This was an action brought for the purpose of revising and setting aside certain orders and decrees’of the Probate Court of Bexar county.
The writ of certiorari was resorted to.
The questions now to be disposed of grow out of the following facts: Thomas Newcomb, the father of the appellants, died of cholera at the city of San Antonio in 1849. Previous to his death he had made a contract with J. C. Hall, by which he sold and conveyed his interest in the land in controversy to Hall, The land was known as “ the McKnight title to one-fourth of a league of land in Groliad county, on the San Antonio river,” and in the inventory of Thomas Newcomb’s estate is set down as “No. *56618.” Hall went into possession of the land under his contract with Thomas Newcomb. Whether that contract was in writing or not does not fully appear, nor do we deem it important in the decision of this case.
It appears that one Tally had a location upon .the land prior to Newcomb’s claim, and Newcomb had entered into an arrangement by which Tally was to relieve the land of his location, in consideration of $300, to be paid by Newcomb. •
The records of the probate court show that Eliza New-comb, the widow of Thomas Newcomb, administered upon his estate. She was the second wife of Thomas Newcomb, and was the mother of two children by him. The appellants are the children of his first wife.
C. A. Harper was Mrs. Newcomb’s attorney. The land in controversy was appraised at $50. Mrs. Newcomb had a homestead set apart to her, to-wit, the house and lot marked No. 2 in the inventory, but described as three lots in “La Villita.”
At the August term of the probate court, 1849, Mrs.. Newcomb was allowed $1000 out of the proceeds of the estate of her husband for her support and that of the children for one year.
In November following the probate court made her an additional allowance of $2000 for herself and children. In January, 1850, Mrs. Newcomb again represented to the probate court the condition of the estate, and that a further sale of property was necessary to pay the allowances made to her and the children.
She charged herself with the three lots in “La Villita,” the homestead, taken at the appraisment ($500), and the • McKnight title marked No. 18, with a piano and some moneys collected, making a total of $866.60. She credits herself with moneys paid out $607.78, and claims yet on her allowances $2741.28.
*567She prayed the court to set apart to her the McKnight title and the piano, which was done at the appraisment, and other lands were ordered to be sold to pay her allowances.
On the thirteenth of January, 1850, Mrs. Newcomb reported to the probate court that she had sold the McKnight title for $200 ; that it was the best sale she could • make, and asked the court to approve the sale.
On the first of February, 1850, the court entered up an order approving the sale. No further action seems to have been had in the probate court; and Mrs. Newcomb having ceased to be a citizen, her letters were revoked in February, 1861.
Whether the sale for $200, as reported by Mrs. New-comb and confirmed by the court, was a sham or not, it is impossible to determine with certainty, but there are some very remarkable facts connected with the whole transaction.
Mrs. Newcomb, on the eighteenth of September, 1849, conveyed the land in consideration of $50, as her separate property taken from the inventory. The deed was not acknowledged, however, until the eighteenth of January, 1850. On the same day Harper, Mrs. Newcomb’s attorney, conveyed the land by quit-claim deed to J. C. Hall for $300.
It appears from the statement of facts that Tally received the greater part of the $300 which Newcomb was to give him to release his claim to the McKnight title; that Hall was to pay Newcomb at the rate of $1.25 per acre for the land, partly in money and partly in a slave.
It is singular enough that Harper, the attorney of Mrs. Newcomb, in the main, carries out this contract with Hall. He gets the slave valued at $600; he pays Tally, and what becomes of the rest of the money does not appear.
There being a homestead allowed to Mrs. Newcomb, *568the $2000 allowed her by the probate court was not authorized by law, nor could she, to satisfy this illegal allowance, take property out of the inventory at its appraised value. Whatever acts of hers, in pursuance of her supposed right to this money, are to be counted on as making a title to Hall, must be regarded as null and void. Hall acquired no title by these measures; he has not paid the purchase money to any one legally authorized to receive it. The interest of the heirs of Thomas Newcomb could not be set aside in this manner, nor does Hall stand in a very advantageous light before this court. He had his remedy to enforce the specific performance of his contract with Thomas Newcomb, and this he should have resorted to; nor can he be heard to dispute the title of Thomas Newcomb, as it is evident that his own possession, and right to possession, came through Thomas Newcomb.
J. C. Hall hás died, pending this suit; his heir, Wm. Hall, comes in to defend.
It is contended in the brief of the appellees, that the acts of Eliza Newcomb, as the administratrix, should be affirmed by this court, if for no other reason than that the estate of her deceased husband was largely indebted to her for the allowances made by the probate court. We have seen that one of these allowances she was not by law entitled to. It is also urged that this land was community property, and that her interest should pass to Hall. It is impossible for us to gather from the statement of facts the actual truth in the premises. But Thomas Newcomb had a right to sell this property to Hall, whether community or not; and if he hold it at all, he must hold it under his contract with Thomas Newcomb, and to do so he must pay the purchase money to some person legally authorized to receive it.
We have thought it best not to attempt to reform, and *569render a judgment in this case; but that the facts may be more definitely ascertained, and the case proceeded in under this opinion, the judgment is reversed and the cause remanded.'
Reversed and remanded.