A. R. Moore et al. v. James C. Moore, Executor, et al., 23 Tex. 637

Wheeler, C. J. It is not questioned that, by the Act of 1840, a person under the age of twenty-one, is incapable of making a will. (Hart. Dig., Art. 3252.) If, therefore, the testator was a minor, as alleged, the will was void for the want of capacity to make it.

But the court held that, though the will might be void for this cause, yet the plaintiffs were estopped from averring the minority of the testator, and the consequent nullity of the will, by reason of their having assented to his receiving his distributive portion of his father’s estate, and because they had dealt with and treated him as a person of full age, and capable of acting mi juris. In this we think the court erred.

We see nothing in the acts of the plaintiffs to create an estoppel upon them to aver the truth as respects the age of the testator, and are of opinion that the doctrine of estoppel has no application to the case. This opinion will require that the judgment be reversed and the cause remanded for further proceedings. Reversed and remanded.