Anna Teal, Adm'x., v. E. G. Sevier and wife, 26 Tex. 516

Bell, J. We are of opinion that the court below did not err - in sustaining the exception of the plaintiffs to the fourth plea of the defendant. The plea in question did not aver that any marriage ever existed between John B. Sideck and Mary Dill, but only alleged that they cohabited, and that after separation, the said Mary Dill cohabited with several other persons. These facts have no legal significance, and could not in any way affect the rights of the parties to this suit. • It is true that it appears from the evidence that John B.

Sideck and Mary Dill were lawfully married, but the court ruled upon the defendant’s plea, before hearing the evidence, and upon exception to it as a plea. The defendant might, under the general issue, have shown the adulterous conduct of Sideck’s wife, if to have done so would have availed him anything, but no such evidence was introduced. We do not deem it necessary to express any definite opinion as to the effect of the adulterous and dissolute conduct of the wife- of John B. Sideck upon the rights of the plaintiff, Louisa.

We are of the opinion that the instrument which bears date- on the 15th day of December, A. D. 1832, executed by the alcalde and primary judge, Juan Jose Hernandez, is effectual as a gift by-John B. Sideck to Peter Teal of so much of the league of land therein described, as the laws then in force permitted Sideck to dispose of by free gift. It appears to have been the intention of Sideck in the execution of the instrument to make a present gift to Teal of one-half of the property named, and also to adopt Teal as his heir.

But the law then in force did not permit any one who had a legitimate child living, to adopt a stranger as co-heir with such child. Sideck could at that time give away the one-fifth part of his estate, but he could not give away more than the fifth part, nor could he adopt a stranger to be co-heir with his legitimate child, one of the present plaintiffs. • See Escriehe, the word adopción, also the word legitima, the word Herencia, and the word Quinto.

By the instrument of the 15th of December, 1832, Sideck made to Teal a gift of one-half of the property named in the instrument, and intended that the gift should take effect immediately. The instrument must therefore be held to be effectual to the extent of vesting the half of the property in Teal, unless the half so donated exceeded the one-fifth part of Sideck’s whole estate at the time of the execution of the instrument, which it was the duty of the-plaintiff to show; or unless Teal renounced the gift.

The court below left it to the jury to determine whether the land given by the instrument in question to Teal exceeded the one-fifth part of Sideck’s estate, when there was no evidence by which the jury could be guided to a conclusion as to the fact; and, also, refused the 12th instruction asked by the appellant’s counsel, to the effect that if the plaintiffs claimed that the gift to Teal was excessive, the burthen was on them to. show the excess, in both of which particulars the court erred.

There was an objection to the introduction of the act of donation from Sideck to Teal, on the ground that its execution was not sufficiently proven. It was shown that Hernandez, the judge, before whom the instrument was. executed, was dead. His signature was-proven. There is- some proof about the absence of both the subscribing witnesses to the instrument, which is not very intelligible.. If it was shown that they were beyond the limits of the State, or could not be found, after reasonable efforts, and their signatures were proved, we think this would be sufficient.

We are of opinion that Teal was not estopped by his acts as the administrator of Sideck, from claiming under the act of donation. He did nothing upon which the plaintiffs have acted, so that they would be injured if he is now permitted to claim against his acts.. His acts as administrator must be held to be open to explanation-He might have thought himself entitled as heir, by virtue of the adoption, in which case it might still be proper to administer upon the estate of Sideck.

The views entertained by the judge below were in the main correct—but he erred in permitting the jury to find that the donation to Teal exceeded the fifth of Sideck’s estate, when there was-no evidence on the point, and he also erred in refusing to give the 12th in number of the instructions asked by the counsel for the defendant below—for which errors the judgment is reversed, and. the cause remanded. Reversed and remanded. .