On Appellants’ Motion for Rehearing.
In their motion for rehearing, appellants say this court erred in overruling Point 1 in their brief because Florence Grant, after she had sold the community ■homestead for the purpose of paying community debts, had the right to refuse to pay any community debt she did not wish to pay and that she elected not to pay the *585debts owing to appellees. We do not think the evidence in this case shows that Mrs. ■Grant did not wish the debts due to ap-pellees to be paid, or that she elected not to pay the same. On the contrary, it appears to us from the evidence and the findings of the jury that it was her intention to pay such debts out of the funds to be derived from the sale of the community homestead. In her will, she stated that she wanted “all debts” settled before the estate was divided, and the only debts shown by this record were community" debts. The evidence also shows that George Grant, as the agent of Florence Grant and of the other appellants herein, represented to Mattie Marshall as an inducement' for her to join in the execution of the deed conveying the Grant homestead to F. E. Gardner, that the purpose of the deed was to secure funds with 'which to pay off all community debts of A. J. Grant and Florence Grant. Although this deed was dated October IS, 1952 and recited a cash consideration of $11,849.35, the undisputed evidence shows that the deed was not delivered to F. E. Gardner until a short time prior to the death of Florence Grant, and that the greater part of the cash consideration for the deed was not actually paid until after the death- of Florence Grant. While the debts due and owing td appellees were “hotly contested, disputed and repudiated” by appellants, to-use the language in their motion for rehearing, we cannot say that Florence Grant disputed or repudiated such debts or that she elected not to pay the same during her lifetime. Furthermore, by reason of the representations made to Mattie Marshall as an inducement for her to join in the execution of the deed of conveyance to F. E. Gardner, it is our opinion that neither Florence Grant nor any of the appellants was in any position to repudiate the debts owing to appellees at any time after the deed had been delivered to Gardner.
Appellants also say in their motion for rehearing that this court erred in overruling Point 2 in their brief because the pleadings and evidence were' insufficient to show art adoption by estoppel in that there was no allegation or proof of an agreement on the part of A. J. Grant and Florence Grant to adopt Mattie Marshall. We cannot agree with this contention. All of the evidentiary facts set forth in our original opinion pertinent to appellants’ second point were pleaded by appellees and we think the facte thus pleaded and -proved were sufficient to establish all of the essential fact elements necessary to establish an equitable adoption by estoppel, including the element of an agreement on the part of A, J. Grant and Florence Grant to adopt. If the deedj of adoption which they executed on Octo-,-her 26, 1944. was not sufficient to establish, a legal adoption, such,deed .was undoubtedly; sufficient to show the existence of an iinfen-,, tion and a good faith agreement on their part to adopt Mattie Marshall. '
From what has been said,' it follows'that appellants’ motion fqr rehearing must 'be' overruled, and it is accordingly só bfdéfe'd.'