"This suit was brought by appellees against appellant to enforce a contract of sale of a certain lot in the city of Dallas, on which is situated a five story brick building, known as the `Cockrell Building.' Defendant admitted to making the contract, but contested plaintiffs' right to convey a fee-simple title to an undivided one-half interest to said property. A trial resulted in a judgment for plaintiffs, and the cause is now pending here for review.
"The case comes up upon an agreed statement of facts made in accordance with article 1293, Rev. St. 1895, which shows that Mrs. S. H. Cockrell at the time of her death, in 1892, owned certain real estate in the city and county of Dallas, among which were lots 11, 12, and part of lot 13, of the subdivision of what is known as the `Spear Block,' being the property in controversy. At her death she left a will, which is as follows:
"`State of Texas, County of Dallas:
"`Know all men by these presents, that I, Sarah H. Cockrell, being of sound mind in good health, knowing the uncertainty of life and the certainty of death and wishing to dispose of my earthly effect according to my own will and desire:
"`Firstly: It is my will that my last sickness and burial expense be paid by my administrator hereafter appointed.
"`2nd. All my debts, dues and demands be paid.
"`3rd. I give to my beloved son and bequeath unto him the following property to-wit: Undivided ½ interest in my five story office building fronting 50 feet on the north side of Main street, west of Sickamore street all of the two lots on the west cor. of Wood and Austin streets running 100 feet on each street now occupied by Henry Struck and Mrs. Marshael all of lot 1 northeast corner Broadway and Elm street being 50 by 100 feet, a brick house being thereon, one and one-half story a basement. All of 4 lots between Commerce and Jackson and Broadway and Water streets being 100 by 200 now occupied by J. M. Bussey as a brick yard. All of one-half block, more or less, on cor. of Jefferson and Street being west of the Grigsby League line and near the intersection of Cochran and Jefferson street. All of the lot running 500 feet off Jefferson street running 100 feet off Wood street, northwest cor. Jefferson street. All of half block between Broadway and Water street, Pacific Avenue 100 by 200 feet.
"`4th. I give and bequeath unto my son Alexander's bodily heirs, Monro and Alexander V. Cockrell, one block between Jefferson and Market Walnet now occupied by William McKinsey, also an undivided half interest in my 5 story office house on north side of Main street.
"`5th. I give unto my son Aleck Cockrell all of 2 lots on southwest cor. of Lamar street X Wood street fronting 100 feet on each street and containing a 2 story brick building with a basement now occupied by Boren & Stuart.
"`6th. An undivided half interest in all the lots and improvements that I own in the block between Commerce and Jackson, Houston and Broadway streets formerly my old home. All of the two lots on southwest cor. of Broadway and Elm streets, fronting 100
feet on east direct west of Compay Mills. All of lot fronting 50 feet on Jefferson street extending back one hundred 50 feet distance from the northwest cor. of Wood and Jefferson street.
"`7th. All of Block fronting on south side of Gaston Avenue 130 feet is opposite Mich Gray's home nor occupied by him as a pasture lot. To have and to hold for his use and benefit as during his life at his death to go to his bodily heirs, all the 2 lots on the cor. of Broadway and Elm he can do what he chooses with them lots.
"`8th. I will and bequeath unto my son Robert B. Cockrell, dec'd. 2 children Clarence and S. Louise Cockrell the following described property: All of my lot 25 by 180 foot on the north side of Elm street extending back to Pacific containing a 2 story brick building occupied by Cahn Bros. all of lot 25 by 100 being on south side of Main street east of Lamar containing a 2 story brick now occupied by Mr. Webb, Jeweler. An undivided one-half interest in all the lot and improvements in block between Commerce and Jackson street Houston and Broadway formerly my old home all of Block in East Dallas lying on Swiss Avenue, it being the same that my son R. B. Cockrell, dec'd. bought of Jefferson Peak, afterwards I purchased the same of him containing one acre more or less. All of 4 lots between Broadway and Water street and Wood and Jackson containing 100 by 200 now occupied by J. M. Bussey as a brick yard, all of half block between Broadway and Water streets Wood and Young & Polk 100 by 200 near the Dallas Elevator, one lot being 50 feet on east side of Austin street, extending back 100 feet same being 150 feet from the southeast corner of Austin and Columbia street. I further that the rest of my property be equally divided a with my sons and my two grandchildren Clarence and Sarah Louis Cockrell, with the exception of my interest in the Todd Milling Company, that goes to my son F. M. Cockrell, a block of 300 by 300 feet on the north west side of Arland street goes to Monroe F. and Vardeman Cockrell out of my estate. My stock in the cotton and woolen mills to be equally divided among my two sons and my two grandchildren of my son R. B. Cockrell. This stock is not transferable for 15 years when Sarah Louis Cockrell is 21 years of age then they shall have the right to draw one-half of their estate but not to sell the Elm street, Main street or my old home on Commerce and Broadway at their death it goes to their heirs if they, one of them dies before come to the years of maturity it shall revert to the other, and if both should both die without issue then at their death this property that is not allowed to be sold shall revert back to my heirs. Further if Clarence should be in business at the age of 21 he is not to draw $1.00 more from my estate until after he is 40 years old, the said Monroe and Aleck and Vardeman Cockrell, shall not sell a block that lies between Jefferson and Market or the half interest in the 5 story office building on Main at their death and shall revert to their heirs. I appoint Michael Gray and my son F. M. Cockrell, as the guardians of my two grandchildren Clarence and S. Louise Cockrell.
"`All taxes and insurance and all other expenses that may accrue of my office building shall be paid out of the rent, the remainder of the rent shall one-half go to the said Monroe and Alexander's credit at the end of the year it is to be placed at interest or in Gov. bonds by their guardian, also all taxes that may accrue and insurance on any and all property owned by any or either of my grandchildren that has been deeded to them heretofore or now be paid out of income from the property that I deed except the 5 story office building that is only to pay its own expense, in keeping up any and all expenses, their half expense of a house in full it is my wish and will be probate and divided according to my will by my own sons this my last will and testament in voking all other wills made before this by me, this the 18th day of August, A. D. in the year of our
Lord, 1890. Sarah H. Cockrell
"`Witness: W. M. Lee. W. Worrill.'
"Filed Sept. 8th, 1893, L. H. Hughes, Clk. Co. Ct., by A. S. Jackson, Deputy.
"Said will was duly probated.
"Thereafter, in 1907, Alice N. Cockrell, joined by her husband, Frank M. Cockrell, brought suit,...
