On Appellees’ Motion for Rehearing.
Appellees attack our finding that their brief affords no aid or criterion by which the amount of their claim against the estate could with any degree of certainty be fixed; asserting that House, the only witness on the subject, testified that the lands devised to himself and wife were worth $35 or $-40 per acre. Accepting this statement, the amount of the claim is still left as an issuable fact.
The motion strenuously insists: First, that appellees’ equity is superior to that of the Houses, and the latter should not be permitted to retain any portion of the 312 acres until their claim is satisfied; and, second, the same with reference to the university as residuary legatee.
As we endeavored to point out in our original opinion, the trust asserted, proved, and found by the jury established a title in appel-lees to a one-fifteenth undivided interest in the land conveyed in the 1884 deed, and they had the option either of recovering this interest from those to whom the land had been conveyed or devised, or making claim against the .estate for its value. In so far as the Houses are concerned, appellees elected to recover the specific property, and, of course, are confined to the specific interest they have therein, namely, one-fifteenth. They could not charge the Houses’ property generally with a claim against the estate as for conversion of their interest in other portions of the trust estate merely because the property devised to the Houses was a part of the trust estate.
In so far as the university is concerned, its property being no part of the trust estate, it could be held only as residuary legatee upon a claim established against the estate for some specific amount. As we stated in our original opinion, we doubt whether this theory was presented by the pleadings. We are clear in the view that this was not the theory upon which the case was tried in the lower court. “It is an established principle of appellate procedure that the parties are restricted to the theory on which the case was tried in the lower court.” 3 Texas Jurisprudence, § 111. No issue was submitted to the jury; no findings were requested by the court; and no judgment prayed for based upon the theory that appellees were seeking to establish a claim against the estate or against the residuary legatee. The judgment prepared and asked for in the trial court was that the Houses’ 312 acres and the university’s 361 acres be decreed to them because they aggre*421gated less in value than $10,000, or one-tenth of Mrs. Wilson’s entire landed estate ht the time of her death. Upon what theory appellees seek a one-tenth interest in Mrs. Wilson’s entire landed estate we are unable to conceive. The trust pleaded, proved, and found by the jury was limited to the lands embraced in the 1884 deed. Appellees have recovered their interest in a large portion of' those lands that were conveyed to Mrs. Wilson’s sisters before her death, and there is no assertion of any claim for any other lands of the trust estate alienated by Mrs. Wilson except by her will. At the time of Mrs. Wilson’s death the jury found that the trust estate still held by her is worth $167,357; appellees’ one-fifteenth interest therein amounted to $11,151.67. In order to determine their claim against the estate, they having elected to recover from the Houses, the amount of that recovery must be deducted from their total interest, and in order to be deducted it must be definitely fixed. This cannot be done for two reasons: First, because the evidence does not definitely fix the value of the entire House property; and, second, because it is still an open question whether the House 81 acres in the Monroe is a part of the trust estate. Nor was the trial court requested to make a finding or enter judgment based upon the theory-of a claim against the estate. The sole theory upon which a judgment was requested in the trial court was that of a general equitable interest in the trust property to the extent of $40,000, and the right to a decree vesting in .appellees the House and university lands, because they did not equal in value $40,000. Manifestly, appellees were not entitled to such judgment, or to any judgment vesting in them the entire title either to the House lands or to the university lands; and since no other decree was sought and the assignments of error are predicated upon the refusal to enter such decree, we think clearly, as stated in our original opinion, that the trial court was fully justified in entering the judgment he did enter; that appellees are not in a position to complain of that judgment; and that they cannot rightfully seek relief in this court upon an entirely different theory of recovery.
The motion is overruled.
Overruled.