"About 1870, Felix Dancy and wife, Mattie Dancy, two negroes, purchased as community property 40 acres of land in Limestone county. There were born to them two children, Celester Bluitt and Enes Carter. Mattie Dancy at the time of her marriage with Felix had one child, Ella Hicks. Felix Dancy died a number of years ago, leaving as his heirs his wife and two children above named. The discovery oil well in the Mexia field was located on the Dancy 40 acres of land and the property has therefore become and is very valuable. As the result of the discovery of oil, a great deal of litigation arose over the title to the land in question. Mattie Dancy, Enes Carter, and Celester Bluitt employed Ira Lawley, an attorney, to represent them in their various phases of litigation, and as compensation for his services conveyed to him an interest in the property. Mr. Lawley, during the last years of Mattie Dancy's life, by reason of her being very feeble in mind and body, took charge of certain revenues produced from her estate and collected the moneys on some judgments rendered in her favor and paid out certain sums for her benefit. Mattie Dancy died in 1924, intestate, and her daughter Ella Hicks died a few months before Mattie died. A few months after the death of Mattie Dancy, appellees in this case, some twenty-four in number, who are the children and grandchildren of Ella Hicks, brought this suit against Ira Lawley, Celester Bluitt, and Enes Carter for the interest in the Mattie Dancy estate which they inherited through their mother, Ella Hicks. They claimed an undivided one-third interest in Mattie Dancy's community interest in the 40 acres of land, including the royalty and mineral rights, together with one-third of the money which Mr. Lawley had collected and had in his possession for Mattie Dancy at the time of her death.
"The appellants all answered and set up their respective claims in and to the estate of Mattie Dancy, deceased; Ira Lawley claiming that he owned all of the interest of appellees because he had purchased same from Ella Hicks before her death, and further that he had purchased all of the property from Mattie Dancy before her death. He further set up that he was entitled to a number of credits and effects for moneys which he had advanced to Mattie Dancy during her lifetime out of the funds that had come into his possession as her attorney. Appellants, in addition to their special defenses, filed a general demurrer to appellees' petition. It appears from the record that the trial court overruled certain demurrers and exceptions urged by appellants to the original petition of appellees filed in 1925. Thereafter in 1926 appellees filed an amended petition on which they went to trial, and appellants amended their answer, replying to appellees' amended petition, in which they pleaded a general demurrer, but same was not called to the trial court's attention, and no order was made thereon by the trial court. The cause was tried to a jury and submitted on a number of special issues. All of the offsets claimed by Mr. Lawley against Mattie Dancy were determined and disposed of by the judgment. Appellants in their motion for
rehearing in the trial court for the first time urged their general demurrer to appellees' petition, and have assigned error in this court to the action of the trial court in refusing to grant them a new trial because, among other reasons, the trial court did not sustain their general demurrer. Appellants contend that their general demurrer should have been sustained for the sole reason that appellees did not allege that there was no administration on the estate of Mattie Dancy and that there was no necessity for administration on said estate. In our original opinion we overruled this assignment on the theory that there were matters in controversy between the parties that the county or probate court could not dispose of, and for said reason, under the authority of Groesbeck v. Groesbeck, 78 Tex. 664, 14 S. W. 792; Lauraine v. Ashe, 109 Tex. 69, 191 S. W. 563, 196 S. W. 501, and Lauraine v. Masterson (Tex. Civ. App.) 193 S. W. 708, and Bartholomew v. Bartholomew (Tex. Civ. App.) 264 S. W. 721, the district court would have jurisdiction to hear and determine the entire cause On motion for rehearing filed by appellants, we withdrew the original opinion and sustained appellants' assignment presenting said issue. We thereafter overruled appellees' motion for rehearing, and after said motion had been overruled, the case of Dowlin v. Boyd, 291 S. W. 1095, by the Commission of Appeals, was for the first time called to our attention.
"It appears that in the Dowlin v. Boyd Case, 284 S. W. 636, supra, the Court of Civil Appeals at Fort Worth, following the Richardson v. Vaughan Case, 86 Tex. 93, 23 S. W. 640, reversed the judgment of the trial court because the petition did not allege that there was no necessity for administration upon the estate of the deceased. The facts in this case are almost identical, as far as this issue is concerned, with the Dowlin v. Boyd Case. As in that case, the answer contains a general demurrer, but it was not called to the trial court's attention, and in this case, as in the Dowlin v. Boyd Case, the petition did not allege that there was no necessity for administration upon the estate of the deceased. Neither did the petition in the present suit allege that no administration was pending. The Commission of Appeals (291 S. W. 1095) in the Dowlin v. Boyd Case, in reversing the judgment of the Court of Civil Appeals (284 S. W. 636), said:
"`While the answer of the defendants in error embraced a general demurrer, it (the demurrer) was not presented to the trial judge, and no action was taken thereon. Such being the situation with reference to the general demurrer, the general rule is that appellate courts treat the matter as having been waived, unless the general demurrer presents a question of fundamental error, as, for instance, that the error is of such nature as that it could not be cured by an amendment. Had there been a special exception levelled at the petition on account of the fact that no such allegation appeared therein, it is evident that the court would have sustained the exception, but would have permitted the plaintiffs in error to have filed a trial amendment alleging that no necessity existed for an administration on the estate of David Jackson, deceased.'
"It appeared to us that our holding in this case sustaining the assignment challenging the overruling of appellants' general demurrer was in conflict with the Dowlin v. Boyd Case, and by reason thereof we set aside our order overruling appellees' motion for rehearing and said motion is now pending in this court. By reason of our being in doubt as to the correctness of our holding, and by reason of the apparent conflicts, we deem it advisable to certify to the Supreme Court for its determination the following questions:
"First question: The general demurrer in this cause not having been called to the trial court's attention...
