On Motion for Behearing.
In deference to the very earnest appeal of counsel for appellant, we will notice a question not heretofore presented. It is now insisted that the record shows, as it seemingly does, that the property in controversy was accumulated • during the marriage and association of Frank and Maggie De Beque, and that the articles of adoption operate as an estoppel which will preclude May De Beque from claiming that Frank and Maggie De Beque were not husband and wife* or at least that said articles should be construed as a contract between the three parties named, to the effect that upon the death of Maggie De Beque, dying intestate, Frank De Beque would be entitled to a husband’s share of the property left by her. We are not inclined to suppress a feeling of sympathy for Frank De Beque under the circumstances, but we cannot bring ourselves to the conclusion that he may now be given relief on the theory suggested. It is true that the articles of adoption described Frank and Maggie De Beque as husband and wife, but May De Beque at the time was a minor of tender years, and no plea of estoppel in behalf of appellant was presented on the trial below, and it is well settled in the authorities that in order to take advantage of estoppel, by deed as well as in pais, the payty so attempting to rely thereupon must plead it. See Murphy v. Lewis (Tex. Civ. App.) 198 S. W. 1059; Smith v. Roberts (Tex. Civ. App.) 218 S. W. 27; Erickson v. Wiper, 33 N. D. 193, 157 N. W. 592; Gilson v. Nesson, 208 Mass. 368, 94 N. E. 471. Moreover, appellant, instead of relying in any manner upon the articles of adoption, attacked the same and sought in his pleadings and evidence to set it aside entirely. It has been held that a person may not seek to destroy an instrument and at the same time insist that the other party is bound by its terms. See Crosby v. Chase, 17 Me. 369. The suggestion last made would seem also to preclude a finding on our part that the articles of adoption should be construed as a contract entitling appellant to the share of a husband in the property of his deceased wife, as provided by our statutes of descent and distribution. No process of legal reasoning can support the conclusion that appellant may by his pleadings and evidence seek to destroy the effect of the articles of adoption and avoid it altogether and at the same time insist that it shall operate as against another party, beneficially interested therein as a contract. Moreover, it seems evident that the articles of adoption cannot correctly be construed as an agreement binding upon all the parties to it that the property involved shall be distributed as suggested. Nothing in the articles indicates that the purpose of its execution was to provide for the disposition of the property; its evident purpose was to accomplish the legal adoption of the minor child now known as May De Beque. The only reference to property to' be found in the instrument is the concluding statement that:
“The said child (May De Beque) shall share our property as provided by the laws of Texas.”
*760Under the laws of Texas, in the absence of a devise on the part of Maggie De Beque. ■Frank De Beque can be given any right of title to property owned by Maggie De Beque at the time of her death only on the theory 'that he in fact was her husband at the 'date of such death, and such relation has been denied him by the verdict and judgment below.
Appellant again presses upon us the contention that the court below should have granted a new trial on the ground of newly discovered evidence, but we feel we must adhere to our conclusion on this subject, as originally announced, as it seems to us legal diligence was not shown on appellant’s part to ascertain the additional testimony presented in the affidavits attached to his motion. As pointed out, these parties were employees and intimate acquaintances of appellant, and it seems to us that proper diligence would have suggested to appellant at once to make an effort to procure such witnesses, it not appearing that their whereabouts were unknown, or that they were nonaceessible. Moreover, it may be doubted, in the light of the authorities cited in our original opinion, that had their testimony been introduced, it would have been sufficient to overcome the other testimony tending strongly to show that after the divorce of Maggie and Frank De Beque she in many instances and to many persons represented herself to be a feme sole.
We conclude that the motion for rehearing must be overruled.