dollars directed to be paid over to Branch T. Masterson to be expended in the education of these contestants by reason of said agreement not to probate either of said alleged wills and the actual failure and refusal to probate the same by said John W. Harris, Jr., Rebecca P. Harris, Lillie B. Fisher, and Cora L. Davenport, deprived these contestants of the benefit of said legacy, and the same remained in the estate in which each of said parties have been receiving and are entitled to receive their respective shares, and by asserting their right thereto as heirs at law each of said parties is estopped to deny that they hold their respective shares as such heirs, and by asserting their right thereto as heirs at law each of said parties are estopped to deny that they hold their respective interests as heirs at law of said John W. Harris, and are estopped from having either of said alleged wills probated, and are estopped to claim as devisees under said alleged wills, or either of them, and these contestants deny that said alleged will attached to the application of said St. Mary's Orphan Asylum, or said Exhibit X, and attached to the

"The county court in this proceeding admitted the will to probate upon the application of all the persons praying therefor. On appeal to the district court, probate was refused upon any of the applications. From this judgment the Orphan Asylum, Hefley, and John W. Harris, Kenner, Fisher, and Mrs. Davenport appealed. The Orphan Asylum and Hefley gave separate appeal bonds, and John W. Harris, Kenner Fisher, and Mrs. Davenport executed a joint appeal bond. By the judgment of the Court of Civil Appeals of the Fourth District the judgment of the district court was reversed, and judgment rendered that the applications of appellants, St. Mary's Orphan Asylum of Galveston, Texas, and W. T. Hefley, for the probate of the last will and testament of John W. Harris, deceased, be and the same is hereby granted.' The opinion of that court upon the original submission, and also upon motion for rehearing (which is reported in 57 Tex. Civ. App. 646, 122 S. W. 587, case styled St. Mary's Orphan Asylum of Texas v. T. B. Masterson et al.) is referred to and made a part of this statement to illustrate and explain the questions here presented. All of the facts herein set out were embraced in the pleadings of the parties by appropriate averments. Conclusions of fact and law were filed by the trial judge. The conclusions of fact, with slight exception, are adopted by us. the risk of repetition of much that has been heretofore stated, we here set out such conclusions:

At

"In the early part of the summer of 1852 Judge John Harris and Mrs. Annie P. Dallam, a widow with one child (Annie W. Dallam, about five years old, afterwards Annie W. Masterson, by marriage with Branch T. Masterson), became engaged to be married. In his proposal of marriage to Mrs. Dallam, Judge Harris said that he would adopt her daughter, Annie W. Dallam, as his own child, and urged this as a consideration for Mrs. Dallam's accepting his proposal. She did accept his proposal so made, and on the day they were married, July 1, 1852, Judge Harris duly adopted the said Annie W. Dallam by an instrument in writing duly acknowledged and filed on the 16th day of that month in the office of the county clerk of Matagorda county, where at the time both parties resided. The fact that he had so adopted her was not known to any of the parties to this suit, or to any other member of the Masterson and Harris families, as far as disclosed by the evidence, until the month of July, 1906, when Mr. Thomas W. Masterson happened to discover the act of adoption in the office of the county clerk of Matagorda county. The court finds as a fact that it was intended by Judge Harris in his proposal to Mrs. Dallam that the child should be treated as his own, and that she should have a child's interest in his estate.

"So far as disclosed by the evidence, Mrs. Annie P. Harris never mentioned the fact of Judge Harris' promise to adopt the child of her first marriage to any member of the family until on the 1st day of April, 1887, after Judge Harris' death, when the two purported wills were produced by John W. Harris, Jr., son of Judge Harris, who, for some time previous to his father's death and on account of his failing health, had charge of his father's business affairs and custody of his papers, at a meeting of the members of the Harris family, consisting of Mrs. Annie P. Harris, her daughters, Lillie, Rebecca, and Cora, and son, John W. Harris, Jr., and at which Mr. Branch T. Masterson was also present by invitation. She did not then mention it in the meeting, but after both

The questions propounded to the Supreme Court are:

"First. Did the probate of said will inure to the benefit of appellees as devisees thereunder, or is the same to be limited in its operation to the parties upon whose application it was probated, to wit, St. Mary's Orphan Asylum and W. T. Hefley?

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 it were his separate property, when it was no-ped and prevented from making any will torious 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 Judge Harris' promise at the time she accepted his proposal of marriage, and added that she had always supposed that he had kept his promise, but now that it seemed he had not. She subsequently made the same statement to one of her grandchildren, probably on more than one occasion. "At said meeting it was agreed by Mrs. Harris and her children by Judge Harris, they being the exclusive devisees under each of said instruments, not to offer the same for probate, because they thought what they considered to be the injustice of the wills to Mrs. Harris would be a reflection on Judge Harris' memory, and it was agreed between them that the whole estate should be considered as community, Mrs. Harris taking one half interest and Mr. Harris' 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 offer the wills for probate he would not, and that they need not consider his children (referring to the legacy of $3,000 for their benefit), as he was able to care for his own children. The wills were accordingly withheld from probate until after the discovery of the act of adoption, more than 20 years after Judge Harris' death; Mrs. Annie P. Harris and her daughter, Mrs. Annie W. Masterson, having died in the interim.

"Second. Does the verbal agreement between John W. Harris and Mrs. Annie P. Dallam, made in prospect of their marriage, and the subsequent act of adoption by John W. Harris of the child of said wife, operate to prevent or interfere with his right to make such disposition of his property and estate by will as was done by the will admitted to probate?"

will in question inured to the benefit of the appellees, and decided the second question in the negative. These answers are conclusive upon us, and require us to overrule all of appellants' assignments of error in which the questions are presented.

[2] By their fifth assignment of error ap

""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 the Estate of John W. Harris, Deceased. Ap-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; and 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 than 20 years after the death of the deceased, and during that entire period the agreement was carried out by all the parties to it, and large amounts of money drawn from the estate by each of the parties to the agreement, and several thousand acres of land belonging to the estate were sold by said widow and children as heirs, and the proceeds used by them, the agreement is binding on all of the parties to it, and after the death of the widow and two of the children, who were parties to the agreement, the other children cannot repudiate the agree

Under the foregoing facts it was the contention of appellants that: First. The probate of the will of John W. Harris by the Court of Civil Appeals is a limited probate, inuring to the benefit of the Orphan Asylum and W. T. Hefley, and that appellees John W. Harris, Kenner Fisher, and Mrs. Davenport, having been held in default by said court in failing to probate the will within four years, can take no benefits thereunder, but that, as to them, John W. Harris must be treated as having died intestate. Second. That by virtue of the antenuptial agreement of John

and money of the estate received by them under it, and claim the estate as devisees under the repudiated will, which the court refused to probate on their application; that under such state of facts the agreement is binding on the parties, and that they did not acquire any right under the will, and could not take as devisees under the will, but only as heirs at law according to the agreement. The facts upon which the plea of estoppel is predicated are set out in our findings of fact, supra, and will not be here repeated. We agree with the trial judge

that:

"What transpired at the meeting of the members of the Harris family and Mr. Branch T. Masterson at the time of the reading of the wills, immediately after Judge Harris' death, did not constitute such an agreement as the plaintiffs can avail themselves of, and does not operate to estop the devisees under Judge Harris' will from availing themselves of the probate thereof."

to Mrs. Dallam that the child should be treated as his own, and that she should have a child's ininterest as the child would be entitled to take terest in his estate-meaning thereby such an in case of intestacy, or in case of last will and testament by equal provision with his own children, if any, and it was so understood by Mrs. Dallam."

The assignment contains the exact language of the finding complained of. In our statement made in certifying questions to the Supreme Court, which is adopted as our statement in this opinion, we omitted therefrom that portion of the court's findings

which reads as follows:

"Meaning thereby such an interest as the child would be entitled to take in case of intestacy, or in case of last will and testament by equal provision with his own children, if any, and it was so understood by Mrs. Dallam."

We did this because, after a careful consideration of all the evidence bearing upon the point, we concluded that the finding was not justified. The evidence upon this issue consists of proof of statements made by Mrs. Harris as to what the antenuptial agreement between herself and Mr. Harris was. this point Mr. Branch T. Masterson testified that just after the reading of the wills Mrs. Harris said to him, quoting the language of the witness:

On

"Well, she said to me that, at the time she behim, he had promised to adopt her daughter as came engaged to Mr. Harris, engaged to marry his daughter."

Miss Reba Masterson, one of the plaintiffs, a granddaughter of Mrs. Harris, testified to a conversation she had with her grandmother on this subject, as follows:

"She said they were standing at the gate, my mother was standing beside them, and that he was saying how much better it would be for the child, too, if she would consent to marry him. He said that he would adopt her as his own, and then grandma went on to say that he did adopt her.'

Certainly estoppel cannot be predicated upon the agreement of Mr. Masterson not to insist upon receiving the $3,000 bequeathed to him in trust for his children and to be used for their education. This bequest was conditioned on Mrs. Harris' acceptance of the will in lieu of her community interest, and the evidence clearly shows that she rejected it. On this point Mr. Masterson testified that at the meeting at which the wills were read Mrs. Harris expressed dissatisfaction with the will and said that she did not think it was just to her, that it was not the will she had understood Mr. Harris intended to make, and that she would not recognize it. The fact that the will was not offered for probate, and that all of the parties to the agreement agreed that Mrs. Harris, instead of taking under the will, should take a half interest in all the property, and the fact that this agreement was recognized and acquiesced in during the remainder of Mrs. Harris' life is proof that the contingency under which the bequest of the $3,000 to Mr. Masterson should be payable never arose. His response, upon being asked by the parties to the agreement as to what he thought of it and in assenting to it, that "they could do as they pleased, that if they did not offer the wills for probate he would 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 child, Annie W. Dallam, about four years old, 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 had not kept his word to her, referring to no provision being made for her in his wills."

[3, 4] We come now to a consideration of a cross-assignment of error presented by the

appellees. It is as follows:

"The court erred in finding as a fact that it

Again she says:

"She laid special stress upon his having promised to adopt her; * * *that he said as soon as they were married he would make her his own child."

The findings of fact in the probate proceedings, which were introduced in evidence, and to the introduction of which no objection is here urged, contain the following:

We think that this evidence proves nothing more than a promise upon the part of

Dallam as his heir under the statute as it then existed, and falls short of proof that he contracted with Mrs. Dallam that her child should have an interest in his estatemeaning thereby such an interest as the child would be entitled to take in case of intestacy, or in case of last will and testament by equal provision with his own children. But if we are mistaken in this, and even if the evidence had shown the existence of a binding contract upon the part of Mr. Harris to give to the child such an interest in his estate as a child of his own would take in case of intestacy, or in case of last will and testament by equal provision with his own children, we do not think, in view of the state of the pleadings of the plaintiffs, that the proof of such facts could properly in any event have become the basis of a judgment in their favor. No such contract was pleaded, but only the promise to adopt, and the fact that the promise was faithfully performed by Mr. Harris on the day of his marriage with Mrs. Dallam, by executing an instrument of adoption and filing the same for record in the oflice of the county clerk of the county of their residence. Their pleading on this point is as follows:

FITZGERALD et al, v. AYRES et al. *
(No. 7350.)

(Court of Civil Appeals of Texas. Dallas.
June 19, 1915. Rehearing Denied
Oct. 16, 1915.)

DEATH

5-WILLS 775-CONSTRUCTION— SURVIVORSHIP-INTENTION.

A husband and wife made their wills, each naming the other as primary beneficiary, but each in the event of prior death of the other naming their foster son as sole beneficiary. They were frozen to death in the same snowstorm. There was no evidence as to which died first. Held, that the son would take, there simultaneous death, and, it being the evident being no presumption as to survivorship or intention of both that he should take, the wills would stand as if they contained only the bequest to the son.

Dig. 87; Dec. Dig. 5; Wills, Cent. Dig. [Ed. Note.--For other cases, see Death, Cent. §§ 1997-2000; Dec. Dig. 775.]

Error from District Court, Dallas County; Kenneth Foree, Judge.

Action by W. H. Fitzgerald and others against R. C. Ayres and L. R. Terry, executors of Willis A. Skinner and of Sallie E. Skinner, deceased. Judgment for defendants, and plaintiffs bring error. Affirmed.

Wood & Wood, W. H. Clark, and W. T. Strange, all of Dallas, for plaintiffs in error. Chas. F. Clint and Chilton & Chilton, all of Dallas, for defendants in error.

"That heretofore, to wit, in 1852, John W. Harris and Annie Pleasants Dallam, who was then a widow, then citizens of the county of Matagorda and state of Texas, entered into an antenuptial marriage contract in which they agreed to be married, and she and John W. HarTALBOT, 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 legal heir of said John W. Harris, and became entitled to all the rights and privileges in law and equity of a legal heir of said John W. Harris."

of said minor, hereinafter called defendants, to recover all the real and personal property belonging to the estates of said deceased persons, which property is fully described in the petition. There is no controversy over the pleadings, and it is unnecessary to set them out. The material facts are as follows: Some of the plaintiffs are the next of kin and sole heirs of the said Willis A. Skinner, and the others are the next of kin and sole heirs of Sallie E. Skinner, and Willis A. Skinner and Sallie E. Skinner were husband and wife. On the 21st day of August, 1911, the said Willis A. Skinner and his said wife died in a snowstorm while ascending, on foot, Pike's Peak, in the state of Colorado, and they were buried in the city of Dallas, Tex., at the same time, on the succeed

For these reasons the findings of fact by the trial court, complained of in the crossassignment, cannot be adopted by us as a part of our findings of fact. In view of the importance of the legal principles involved in the questions presented for review upon this appeal, and of the magnitude of the estate in litigation, we have given mature consideration to all the questions presented by appellants for a reversal of the judgment appealed from; but it is our conclusion that none of their assignments point out reversible error. The only two questions in regard to which we have had serious doubt have been decided by the Supreme Court ing Sunday. They had resided in the said adversely to appellants. We think the judgment of the court below should be affirmed, and it has been so ordered. Affirmed.

city of Dallas a number of years, and had acquired and owned at the time of their death property of the estimated value of $60,000, the larger part, if not all, of which

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

« ÀÌÀü°è¼Ó »