author: HARPER, J. DAVIDSON, J.

text:
    BROWN v. STATE.
    (No. 3413.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 10, 1915.)
    1. Criminal Law <§=>600 — Continuance — Absence op Witness — Admissions to Prevent.
    Where, on a trial for homicide, the testimony of one of the two physicians who examined deceased’s body was not materially different j from that which the other physician would have given had he been present, and the state offered to admit that the absent physician would testify as claimed and that such testimony was true, the denial of a continuance was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1342-1347, 1604; Dec. Dig. <§=>600.)
    2. Jury <§=>131 — Examination op Jurors.
    Where the court, in examining a juror who had said that he would not convict upon circumstantial evidence, stated two illustrations to which accused objected, but the juror was excused and the illustrations were not such as could have influenced the jurors selected in passing on the guilt or innocence of accused, there was no error.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. <§=>131.)
    3. Criminal Law <§=>479 — Evidence—Opinion Evidence — Competency op Witnesses.
    A doctor, who had practised medicine for 27 years, had performed major and minor operations in surgery, and when attending medical school had studied surgery and physiology, was competent to testify as an expert witness regarding the effect of a bullet wound in the breast which penetrated the heart.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1067, 1068; Dec. Dig. <§=>479.]
    4. Criminal Law <§=>448 — Evidence—Facts or Opinions op Witness.
    On a trial for homicide in which it appeared that deceased’s body was found in a hall, and that the pistol with which he was killed was found in an adjoining room, the testimony of a witness that he discovered blood prints or finger or thumb prints on the casing of the door leading to such room, that the blood was fresh on the door when he made the discovery the day deceased was killed or the following morning, that accused had a defective thumb, that it looked to have been mashed, was as broad again at the end as it should be, and ran to a point on the right-hand side, and that the blood print on'the board showed that the point of the thumb was extra large and a defective thumb on the right-hand side like he described it, was properly admitted, as the witness did not express his opinion, but testified to facts as witnessed by him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. <§=>448.]
    5. Criminal Law <§=>404 — Evidence—Demonstrative Evidence.
    The' door panel upon which such blood prints were discovered, which was sawed out and preserved, and which was identified at the trial, was properly admitted.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dee. Dig. <§=>404.]
    6. Criminal Law <§=>364 — Evidence — Res. Gestae.
    Where, from the time accused gave the alarm and called a number of people stating that he thought deceased was dead, the minds of those present were directed to ascertaining the mode of death and to finding the weapon with which the killing was done, and accused participated until his arrest in the search for the weapon, which was continued in his presence, evidence that he was nervous while the others were searching the room in which the weapon was found, and that, after it was found and was being taken away with other pistols also found in the same room, he turned pale and flushed up and appeared nervous, was properly admitted as res gestae, though it related to his conduct while under arrest, as time is not the only determining factor as to res gest»; and if all the facts and circumstances show the matters to be so connected as to be part and parcel of the transaction, acts and conduct springing out of and forming a part of it are admissible as a part of the transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. <§=>364.]
    7. Criminal Law <§=>829 — Instructions Covered by Those Given.
    Where, on a trial for homicide, the court defined “malice aforethought,” it was unnecessary to give a requested charge regarding that matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <§=>829.]
    8. Homicide <§>=286 — Instructions—Definition oe Express and Implied Malice.
    Though the degrees of murder have been abolished by legislative enactment, it was not error on a trial for homicide, to define express and implied malice, as murder may be committed upon either kind of malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. <§=>286.]
    9. Criminal Law <§=>1173 — Instructions — Matters Not in Evidence.
    On -a trial for homicide, the refusal of an instruction that the jury should not consider any fact or circumstance not in evidence was not error where it did not appear that they did consider or discuss any fact or circumstance not admitted in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Doc. Dig; <§=>1173.]
    10. Criminal Law <§=>829 — Instructions — Exculpatory Statements.
    Where the statements of accused admitted in evidence were not in the nature of confessions of guilt, but were wholly exculpatory and tended only to show a lack of knowledge of how deceased’s death occurred, an instruction requiring his guilt to be found beyond a reasonable doubt necessarily required a finding that his protestations as to such lack of knowledge were untrue, and no other or further charge on that point was required.
    [Ed. Note. — For other cSses, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829.]
    11. X-Iomicide <§=>250 — Evidence — Weight and Sufficiency.
    On a trial for. homicide, evidence as to whether deceased was killed by accused or killed himself intentionally or accidentally held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <§=>250.] Davidson, J., dissenting. ;
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    M. A. Brown was convicted of murder, and he appeals.
    Affirmed.

      Hickman & Bateman, of Stephenville, and McLean, Scott, McLean & Bradley, of Et. Worth, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted by the grand jury of Erath county. The venue of the cause was changed to Hood county, and appellant when tried was convicted of murder, and his punishment assessed at life imprisonment in the penitentiary.

Appellant contends that the court erred in overruling his application for a continuance on account of the absence of Dr. J. R. Sessums. The facts show that deceased, Walter Edwards, was found upstairs in the hall of a store belonging to appellant; that he fell in a crumpled position, and as he lay the cause of death could not be ascertained. Before moving the body both Dr. Bryant and Dr. Sessums were called. When they arrived they had the body moved, and it was then ascertained that death was caused by a bullet wound in the left breast which penetrated the heart. By the evidence, every other theory as to the cause of death is excluded other than that appellant killed deceased or deceased either intentionally or accidentally killed himself. As before stated, the body of deceased was found dead in the corner of the hall near the stair landing; in a room some 29 feet away the pistol, with which the shot was fired, was found between two boxes. The record clearly demonstrates this was the weapon that inflicted the wound. Appellant’s contention is that the circumstances would show, or "raise a reasonable doubt that such state of facts might be true, that deceased while upstairs 'doing some work found the box containing these pistols, and, they being of a novel kind, while experimenting with one of them he himself discharged it, dropped the pistol, and it fell between the boxes, and then deceased turned and walked the distance from this box to near the head of the stairs and fell.

Of course, the state’s, contention is that appellant fired the shot; that the nature and character of the wound would render it practically impossible for deceased to have walked that distance after being shot; that if deceased had either intentionally or accidentally himself fired the pistol, that his clothing and body would have been powder burned; that the range of the ball shows it could not have been self-inflicted, etc.

As Dr. Sessums was one of the physicians who had the body moved, and who made the first examination, and afterwards held a post-mortem examination, it is strenuously insisted in this court that his testimony as to the nature and character of the wound would render it far more probable that deceased could walk and travel the distance from where the pistol was found to where the body was found than would the testimony of Dr. Bryant who was present and testified on this trial. We have carefully read the testimony of Dr. Bryant in the statement of facts, and what it is stated in the motion for a continuance Dr. Sessums would testify if he was present, and we find no material variance.

Dr. Bryant testified that the bullet entered the body between the second and third ribs, not over an inch from the breast bone; that it did not strike a rib on entering the body; that the bullet entered the heart in the upper part of the left auricle, went through the heart, and came out at the lower part of the left ventricle, something like an inch from the tip; that the ball entered the left side of the heart, passing through the left auricle and through the left ventricle, then through the lung, through the dia-pkram, and then through the left lobe of the liver and into the spleen, cutting a little furrow in the tip of the spleen, and struck the eighth rib, dropping into the abdominal cavity.

It is alleged in the application for a continuance that if Dr. Sessums was present he would testify:

“I have been practicing medicine 15 or 16 'years. I am a graduate of the Medical Department of the University of Texas. I took surgery with my medical course. Since I graduated I have done surgical operations, including some major operations. . I remember having been called to look over Walter Edwards after he was killed. I saw him in that position in the corner of the hall right at the door. He was kinder jammed up against the wall like, and he was not laying sprawling, but jammed up, his left limb was drawn up, just about come under the wound, and the right limb was extended and the right arm over the right knee, and he was laying more on his face with his head turned a little to the left. I couldn’t say as to how his right foot was. I remember the blood from the wound stained the leg, and he was laying pretty nearly flat with the left leg under him and jammed up against each wall kinder in the corner, and his hat was kinder under his head (he was kinder facing the wall). I took hold of Edwards first and helped to move him. I didn’t know then what had killed him; that is the first we knew of what killed him. After I moved him I removed his clothing. I looked at his shirt before I moved him. If there were any powder stains there we couldn’t make it out. The hole in the shirt looked like a clear cut (we thought there might be a little powder burn, but we decided there was not; we called that to mind and mentioned it there). We removed the clothing to some extent. We opened the shirt and found the wound, which was located just to the left of the sternum, just to the left of the breast bone, between the second and third ribs. Before we probed we thought the bullet went down from the way the upper edge of the wound looked — the indications were it had gone down. We after-wards held an autopsy and obtained the track of the bullet. We made á center incision right through the center. We began up above where the wound was, came down, made the incision, and then we separated the ribs from the breast bone, and then we cut the ribs along so we could turn them out and expose the vissary of the organs, and after exposing that, we began searching or tracing out the route of the bullet. The bullet entered the left auricle, the edge of it. The heart lay in that position like (witness indicated on himself as to the position of the heart), and struck the left auricle and went through that and came out through the edge of the left ventricle, going through the left side; it punctured the lung, and then the diaphragm, and then through the left lobe of the liver, and tore a furrow through the spleen, and struck the diaphragm and the left rib. Just struck the diar phragm, didn’t go through it any more; but we found the bullet free just bélow the spleen — loose in the abdominal cavity. I took the bullet out. I might have handed the bullet to Will Hallmark — were several there. It strikes me Will Hallmark took the bullet. In my judgment as a physician, the immediate effect of a gunshot wound such as I have described would be hemorrhage or shock or paralysis of the heart. In most cases the subject would collapse. Some say the kind of wound I have described produces immediate paralysis. Some say it pro- ■ duces shock; I couldn’t say. Some wounds through the heart are not fatal as others. I don’t know whether the wound I have described struck sufficiently center to be immediately fatal.”

If there is any material difference in the testimony of the two doctors, as before said, we have been unable to detect it. In addition to this, the state offered to admit that Dr. Sessums would testify as alleged, and that such testimony is true. Under such circumstances, there was no error in overruling the application for continuance. McGrew v. State, 31 Tex. Cr. R. 339, 20 S. W. 740; Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753; Jackson v. State, 48 Tex. Cr. R. 650, 90 S. W. 34.

In the next bill it is shown while J. H. Brazzil, a venireman, was being examined, he stated he would not convict upon circumstantial evidence. The court then examined the juryman and stated two illustrations to which appellant objected. This juror was excused by the court, and, as the illustrations used by the court were not such as could have in any way influenced the jurors selected in passing on the guilt or innocence of appellant, the bill presents no error.

As Dr. W. B. Goodner had practiced medicine for 27 years, had performed major and minor operations in surgery, and when attending medical school had studied surgery and physiology, the court did not err in holding him competent to testify as an expert witness regarding the effect of a wound of the character shown to have caused the death of deceased.

By the record it is shown that Bob Peacock, the constable, was permitted to testify:

“I examined the do'orfacings on all those rooms, and I discovered blood prints or finger prints or thumb prints on the casing of the south door of the northwest room. M. A. Brown has a defective thumb on his left hand. When I found the thumb print or blood mark on the doorcasing, there were several people up there and I mentioned it to them. I afterwards sawed the panel of this door out and brought it to Stephenville and turned it over to the sheriff. (Witness identifies the door, panel just above referred to.) It is now in the same condition it was when I took it away from the building, with the exception that this blood print looks a little dimmer. The blood was fresh on the door when I made the discovery of it. I don’t know whether it was the afternoon of same day that we found Walter Edwards dead in the Brown building that I discovered this blood, or the following morning, but it was one of the two. It appeared at that time to be fresh. The defendant’s thumb looks to have been mashed and is as broad again at the end as it should be. The thumb is sorter run to a point on the right-hand side. The blood print I find on this board is shown that the point of the thumb is extra large, defective thumb on the right-hand side like I described it.”

This blood was found on the doorfacing of the room in which the pistol was found, and which leads into the hall where the dead body was found. This testimony was properly held admissible, and should not have been excluded on the ground that it was an opinion of the witness. He was testifying to facts as witnessed by him, and here we might add there was no error in admitting in evidence the section of door sawed out and identified. Turner v. State, 48 Tex. Cr. R. 585, 89 S. W. 975.

This is a case depending entirely upon circumstantial evidence. The evidence shows that appellant owned a store; that on the day of the homicide deceased was employed to work, and was at work upstairs. Justice Abies was in this store on business with appellant, and while there deceased came downstairs and got a drink of water, returning to his work. As he left the store Justice Abies looked at his watch and found it was 11:30 a. in., only appellant and deceased being in the store at that time. No one else is shown to have entered the store until after the dead body was found — in fact the evidence excludes the idea that any one else was in the store other than appellant and deceased.

Mr. W. H. Sneed testified that he was in business about 150 feet from appellant’s place of business; that he heard the shot that killed deceased, and it occurred at 11:40 a. m., which would make it just ten minutes after Justice Abies left. Mr. Sneed fixes the time definitely by saying he had occasion to go out of his store and looked at his watch.

The evidence shows that about five minutes-after this appellant appeared on the street and called Mr. Faust and others, and said, “Come quick;- I think Walter Edwards is dead.” Several went and found the dead body at the place hereinbefore stated. The evidence makes it clear that appellant was not then arrested and not placed under arrest until he had gone to his dinner and was returning to the store. The county attorney having arrived, he then had appellant arrested. Consequently everything said and done by appellant up to this time was admissible, and we do not understand appellant’s objection reaches any matter that took place prior to this time. In one bill it is shown that after appellant’s arrest he went back to the store, and went into the room where the pistol was subsequently found between the boxes, and L. B. Thomas was permitted to testify that appellant came in the room while they were making a search of the room, and went and stood around these boxes where tlie pistol was later found. That when appellant came in the room and went to these boxes he was “very nervous.” Appellant objected to the statement that appellant was very nervous on the ground “it was a conclusion and did not state what appellant did.” In another bill it is made to appear that subsequent to this time appellant saw them carrying the box, by the side of which the pistol was found, and which box contained five other pistols of the same character, across the street; that he “turned pale and flushed up and appeared very nervous.” To this testimony appellant objected, claiming that the acts and conduct of appellant while under arrest are not admissible. The bills make it clear that no remark or statement of appellant while he was under arrest was admitted, but only his conduct as to being nervous when they were searching the room in which the pistol was found, and when it was found and the officers were carrying it and the box containing five others like it across the street appellant turned pale, his face flushed up, and he appeared to be very nervous. Mr. Wharton in his excellent work on Criminal Law says:

“The effort of the accused to escape or otherwise evade justice is a circumstance admissible in evidence against him from which guilt may be inferred. For the same purpose, confession, prevarication, and embarrassment on the accused’s part, when charged with the crime, may be put in evidence against him, and so of stolidity and indifference, and whatever would sustain an inference as to complicity in the offense charged.”

In the case of Noftsinger v. State, 7 Tex. App. 323, it is held:

“Criminative or inculpatory circumstantial evidence is derived from the conduct of the party accused, and external objects or physical facts with their appearances as indicative of such conduct. Hence, as is well remarked by Mr. Burrill, ‘where a case of suspected crime has become the subject of judicial investigation, and the general fact of the commission of the crime has been ascertained, and particularly where vigorous measures have been set on foot to trace out the individual perpetrator, the idea, now converted into prospect, of discovery, and that becoming a more and more probable event as fact after fact is brought to light, naturally and almost necessarily fills the mind with alarm, particularly where the criminal finds his own person drawn (or is likely to be drawn) within the sphere of investigation. Emotion and agitation exhibited under such circumstances, especially when no charge of guilt has yet been made or insinuated, are regarded, and justly, amongst the most convincing evidences of criminal agency that can be submitted to a human tribunal.' Burrill on Cir. Ev. 466. The court did not err in admitting or in refusing to strike out this evidence. Handline v. State, 6 Tex. App. 348; Roscoe’s Cr. Ev. 18, 19.”

And in the case of Handline v. State, 6 Tex. App. 362, this court held:

“On the trial, John Dobbin, one of the state’s witnesses, proceeded to testify upon his direct examination as follows, to wit: T placed the prisoner at the foot of the coffin.’ The defendant here asked the court to instruct the witness not to state anything the prisoner said or did, or how he acted, he then being under arrest. The court, however, permitted the witness to testify as to what the defendant did, and how | he acted, by permitting the witness to testify as follows, to wit: ‘He showed scarcely any I emotion whatever until the body was raised, by my order, and placed in a sitting position; he then looked down and acted as if he was swallowing with his mouth shut’ The witness was permitted to testify as to the acts only of the defendant. ⅜ '⅜ ⅜ While the confession of a defendant while under arrest shall not, as a general rule, be used against him, the conduct of the party, either before or after being charged with the offense, as indicative of a guilty mind, is proper to be laid before the jury; and Mr. Roseoe says this is a very useful kind of evidence, and one which no judge need seek to withdraw from the consideration of a jury. Roscoe’s Or. Ev. 18, 19.”

In Hart v. State, 15 Tex. App. 230, 49 Am. Rep. 188, this court said:

“As to the competency and admissibility of the matters testified to as evidence, it seems to be now well settled that any indications of a consciousness of guilt by a person charged with or suspected of crime, or who, after such indications, may be suspected or charged with crime, are admissible in evidence against him; and the number of such indications cannot be limited or their nature or character defined. However minute or insignificant they may be, if they tend to elucidate the transaction they should be admitted. Whart. Crim. Ev. (8th Ed.) § 751; McAdory v. State, 62 Ala. 154; Handline v. State, 6 Tex. App. 347; Noftsinger v. State, 7 Tex. App. 301; Burrill on Cir. Ev. 466.”

While the broad rule thus announced has to some extent been limited by the decisions of this court (Nolen v. State, 14 Tex. App. 485, 46 Am. Rep. 247), yet in none of them wher-e the acts and conduct are res gestae of the transaction has such testimony been held to be inadmissible. All the evidence in this case goes to show that, from the time appellant gave the alarm, the minds of all those present were directed to ascertaining first the mode of death, and then continuous search was made to find the weapon, in which appellant participated until his arrest, and then in his presence continued, and it was while this was occurring, and going in the room where the pistol was found, and the carrying it away, caused these manifestations. Time is not alone the determining factor as to res gestae, but if all the facts and circumstances show the matters to be so connected as to be part and parcel of the transaction, and the acts and conduct spring out of and form a part of it, such acts and conduct become admissible as part of the transaction.

In Powers v. State, 23 Tex. App. 67, 5 S. W. 158, this question was again before the court, and the testimony held admissible, the court saying:

“ ‘Res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when relating the events. * * * Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary in fact with each particular case. * * * They need not be coincident as to time if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. In other words, they must stand in immediate causal relation to the act, and become part either of the action immediately producing it, or of action which it immediately produces. Incidents which are thus immediately and unconsciously associated with an act, whether such incidents are doinigs or declarations, become in this way evidence of the character of the act.’ Wliart. Crim. Ev. (Sth Ed.) §§ 262 and 263. Again he says: ‘But we must remember that continu-ousness cannot always be measured by time.’ Id. § 264. And again: Tnstinctiveness is the requisite, and when this obtains the declarations are admissible.’ Id. § ■ 691. See, also, Bradberry v. State, 22 Tex. App. 273 [2 S. W. 592], and Cartwright v. State, 16 Tex. App. 473 [49 Am. Rep. 826]. We are of opinion the evidence was admissible as res gestae.”

The testimony would, clearly be admissible under this case, and under all these decisions and the rules laid down in the textbooks the court did not err in admitting the testimony. The writer individually thinks the rule laid down in the Handline Case is supported by the great weight of the authority, and should be the rule in a case of circumstantial evidence (Wright v. State, 36 Tex. Cr. R. 35, 35 S. W. 287); but it seems to have been otherwise held in Fulcher v. State, 28 Tex. App. 472, 13 S. W. 750.

The court in his charge instructed the jury:
“ ‘Malice aforethought’ is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
“ ‘Malice’ is either express or implied.
“ ‘Express malice’ is where one with a sedate, deliberate mind and formed design unlawfully kills another, which formed design, is evidenced by external circumstances, as preconcerted schemes to do the deceased bodily harm.
“ ‘Implied malice’ is that which the law infers from or imputes to certain acts however suddenly done. Thus when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, or tend to mitigate, excuse, or justify the act, the law implies malice, and the law does not further define implied majice than if the killing is shown to be unlawful and there is nothing in evidence on the one hand showing-express malice, and on the other hand there is nothing in. evidence that will reduce the killing below the grade of murder.”

Having thus defined “malice aforethought,” it was wholly unnecessary to give the special charge requested in regard to that matter, and there was no error in defining both express and implied malice. It is true the degrees in murder have been abolished by legislative enactment, but murder may be committed upon either express or implied malice under the present statute, and a correct definition of those terms is not erroneous.

A special charge was asked that the jury be instructed not to consider any fact or circumstance not in evidence. If the record disclosed they did consider or discuss any fact or circumstance not admitted in evidence, the matter would present error, but no such showing is even attempted- to be made.

The statements of defendant admitted in evidence, made before arrest, were not in the nature of confessions of guilt, but were wholly exculpatory and tended only to show a lack of knowledge of how the death occurred. In requiring the jury to find appellant guilty beyond a reasonable doubt, necessarily required a finding that his protestations as to lack of information as to the cause of death were untrue, and no other or further charge was required on that issue than the one given. The facts relied on by the state to show appellant’s guilt were that they were the only persons in the store; that deceased was killed with a pistol belonging to appellant, found concealed between two boxes; that there, was blood on a paper near the box where the pistols were found; that there was no blood found from the point where the pistol was found to the point where the body was found, except on the doorfacing made by some one placing their hand on the facing, as one might make in passing out; that the peculiar imprint made on the doorfacing showed a peculiar formation of a thumb — a broad thumb, deformed on one side. Appellant is shown to have had that kind of a thumb. That it is not probable that a person shot as was deceased could have gone from the box where the pistol was found to the place where the dead body was found, but that instead death would be almost, if no't instantly, instantaneous. We have studied the record, and it conclusively excludes the idea that any one else other than appellant or deceased fired the shot, and to our minds it authorized the jury to find as positively that it excluded the idea that deceased could have either intentionally or accidentally fired the shot. The range of the bullet as traced show it to have been practically impossible for one to so hold the pistol as to inflict the wound. While it may be said that the evidence to show motive is slight, but in the absence of motive being shown, and in a case of wholly unexplained killing, the homicide has always been held to be murder upon implied malice, and as the jury is now authorized to assess the same punishment whether the killing is upon express or implied malice, we have come to the conclusion we would not be authorized to disturb the verdict.

In this ease the verdict of the jury found the appellant guilty of murder and assessed his punishment at confinement in the penitentiary for life. The sentence, based on this, fixed the punishment specifically at life imprisonment instead of an indeterminate sentence as required by the act of August 18, 1913, p. 4, §§ 1-10 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6088a, 6089, 6090, 6091, 6091a, 6091b, 6091j, 6095b). The sentence will therefore be reformed by this court so that the punishment of appellant will be assessed at the indeterminate sentence and time of not less than five years nor more than for his lifetime. The sentence is therefore reformed in accordance with said act, and the clerk of this court is directed to enter the proper sentence in accordance with this opinion and said law, and certify the same properly to the court below.

The judgment is affirmed.

DAVIDSON, J.

I do not agree to this af-firmance. The facts are not sufficient The evidence is voluminous and a collation of same would serve no useful purpose to our jurisprudence. The circumstances do not meet the requirements of the law of circumstantial evidence.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. BERGERON v. TRAVIS COUNTY COURT et al.
    (No. 3354.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.
    Rehearing Denied Feb. 17, 1915.)
    1. Criminal Law i&wkey;84 — Jurisdiction—Corporation Court.
    Under Const, art. 5, § 1, declaring' that the judicial power of the state shall be vested in certain named courts and in such courts as may be authorized by law, as amended in 1891 to authorize the Legislature to establish other courts, the Legislature was authorized to enact Rev. St. 1911, art. 904, providing that the corporation court shall have jurisdiction in all criminal cases under ordinances, and, concurrently with any justice of the peace, in all cases arising under the criminal laws of the state in which punishment is by fine only, not to exceed $200.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dee. Dig. <&wkey;>84.J
    2. Criminal Law <&wkey;1018 — Appellate Jurisdiction — County Court.
    Where the corporation court had jurisdiction to try an offense under the criminal law of the state, the county court had jurisdiction on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2577; Dec. Dig. &wkey;1018J
    3. Criminal Law <®=»S8 — Jurisdiction of Corporation Court — “Vagrant.”
    A prosecution on complaint charging that defendant, on or about a certain day and on each successive day thereafter to a certain date, was a vagrant, in that she was unlawfully and willfully the keeper of a house of prostitution, where prostitutes were permitted to resort and reside for the purposes of plying their vocation, etc., was a prosecution under Pen. Code 1911, art. 634, defining vagrancy and providing by subdivision “j” that every keeper of a house of prostitution shall be deemed a,“vagrant,” punishable under article 639 by fine alone, not to exceed $200, which under the express provision of Rev. St. 1911, art. 904, was within the jurisdiction of the corporation court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 127; Dec. Dig. <&wkey;>88.
    For other definitions, see Words and Phrases, First and Second Series, Vagrancy.]
    4. Disorderly House <&wkey;2 — Prosecution-Statutes.
    Such prosecution was not a prosecution under Pen. Code 1911, art. 496, which defines a bawdyhouse and a disorderly house and article 500, which fixes the punishment to be assessed at a fine of $200, and by imprisonment in the county jail for 20 days for each offense.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 1, 2, 9; Dec. Dig. <&wkey;2J
    5. Criminal Law &wkey;»84 — Jurisdiction—Establishment of Courts — Constitutional Provisions.
    Under Const, art. 5, § 1, declaring that the judicial power of the state shall be vested in certain named courts and in such others as may be provided by law, as amended in 1891, authorizing the Legislature to establish other courts deemed necessary, Code Cr. Proc. 1911, arts. 963, 964, and 965, authorizing mayors within corporate limits to exercise the same criminal jurisdiction as belongs to justices of the peace, providing that proceedings before mayors shall be governed by the same rules as in proceedings before justices of the peace, and giving mayors and justices concurrent jurisdiction, are valid enactments.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 115^-124; Dee. Dig. <&wkey;84.]
    6. Prohibition <&wkey;9 — Jurisdiction.
    It is only in cases in which the court has no jurisdiction, or is exceeding its jurisdiction, that the writ of prohibition will lie, and it will not lie where the inferior court has jurisdiction of the subject-matter and the defendant is duly served with process or voluntarily appears.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. § 35; Dec. Dig. <&wkey;9J
    7. Prohibition <&wkey;l7 — Right to Remedy— Objeotion to Jurisdiction.
    Where defendant, prosecuted in the corporation court, did not there contend that the article under which he was prosecuted had been repealed so1 as to give that court, having jurisdiction, opportunity to rule thereon, and after sentence and appeal to the county court did not make such contention therein, but made it for the first time by petition to the Court of Criminal Appeals for prohibition against the county court, the writ would not issue, defendant not having objected to the jurisdiction of the court at the outset.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. § 66; Dec. Dig. &wkey;3l7.]
    Application by Lillia Bergeron for writ of prohibition to the county court of Travis county and others.
    Writ denied.
    Grover & Posey, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

The record before us discloses that a complaint was filed against the applicant in the corporation court of the city of Austin, in which it was charged that:

Applicant “on or about the 1st day of August, 1914, and on each successive day from that date to the 29th day of August, 1914, was a vagrant, in that she was then and there unlawfully and willfully the keeper of a house of prostitution, in the city of Austin, which said house she did then and there unlawfully keep as a house for the purposes of prostitution, and where prostitutes were permitted to resort and reside for the purposes of plying their vocation,” etc.

On the day the case was called for trial in the corporation court, applicant appeared and filed a plea in which she alleged that:

“The offense attempted to be alleged would be an offense against the criminal laws of the state of Texas, and not a municipal offense, and asked that the case be transferred to a proper court.”

This is all the plea filed in the corporation court other than a plea of not guilty. It was overruled, and when tried she was convicted and fined in tlie sum of $200. Site appealed the case to the county court, and executed a bond conditioned for appearance in the county court in this cause. When the case was reached on the docket of the county court, applicant filed a motion to dismiss, alleging: (1) That as the complaint charges applicant with being a vagrant in that she did then and there unlawfully keep a house for the purpose of prostitution, and where prostitutes were permitted to resort and reside, etc., it is insisted that the offense alleged is brought under Pen. Code 1911, arts. 496 and 500, defining and punishing'the keeper of a house of prostitution, in which a portion of the punishment assessed is by imprisonment in jail, and the corporation court would have no jurisdiction of the offense. (2) That corporation courts have no jurisdiction over crimes committed against the state, and that this prosecution is for an offense against the laws of the state, and not a violation of a city ordinance. (3) It is contended that articles 963, 964, and 965 of the Code of Criminal Procedure are unconstitutional and void, and that corporation courts are no part of the constitutional judiciary of this state. Upon the overruling of the above motion by the judge of the county court, applicant filed a petition asking that this court issue its writ prohibiting the county court from exercising any jurisdiction in this cause, and restraining the county court from proceeding further in this cause, and asks that we enter an order requiring the county court to dismiss the case; the grounds alleged being the same as those alleged in the motion filed in the county court praying for a dismissal of the case. This court ordered the application filed, and set the cause down for a hearing in order to determine whether or not we should issue the writ prayed for. Attorneys for applicant have filed very exhaustive and entertaining briefs, and we have given them careful thought and study.

The first question presented, which is the one presented in the corporation court, is that as the prosecution was for a violation of the criminal laws of the state, and not an ordinance of the city, the city court had no jurisdiction of the offense. This court formerly so held, and in consequence the Constitution was amended in 1891 by providing that:

“The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof,” etc.

Since the adoption of that amendment, the validity of the act creating the corporation courts and defining their jurisdiction has been upheld both by this court and the Supreme Court. In Ex parte Abrams, 56 Tex. Cr. R. 468, 120 S. W. 885,18 Ann. Cas. 45, this court held:

“The question of the authority of corporation courts in cities to try offenses against the state law has been frequently before this court, and has been the subject of radical difference among the judges composing the court, and has resulted in much confusion in the decisions of this tribunal. In the case of Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471, it was held that under our Constitution, ar.t. 5, § 1, declaring that the ‘judicial power of this state shall be vested in certain named courts and in such others as may be provided by lav/,’ the Legislature cannot give a municipal court created as an incident to a municipal corporation, jurisdiction, concurrent with a state court over violations of state laws. Our Supreme Court, however, in an elaborate opinion by Judge Brown in the case of Harris County v. Stewart, 91 Tex. 133 [41 S. W. 650], ruled otherwise. It is in that case in terms held that ‘the Legislature has power, under the Constitution, to confer upon a city recorder the jurisdiction of a justice of the peace over offenses committed against the laws of the state’; and the court refers as authority for this holding to the following authorities: Constitution, art. 5, Amendment 1891; Code of Criminal Procedure, arts. 98, 929; Ex parte Ginnochio, 30 Tex. App. 584 [18 S. W. 82]; Ex parte Towles, 48 Tex. 413; Gibson v. Templeton, 62 Tex. 555; Blessing v. City of Galveston, 42 Tex. 641; Johnson v. Hanscom, 90 Tex. 321 [37 S. W. 601, 38 S. W. 761]; State v. Helfrid, 2 Nott & McC. [S. C.] 233 [10 Am. Dec. 591]; Nugent v. State, 18 Ala. 521; Waldo v. Wallace, 12 Ind. 569; Gulick v. New, 14 Ind. 93 [77 Am. Dec. 49]; Gray v. State, 2 Har. (Del.) 76; Burch v. Hardwicke, 30 Grat. (Va.) 24 [32 Am. Rep. 640]; Hutchings v. Scott, 9 N. J. Law, 218.
“In the later case of Ex parte Wilbarger, 41 Tex. Cr. R. 514 [55 S. W. 968], the rule theretofore announced in Ex parte Leach seems practically to have been overruled. It was in Ex parte Wilbarger in effect held that, under the amendment of 1891, expressly providing that ‘the Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof and may conform the jurisdiction of the district and other inferior courts thereto,’ the Legislature had complete authority to create other courts than those enumerated in the Constitution, and prescribe their jurisdiction. The conclusion reached in that case and the rule therein established has since been the'settled holding of this court. Ex parte Hart, 41 Tex. Cr. R. 581 [56 S. W. 341].”

After the adoption of the above amendment, the Legislature enacted article 904, Revised Statutes 1911, which reads:

“Said court (the corporation court) shall have jurisdiction within the territorial limits of said city, town or village, within which it is established, in all criminal cases arising under the ordinances of the said city, town or village, now in force, or hereafter to be passed, and shall also have jurisdiction concurrently with any justice of the peace in any precinct in which said city, town or village is situated, in all criminal cases arising under the criminal laws of this state, in which the punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars and arising within the territorial limits of such city, town or village.”

As hereinbefore stated, this provision of the statute has been upheld both by the Supreme Court and this court, therefore the corporation court did not err in overruling that plea to its jurisdiction, and, if the corporation court had jurisdiction to try the offense, certainly the county court would have and should entertain jurisdiction on appeal.

It is next alleged that the complaint charges an offense under articles 496 and 500 of the Penal Code. Article 496 defines a baw-dyhouse and a disorderly house, while article 600 prescribes the punishment to be assessed against any one keeping or any one who is concerned in keeping such a house, and fixes the punishment to be assessed at a fine of $200, and by imprisonment in the county jail for 20 days for each offense. If the complaint was filed under these articles of the Code, no one would or could contend that the corporation court of the city of Austin would have jurisdiction of the offense, or that the county court on appeal, under such circumstances, would have jurisdiction of the cause. And, if the complaint had been brought under those articles of the Code, applicant would doubtless be entitled to the writ as prayed for. But was the complaint drawn under those provisions of the Code? By the plain language of the complaint it is made manifest that the prosecution was brought under article 634 of the Penal Code, which article defines vagrancy, and provides, “the following persons are and shall be punished as vagrants,” in subdivision “j” of said article providing that “every keeper of a house of prostitution” shall in law be deemed a vagrant, and the punishment prescribed Vy law for such an offense in article 639 is by fine alone and in a sum not exceeding $200, and if brought under this provision of the Code the corporation court would have jurisdiction of the offense as provided in article 904 herein-before copied, and other provisions of the laws and the Constitution of this state, and, if the corporation court had jurisdiction of the case when filed, the county court would not err in entertaining jurisdiction of the case on appeal. And in so holding we necessarily hold that articles 963, 964, and 965 of the Code of Criminal Procedure are not unconstitutional and void, but are legal and valid enactments under the amendment to the Constitution adopted in 1891. Harris v. Stewart, 91 Tex. 133, 41 S. W. 650, and cases cited, and Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45.

This disposes of all questions presented in the motion to dismiss the case as presented to the county court, and we hold that the county court did not err in overruling said motion as presented to it.

Another question not presented to the county court in the motion filed therein is sought to be presented to this court in the briefs filed; but, as we have held and now hold that the county court committed no error in overruling the pleas presented to it, we do not think applicant entitled to a writ prohibiting the county court from proceeding further with the case. The question sought to be raised for the first time in this court is that, as the articles of the Penal Code defining and punishing a keeper of a bawdy or disorderly house were passed subsequent to the articles defining and punishing vagrancy, those articles defining and punishing keepers of bawdy and disorderly houses by necessary implication repeal subdivision “j” of the vagrancy act (article 634). If. this provision of the law is not repealed by articles 496 and 500 of the Penal Code, the corporation court would have jurisdiction to try one charged with vagrancy under article 634, and it is only in eases in which the court has no jurisdiction, or is exceeding its jurisdiction that the writ of prohibition will lie. Bailey on Habeas Corpus and Prohibition, § 356, lays down the rule:

“The definition of the term ‘jurisdiction’ has been given and the general rules which apply to distinguish it from error have been quite fully discussed in other parts of this work.
“It only remains to call attention here to that distinction upon application for a writ of prohibition.
“It is said the writ issues only to restrain the acts of a court or other inferior tribunal exercising judicial power, which it has no legal authority to exercise at all.
“And also that, where the court or inferior tribunal has jurisdiction of the subject-matter and the defendant is duly served with process or voluntarily appears, the writ will not be granted.”

The Supreme Court of the United States, in Smith v. Whitney, 116 U. S. 167, 6 Sup. Ct. 570, 29 L. Ed. 601, held:

“It is often said that the granting or refusing of a writ of prohibition is discretionary, and therefore not the subject of a writ of error. That may be true, where there is another legal renjedy, by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ of prohibition. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. This is the clear result of the modern English decisions, in which the law concerning writs of prohibition has been more fully discussed and explained than in the older authorities. Re Dorster, 4 B. & S. 187, 199; Mayor, etc., of London v. Cox, L. R. 2 II. L. 239, 280; Worthington v. Jeffries, L. R. 10 C. P. 379, 380; Chambers v. Green, L. R. 20 Eq. 552, 556. See, also, Weston v. City Council of Charleston, 2 Pet. 449 [7 L. Ed. 481].”

It is thus seen that tbe rule is that “the defendant must have objected to the jurisdiction of the court at the outset, and he have no other legal remedy,” else it is not obligatory on an appellate court to grant the writ. If applicant had desired to contend that articles of the Code defining and punishing keepers of bawdyhouses and disorderly houses repealed by implication subdivision “j” of article 634 defining and punishing vagrancy, the proper place for her to have presented such plea was in the corporation court when the complaint was filed, and given that court an opportunity to rule thereon, for that court had jurisdiction to entertain such plea after the complaint was filed; but she did not do so. Again, as she' did not file that plea in the corporation court, and after trial and sentence voluntarily appealed tlie case to the county court, when the case was'called, if she desired to enter that plea, she should have then filed it, and given the county court an opportunity to rule thereon. This she did not do, and for the first time, in this court, in the brief filed, she asks us to prohibit the county court from proceeding further without knowing or seeking to ascertain what the ruling of the county court would be if she had filed that plea in that court. In our opinion, even if we'should be of the opinion that articles of the Code defining and punishing keepers of bawdyhouses and houses of prostitution repealed subdivision “j” of article 634 defining and punishing vagrancy, the application is prematurely brought, for the county court should have been given an opportunity to rule on that question before asking us to prohibit it from proceeding further in the premises. We cannot and will not presume, in advance of the ruling by that court, that it will rule wrongfully when the question is presented to it. At least until the county court has ruled on the question, she has not exhausted her legal remedies, and all the authorities hold, so far as we have been able to ascertain, that a writ of prohibition will not issue until it is made to appear that the applicant has no other legal remedy, or that by seeking the legal remedy she will suffer irreparable injury.

But had this question been presented to the county court, the writer is unwilling to hold at this time that articles 496 and 500 repeal by implication subdivision “j” of article 634. We perhaps have not given it that consideration we would if the question was presented to us direct, not deeming it necessary to a proper disposition of the case. In the writer’s opinion subdivision “j” of article 634, in providing that all keepers of houses of prostitution are vagrants, was punishing a certain class of persons who pursued that as a business or occupation. Under it, it would not be necessary to prove that she was at that time the keeper of a particular house, but only that this was the character or line of business that she pursued to obtain her livelihood or living. It was her calling, trade, of vocation, and it was at this class of people the vagrancy statute was aimed. A similar question was discussed at length in Parshall v. State, 62 Tex. Cr. R. 190-194, 138 S. W. 759.

The bawdyhouse and disorderly house act was directed at the keeper of a particular house, and it is necessary to prove that the defendant was at the specific time named in the indictment the keeper of a particular house, and it was kept at the time alleged for the purposes denounced by the statute— not that this was the vocation, trade, or calling pursued to obtain a livelihood. Such person might be a lawyer, doctor, merchant, banker, or follow any other business or calling as his occupation or business, as a means of obtaining a livelihood, and yet be guilty under the act defining and punishing the keeper of a bawdyhouse or house of prostitution, if he was keeping, or was interested in keeping, a house at the time named for the purposes denounced by the statute. Such person, however, could not be convicted as a vagrant under the vagrancy statute, because that would not be his occupation or vocation in life — he would not be the character of person at whom the vagrancy statute is aimed. These are some of the reasons why the writer is of the opinion that neither article of the Code repeals the other, and, if it does not do so, there can be no question that applicant is not entitled to the writ, for the wording of the complaint makes it clear that she was prosecuted under the vagrancy statute, and not under the 'bawdyhouse or disorderly house statute, and the corporation court has jurisdiction if brought under the vagrancy statute. But, as hereinbefore stated, it is not necessary to decide in this case whether or not either provision of the Code by implication repeals the other, as that question was not presented to the corporation court, nor the county court, and for us to issue the writ prayed for would be improper and premature until the county court had passed on the question under the facts in this case. If the applicant should present this question to the county court, and' that • court overrules the plea, and when tried she is convicted, she can prosecute an appeal to this court, or, if the fine is in such an amount as would not permit an appeal, she can then present the question to this court by suing out a writ of habeas corpus, if she thinks one provision of the Code repeals the other. She would have ample legal remedies, and the application for the writ of prohibition is denied.

DAVIDSON, J.

If the vacation opinion or decision of Presiding Judge Prendergast and Judge Harper in the Pye Case (State ex rel. Booney v. Hamblen) 169 S. W. 678, is correct, the writ of prohibition should have been granted in this case. If their opinion in this case is correct, the Pye opinion is incorrect. I do not deem it of any avail to write further now. If the writ of prohibition is available in a criminal case, it can only be for the purpose of enforcing the jurisdiction of the Court of Criminal Appeals. The writ of prohibition was granted in Pye’s Case at instance of the state to prevent issuance of writ of habeas corpus and a hearing under it.In this cáse the writ was and is denied the accused on the ground she did not urge want of jurisdiction of the county judge before whom the case was pending before she applied to this court for the writ of prohibition.
      ®=»For other cases see saíne topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    MASTERSON et al. v. HARRIS et al.
    (No. 2385.)
    (Supreme Court of Texas.
    March 17, 1915.)
    1. Wills @=>423 — Probate—Judgment.
    A judgment of probate is, as a rule, binding on the whole world; the proceeding being' one in rem.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 911-913; Dec. Dig. @=>423.]
    2. Judgment @=>626 — Gonclusiveness—Na-ture of Estoppel.
    One against whom a judgment operates cannot as a rule be denied the advantage of its operation in his favor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ H'90-1194; Dec. Dig. @=>626.]
    3. Wills @=>423 — Probate—Effect.
    Rev. St. art. 3248, declares that no will shall be admitted to probate after the lapse of four years from the death of testator unless it be shown that the party applying for probate was not in default, and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of testator. Section 3274 declares that upon hearing of an application for the probate of a will, the court, if satisfied that the will should be admitted, shall make an order to that effect entered upon the minutes. On the application of parties not in default a will was admitted to probate more than four years after the testator’s death. Held that, as one against whom a judgment operates cannot, as a rule, be denied the advantage of the operation in his favor, and in view of the statute providing for the general entry of a judgment admitting a will to probate, the parties in default are, where the will is admitted to probate more than four years after the testator’s death, entitled to benefit of the order; it being made on the application of parties not in default.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 911-913; Dec. Dig. @=>423.]
    4.Specific Performance @=>86 — Contract to Devise or Bequeath.
    A valid contract to devise or bequeath property to another is enforceable.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 223, 224; Dec. Dig. @=> 86.]
    5. Trial @=>404 — Findings—Effect.
    A finding that the testator in his proposal of marriage stated that he would adopt as his own the daughter of the woman he was courting, that he did so adopt her, and that it was intended by him that she should be treated as his own child and share in his estate, is not equivalent to a finding that the testator agreed that such adopted daughter should share in his estate.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 957-962; Dee. Dig @=>404.]
    6. Adoption @=>20 — Effect.
    An adoption merely places the adopted child on the same footing as the foster parent’s other children, leaving such parent free to dispose of his property by will as he may desire.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. §§ 29-32; Dec. Dig. @=>20.]
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by Thomas W. Masterson and others against John W. Harris and others for partition. From a judgment for defendants, plaintiffs appeal. On certified questions from the Court of Civil Appeals. Questions answered.
    D. D. McDonald, of Galveston, Masterson & Masterson, of Houston, and Williams & Neethe, of Galveston, for appellants. Edward F. Harris and Harris & Harris, all of Galveston, Wallace H. Newton, of San Antonio, P. A. Drouilhet, of Galveston, B. R. A. Scott, of San Antonio, and S. W. Fisher, W. F. Ramsey, and C. L. Black, all of Austin, for appellees.
   PHILLIPS, J.

The certificate of the honorable Court of Civil Appeals is as follows:

“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 Master-son, 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 dev-isees). 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 1S87, 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 Ms 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 Gora L. Harris (now Davenport), share and share alike. There was aiso 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. Mas-terson, 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. Master-son 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. 8.), 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 O. R. Patton.
“ T. 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 the fact of the discovery of the act of adoption by John W. Harris of Mrs. Annie W. Master-son, 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 the day of the marriage he would adopt as his legal heir Annie W. Dal-lam, 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 oh 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 tbe rights and privileges in law and in equity of a legal heir of said John W. Harris.’
“They also -alleged substantially the facts hereinbefore 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 $3,000 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 repective 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 answer of said John W. Harris, or either of said 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.’
“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 aslyum 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, Tex., 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. B. T. 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. The case was tried without a jury. Conclusions of fact and law were filed. The conclusions of fact, with slight exception, aTre adopted by us. At the risk of repetition of much that has been heretofore stated, we have set out such conclusions:
“ ‘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. Mas-.terson, by marriage with Branch T. Master-son), 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 derk 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, 18S7, 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 instruments had been read and general surprise expressed at their contents, particularly at the attempt to dispose of the entire estate as though it were his separate property when it was notorious that it was community of the marriage, she called Mr. Branch T. Masterson aside in another room and expressed her own surprise that Judge Harris had not made provision for her 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 her one-half interest, and Mr. Harris’ four children the other half in equal parts, as though he had died intestate; and Mr. Masterson, being asked what he thought of this, assented to it, saying in substance, that they could do what they pleased; that if' 'they did not offer the wills for probate he would not; that they need not consider his children (referring to the legacy of $3,000 for their benefit) ; that he was able t 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.
“ ‘The will of Judge Harris was duly probated in Galveston county on the 10th day of February, 1910, pursuant to the decree of the Court of Civil Appeals of the Fourth Supreme Judicial District, in the cause entitled “In the Matter of the Estate of John W. Harris, Deceased; Application for Probate of -Will,” No. 26731 in this court, and to the orders of this court also made pursuant to said decree, and copy is hereto attached and marked Exhibit B. The case is reported in 57 Tex. Civ. App. 640, 122 S. W. 587.
“ ‘The plaintiffs, and those under whom they claim, are the only devisees of Mrs. Annie W. Masterson; and the defendants (other than the executors and administrator), and those under whom they claim, are the only devisees of Judge John AV. Harris; and said plaintiffs and defendants, and those under whom they claim, are the only devisees of Mrs. Annie P. Harris. These estates consist of a large number of tracts of land in different parts of the state and other property, which it is agreed, for the purposes of this case, was all originally community of the marriage of Judge John W. Harris and his wife, Annie P. Harris. The accounts of John AV. Harris, Jr., who has had charge of the property since his father’s death, have been audited and found correct.’ ”

The act of adoption referred to has been heretofore set out in full.

Tinder the foregoing facts, it is 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 AV. T. Ilefley, 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 W. Harris with Mrs. Annie P. Dallam and the subsequent act of adoption of her child, Mrs. Annie W. Masterson, he was estopped and prevented from making any will which by its terms did not make provision for his said adopted child equally with his own children.”

The questions propounded for the determination of this court are as follows:

“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?”
. “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 AV. 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?”

The first question involves alone a determination of the true scope and effect of article 3248, which is as follows:

“No will shall be admitted to probate after the lapse of four years from the death of the testator, unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.”

The question is rendered one of some difficulty, for the reason that the statute is an unsatisfactory one in the expression of its intent. It is clear in its declaration that no will shall be probated after four years from the death of the testator unless the party making the application is shown not to be in default, but it fails to in anywise provide what shall be the effect óf the' probate in such case as to parties affected by the will but proven to be in default. It leaves that question to deduction, rarely an exact process; to be solved in the construction given this provision of the article. Reduced to its simplest terms, the question is: Has the statute the effect of denying to parties shown to have been in default the benefit of a probate of a will duly decreed upon the application of others, because of its prohibition against a probate except at the instance of parties not in default?

There has been no decision of the question in this court, or in any other appellate court of the state. A review of the authorities elsewhere, beyond their affirmation of well-established general principles, and a limited analogy which some of them possibly furnish, affords little'aid in its solution; for the diligent research of able counsel has failed to'discover the existence in any other jurisdiction of a statute in terms like this; and our own investigation for that purpose has been equally futile in its result.

An action to probate a will is generally recognized as a proceeding in rem. The judgment of probate is therefore, as a rule, binding upon all the world until revoked or set aside. Steele v. Rqnn, 50 Tex. 467, 32 Am. Rep. 605; Connolly v. Connolly, 32 Grat. (Va.) 657; Brock’s Adm’r v. Frank, 51 Ala. 85; Black on Judgments, § 635. The reason of the rule is that the issues in the proceeding are simply the competency of the testator to make a will, and whether the instrument propounded for probate is his will. The judgment is not for or against any person, but determines the status of the subject-matter of the proceeding; and, when it duly establishes the instrument as the will, it is conclusive upon everybody. But, of course, the subject of the effect of the probate is, within proper bounds, one of legislative control and regulation, and it is competent for the Legislature to qualify or limit the general effect of such a judgment by appropriate statutory enactment. Was such the purpose of this statute? And, if that was the purpose, does the statute express it in legal effect?

To properly examine and test the correctness of the proposition that such was the purpose and is the effect of the statute, it should be considered as expressed in the strongest terms of which it is capable. Stated, we believe, as strongly as it may be, it is that, unless the result of the absolute denial of any authority to the court to probate a will after four years from the death of a testator upon the application of a party shown to be in default, which the statute embodies, is to deny him the benefit of any probate, it accomplishes nothing. For, it is or may be argued, what could be the purpose of denying the probate upon the application of a party in default, unless the consequence of his default is maintained by refusing him the benefit of any probate? And in this connection the further argument may be made, and is made, that only by refusing a party shown to have been in default the benefit of any probate, however duly obtained, can an easy evasion of the statute be prevented; for otherwise he may procure one not in default to make the application and fully share in the results of the probate thus obtained. It would do no credit to any intelligence to deny that there is much force in this position. It has been urged with marked ability in an exhaustive discussion, in which the whole argument was presented in its full strength. We shall now examine it.

The proposition assumes for its basis that a denial to the court of the power to probate a will upon the application of a certain class of parties, for a reason which the Legislature deemed sufficient, is equivalent to a denial of its authority to probate the will, generally, upon any application. This is true, because it proceeds upon the view that since, under the statute, after four years from the death of the testator, it may not be probated at all, except upon the application of a party shown not to be in default, after that period only a limited probate can be decreed, inuring alone to the benefit of the party making the application or those established by the judgment as not in default. How, under the logic of the proposition, the judgment could operate for the benefit of others not in default, but not so established in the particular proceeding, or some other lawful one, is difficult to be perceived. While it was shown upon this trial that these appellees were in default, the proposition necessarily denies the benefit of a probate to all parties in default, whether so established in the proceeding or not. It therefore would seem to require that the judgment determine the parties for whose benefit it inures in order for it to have certainty of operation, a chief essential of a legal judgment. Suppose, for illustration, that in such a proceeding it was disclosed that, so far as known, there were no parties affected by the will who were in default, and thereupon it was admitted to probate, generally; yet it should subsequently develop that there were parties affected by it, but in clear default, seeking to avail themselves of the benefit of the probate decree. According to this contention the fact of their being unable to obtain a probate of the will because of their default would as fully operate to bar them from any benefit of the probate as though they had been expressly so adjudged in the original proceeding.

The proposition announces, therefore, as its necessary consequence, that because of this statute the court, in admitting a will to probate after four years from the death of the testator, is without the power to render any other decree than one limited in its effect. If this assumption is unsound, the proposition falls, for such is its basis. Only upon the allowance of this premise is there any support for the further contention that a judgment of probate so rendered does not inure to the benefit of parties in default; for if, under the statute, the court has the authority to render a judgment unlimited in its operation, and does so, as was the judgment in this case as expressed in terms, such a judgment would possess full force and effect, establishing the will as to all the world, and available to any one affected by it, until set aside.

The chief difficulty experienced in admitting the conclusion that under this statute a will duly admitted to probate subsists as such in the judicial records of the state only for the benefit of a certain class of parties, and that the probate is of no beneficial effect as to others in default, or adjudged to have been in default, lies in the fact that the statute does not purport to deal with that subject, and distinctly omits to do so. It is plain in its command to the court not to probate a will except under the conditions it prescribes; but there it stops. It nowhere attempts to limit the effect of the judgment, once it is duly rendered, or alter its operation under the general rule which obtains in respect to judgments of probate, by pronouncing the exclusion from its benefits of any one affected by the will.

With the statute containing.no such provision, is a court at liberty, by construction, to supply it? Clearly not, unless the necessary effect of its express provision is to require that construction. That the statute will prove barren of result, or is susceptible of ready evasion, unless it be given such effect, may be a persuasive argument, if that is true, as we have already indicated; but it is not an altogether sound one, nor is it a safe process in the construction of a statute. Its influence is frequently to prompt the substitution by a judicial tribunal of its judgment upon a matter of legislative concern for the will of the lawmaking body, rather than the exercise of its true function of simply determining what that body has enacted. A court has no authority to provide for the omissions of the Legislature, or to do that which it has failed to effectually do. It should assume that the Legislature fully expressed its purpose in the particular statute, and intended to confine its effect within the reasonable compass of the language employed.

The prohibition which the statute expresses is not, in our opinion, equivalent to a limitation upon the effect of the probate when duly decreed; neither is its necessary effect to deny to parties, though in default, any benefit of the judgment. The statute expressly recognizes it to be the duty of the court to probate the will when duly established, upon the application of one not shown to be in default. But in such a case it assumes no office whatever, and attempts to fulfill no function. So far as is expressed in its terms, its sole purpose is to provide when the court shall be without authority to act in the probate of a will; not how it shall act when with authority, nor what shall be the effect of its judgment when it so acts, with the qualification that the statute provides that letters testamentary shall not issue in any case of the probate of a will after four years from the death of the testator. As to how it shall act when it has the authority to act is found in the regulation of other distinct statutes. And as to what shall be the effect of its judgment when it does so act with authority is left, with the exception noted in respect to the issuance of testamentary letters, to the general rule of law governing the effect of a judgment of probate ; for neither this statute, except as stated, nor any other, attempts to control it.

It is not enough to say that, if the statute is not given the effect of denying to a pax-ty shown to be in default the benefit of any probate of the will, the consequence will follow that he is relieved of the disadvantage of his default as soon as the will is admitted to probate upon the application of another. The question rather is: Has the Legislature in this statute provided against that consequence? The answer to the suggestion is that it clearly has not done so; for, in respect to a party shown to be in default, the only provision it contains is that the will shall not be probated upon his application, a denial to him of the right to obtain its probate, but not a refusal to him of the benefit of a probate duly obtained. That the legal effect of simply denying to a party the right to obtain the probate of a will upon his application is not identical with that of refusing him the benefit of a probate which the law recognizes as valid, is manifest. One is to deny the exei-cise at his instance of the jurisdiction of the court; while the other has to do with the power of the court while acting in the lawful exercise of its jurisdiction. To declare, in effect, that in a given case or under a particular condition the court shall have no jurisdiction is not to impose a limitation upon its power to act when invested with jurisdiction, or upon the effect of a judgment rendered in its valid exercise. The discussion of the question might be extended, but it is summed up in what we regard as the conclusion inevitably produced by a full review of the subject, that the Legislature has not seen fit to limit the effect of a due probate of a will; and the utmost to which it has gone in the enactment of this statute is to deny to a party in default the right to obtain it.

Ample evidence is found in support of the view that in the enactment of our various statutory provisions there has been no intention to limit the effect of the probate of a will after four years from the death of the testator, except in respect to the issuance of testamentary letters. For the establishment of a will after the lapse of that period the law abates none of the requirements which it imposes in respect to an ordinary probate. The same procedure must be followed; the same proof is required; and the same record is preserved. The sole difference prescribed by our statutes between the effect of such a probate and an ordinary probate is that in the former testamentary letters are not permitted to issue. The judgment which it is provided shall be entered is the same in one case as in the other, as is shown by article 3274, which is as follows:

“Upon the hearing of an application for the probate of a will, if the court be satisfied from the evidence that such will should be 'admitted to probate, an order to that effect shall be entered upon the minutes; and such will, together with the application for the probate thereof, and all the testimony in the case, shall be recorded in the minutes,” etc.

It may be pertinently asked: If it was the purpose to make exclusive the benefits of a probate of a will after the lapse of four years from the death of the testator, why provide, as in article 3274 it is provided, that a judgment establishing the will, generally, be entered?

Upon another ground it seems to us that such'a probate is necessarily one unlimited in its effect. The estoppels of a judgment are mutual. One against whom a judgment operates cannot, as a rule, be denied the advantage of its operation in his-favor. When a will is probated after the lapse of four years from the death of the testator, upon the application of a party not in default, it is necessarily established as the testator’s will as against everybody, including parties in default, and upon whose application, therefore, the court, under article 3248, would have been without authority to probate it. Unless this is true, the judgment of probate would be without any substantial effect or benefit to the party who seeks it and at whose instance it is decreed. If such a judgment is in its effect operative generally against all parties affected by the will, whether in default or not, upon what principle can its like operation in their favor be denied? Freeman on Judgments, §T59. It should in this connection be understood that, of course, a party may upon the principle of equitable estoppel be denied the right to claim the benefit of the probate of a will-; but that question is not involved here.

We have carefully considered the several authorities which have been cited, but do not feel that it is necessary to here enter upon a discussion of them, or an attempt to either apply or distinguish them. After all is said, the question still remains one purely of the construction of this statute, and that must be determined by the effect to be given its provisions under well-established general rules which need not be reannounced. It must be granted that, unless the statute has the force of qualifying the general rule governing the effect of a judgment admitting a will to probate, such a judgment, once duly rendered, as was the case here, is unlimited in its effect, and may be availed of for its proper purposes by any one affected by the will, or his privies; and it is our opinion after an earnest study of the question that the statute does not possess such force.

.[4-6] The second question is clearly ruled, we think, by Clark v. West, 96 Tex. 437, 73 S. W. 797. Jordan v. Abney, 97 Tex. 296, 78 S. W. 486, is authority to the effect that a valid contract binding one of the parties to leave, at his death, property to another, is enforceable. But such a contract or agreement on the part of Judge Harris is not shown iü the finding of fact upon which the question certified is predicated. All that is shown is a statutory adoption of his wife’s daughter. The finding of the trial judge that in his proposal to Mrs. Dallam before their marriage ‘it was intended by him that her daughter should be treated as his own, and that she should have a child’s interest in his estate,’ is not equivalent to a finding that such was his agreement. That may have been his purpose at the time, as it might be a parent’s intention at any given time with respect to one of his own children; but it cannot be said to amount to a binding agreement to that effect, having the force to impair his right of testamentary disposition of his estate. It is clearly held in dark v. West that, in the absence of a binding agreement on the part of the foster parent to leave property to the adopted child, the only effect of such adoption, in respect to the property of such parent, is to place the adopted child in the same position as that occupied by the parent’s own children, with no vested right in his estate, and leaving the parent free to dispose of it by will.

We accordingly answer the first question certified that the probate of the will in question inured alike to the benefit of the appel-lees. And the second certified question is answered in the negative.
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