The probate of this will is sought by the plaintiff to establish the will of Mrs. Caroline M. Daggett as an essential muniment of title in behalf of the plaintiff, so as under the will, when established, it may be shown that at the time the plaintiff acquired the land conveyed to it by her husband, E. M. Daggett, she then having previously died, said will had invested him, as devisee under it, with all her right, title and interest to and in the property, and that the plaintiff’s title would not be subject to the claim of her heirs to the community interest which she had owned at the time of her death in said property.
The case of Ochoa v. Miller, 59 Tex., 462, is decisive of this case, where it was held that, notwithstanding the expiration of four years *242from the death of the testator, the will might be probated for the purpose of establishing a link in a chain of title, although no letters testamentary could issue.
In this case, as in that cited, the will had not been in the plaintiff’s possession, nor under his control, but from aught that appears bad been all the while in the place of its appropriate custody, or under the control of the husband of the testatrix. The right to cause the will to be probated to serve the purpose of maintaining the rights of a person deriving title through it, and dependent on establishing its validity as a muniment of title, is distinctly recognized in Ochoa v. Miller.
It is held in March v. Huyter, 50 Tex., 243, that a sale by a devisee of an interest held under a will, and before its probate, passes the estate. And a subsequent probate, by relation, would give vitality to such conveyance, except as against an innocent purchaser from an heir. The court did not err, therefore, in overruling contestants’ demurrers and exceptions to the application to probate the will.
The right of the plaintiff to have the will probated is not affected, we conceive, by the fact that there had been pending an application in the county court by E. M. Daggett to probate this will, and which he had voluntarily dismissed under terms of compromise between himself and the heirs of his deceased wife. The plaintiff was not a party to said proceedings, nor was it to be deemed, as a necessary or proper party to such a proceeding. Even if it were chargeable with knowledge, as the world in a general sense is so chargeable for the purposes of such an application in a court of competent jurisdiction, yet, not being a party thereto, is not affected by the failure of the applicant to probate the will to prosecute the same, and it does not thereby have imposed on it an obligation to either interpose in the matter by intervening or otherwise whereby to cause the will to be probated under that particular application.
Where the executors decline to offer a will for a probate, any one claiming an interest under it may present it for probate; but it should appear that he is not a mere intruder. Enloe v. Sherrill, 6 Ired. (Law), 212; Stone v. Huxford, 8 Blackf., 452. So also a slave to whom his freedom is given by the will may present it for probate. Ford v. Ford, 7 Humph., 92 (see note 3, in vol. 3 Redf. on Wills, p. 11).
There is nothing apparent in the facts of this case to render the diligence ©f the plaintiff essentially indispensable in proceeding promptly, or at an early period, in order to obtain the probate of the will. The instrument was drawn, it seems, in a dual form, so *243as to be available as a deed as well as a will, and the devisee under it, E. M. Daggett, recorded it as a deed, and treated it apparently as sufficient as a deed. Litigation and controversy developed a doubt as to its validity as such, and ten years or more after the death of the testatrix, he made application for its probate as a will, Avhich, as has been stated, was dismissed. A similar lapse of time had occurred in respect to the will in the case of Ochoa v. Miller, supra. It is not perceived that the plaintiff has been placed to any disadvantage, under these circumstances, in following up the application thus dismissed by filing this suit July 4,1882. See Franks v. Chapman, 61 Tex., 583.
The exceptions to the admission of the depositions of Mrs. Ottley need not be particularly considered, as the case was tried before the judge without a jury, and the evidence was ample to prove the execution of the will without the testimony of Mrs. Ottley. We are of opinion that the judgment be affirmed.
Affirmed.
[Opinion approved May 29, 1885.]