"This is an appeal from a judgment of the district court of Galveston county, now pending in this court. There are involved in the appeal novel questions upon which we can find no authority in this state or elsewhere, and as to which we are unable to arrive at a satisfactory conclusion. As a decision of these questions will, in our opinion, practically settle the case, we have concluded that it presents a proper case to be certified to the Supreme Court, where they can be finally determined.
"Stated as briefly as possible, and confining our statement to such facts as are material to the questions certified, the plaintiffs are the sole devisees under the will of Mrs. Annie Masterson, who died in 1900, leaving a will duly probated (except that one of the plaintiffs is sole beneficiary under the will of one of such devisees). Of the defendants, John W. Harris and Mrs. Cora Davenport 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 interest 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. 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.
"John W. Harris died in 1887, leaving surviving 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 had 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 homestead 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 plaintiffs, but this legacy was made conditional upon Mrs. Harris accepting the terms of the will. Mrs. Annie P. Harris, John W. Harris, Branch T. Masterson, and Miss Rebecca P. Harris were appointed independent executors of the will without bond, and were each given $500 as compensation for their services. The will was dated in 1880. Judge Harris died in 1887. Immediately after his death, upon reading of the will in presence of the widow and four children, and Mr. Masterson, Mrs. Harris expressed great dissatisfaction with its terms to herself, and also on account of its failure to make any provision for Mrs. Masterson. The four children 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 this 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, tit. 1, R. S.), an instrument signed by John W. Harris, as follows:
"`The State of Texas, County of Matagorda:
"`Know all men by these presents that I, John W. Harris, a resident of the county and state aforesaid, have adopted and do hereby adopt, as my legal heir, Annie W. Dallam, the only child of the late Mrs. Annie P. Dallam, whom I have this day married.
"`Given under my hand and seal this 1st day of July, one thousand eight hundred and fifty-two. 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, Frederic 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.
"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.
"To this application John W. Harris made answer (which answer was adopted by Kenner Fisher, by his guardian, and Mrs. Davenport) setting up the execution of the will, the death of John W. Harris, and the family compact herein referred to. They admitted the allegations of the orphan asylum and its interest in the probate of the will, and that such probate was necessary and proper `to complete, protect, perfect, and make good of record and in fact its title' to the property mentioned. It was further represented that about 80 other persons, citizens of Texas, occupied the same attitude as purchasers of lands from said heirs as the orphan asylum, and that there was as to them the same necessity to probate the will for the purpose 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...
