It will be unnecessary to notice these assignments specially. The full statement of the pleadings and proceedings in the case which we have given makes manifest the many and fundamental errors committed.
1. It was error to overrule the defendants’ demurrer. The petition did not set out a good cause of action against the defendants, Hawkins and wife, or show plaintiff’s right to sue. It did not allege that Mary Hawkins had ever qualified as his executrix, or whether his estate was in due course of administration in the county court or not, or in what capacity Mary Hawkins took possession of the property of the estate, otherwise than by the enigmatical reference to articles in Paschal’s Digest.
2. It is not alleged that the widow and children, the lawful heirs of W. H. Cobb, had the authority to recover or to transfer this legacy. It is not shown whether there is any administration upon his estate. So as respects the Couch children; whether there was any administration upon the estate of their mother is not alleged. In both cases if the heirs could sue or transfer a right to sue, the circumstances which authorize them to do so should be alleged. It is not shown that the minors have no legal guardian.
3. There is no allegation in the petition of any fact or circumstance which would authorize a judgment against Hawkins and wife individually. They could only be chargeable to the extent of the property of the estate which came to their hands and which had been appropritated wrongfully to their own use.
. The judgment of the court cannot be sustained. The record does not show, as the law required at the time of the institution of this suit and the rendition of the judgment, that a special guardian had been appointed by the court to represent the minors, and that he had taken the oath and given bond as the statute prescribes. If the minors had lawful guardians, they should have been made parties; if not, *173or the guardians were interested adversely to the minors, special guardians should have been appointed, sworn and qualified. And this not appearing to. have been done, the objection is fatal to the judgment. Pas. Dig., 6969, 6973; Pucket v. Johnson, 45 Tex., 550; Ins. Co. v. Ray, 50 Tex., 511; Bond v. Dillard, 50 Tex., 302; Brooke v. Clark, Austin Term, 1880.
2. The allegations of the petition do not warrant a judgment in favor of the minor heirs. There is no averment in the petition nor in their answer showing their right to recover, how they have or acquired any interest in the legacy, or what their interest is. And there is no prayer for judgment or any relief asked for them. Facts which were not alleged, though proved, could not form the basis of a decree in their favor, and having asked for.no relief, it was improper to render any judgment for them. Hall v. Jackson, 3 Tex., 305; Chrisman v. Miller, 15 Tex., 159; Hubby v. Camplin, 22 Tex., 582; Mann v. Falcon, 25 Tex., 276.
3. It was error to render judgment in favor of the plaintiff, Carr Forrest, for the interest of Hellie B. Cobb, and in her favor for the same interest in the legacy.
4. It was error to order payment of the legacy by Hawkins and wife, and to render judgment against them individually, because there were no allegations in the pleadings to warrant it. It was nowhere shown that they had received and misapplied any funds^of the estate, or had become liable in any way in their individual capacity for its payment. If they could be made liable under the pleadings in the case, it could only be in their representative capacity, and the decree should have been against them as such, and execution to run against the property of the estate.
5. Ho basis wTas laid in the petition for the charge or computation of interest. The terms of the legacy are not set out in the petition, nor are we apprised whether it was payable specially at a fixed time, nor when it was demanded or could have been paid. The question as to when, as against the estate of the testator, a legacy should bear interest, is *174not free from difficulty. Interest is the creature of the statute, and unknown to the common law, and our statute does not seem to embrace.legacies. We have no decisions of our courts upon the subject in relation to legacies. • We do not care to state any general rule upon the subject. But in the present case, as we infer from the meager record and the briefs of counsel that Hary Hawkins is the executrix and also residuary legatee under the will of E. H. Tarrant, we incline to the opinion that she would be chargeable with interest from the time when, in the prudent management of the estate, and in view of its debts and condition, and the assets in her hands, and after demand made upon her, she could have paid it without risk. Under the law, before the 'court would compel her to pay the debts and legacies, she •would be allowed a reasonable time to ascertain the condition of the estate, and gather in it's 'assets and ascertain its liabilities. If- the legatees wished to obtain possession of the legacy, the statute suggests a mode wherebjr, on giving bonds for the payment of the debts to the amount of the legacy, or indemnifying the executrix, they could obtain it. Hot having done so, we are of opinion that interest cannot be demanded until it is clearly shown that the executrix was in default in not paying it. Adriance v. Brooks, 13 Tex., 281; Davis v. Thorn, 6 Tex., 486; Roper on Legacies, 1245; Williams on Executors, 1153.
6. If it be conceded that all the facts and parties were before the court to warrant a decree, yet the judgment cannot be correct. The principal of the legacy alleged. to be unpaid is $900. The apportionment made by the court is of $940 principal, and the interest is calculated upon this erroneous basis.
7. Since the institution of this suit and the rendition of the judgment in this case, the Bevised Statutes have been adopted, which furnish rules for procedure in all cases for the recovery of claims against the estates of deceased persons, whether in due course of administration, or where estates are being administered without the intervention of *175the county court. And this renders it unnecessary to discuss the questions further which are presented in this record and the briefs.
[Opinion delivered May 3, 1880.]For the errors indicated we conclude that the judgment should be reversed and the cause remanded, and we so award.
Reversed and remanded.