Appellants were of the opinion the court could not grant appellees the relief they sought, unless he had before him *Page 883 as parties to the suit all the persons entitled to share in a distribution of the fund in the hands of the executor, and complain of the action of the court, who was of a contrary opinion, in overruling their exceptions to appellees' petition on the ground that it appeared therefrom that there were other persons than those thereby made parties who were entitled to parts of the fund. As supporting their contention, appellants refer to article 2154, Sayles' Statutes, which requires an application for the partition and distribution of an estate to state "the names and residences of all persons entitled to a share of such estate, and whether such persons are adults or minors, and if these facts be unknown to the applicant, it shall be so stated in the application," and to cases like Ship Channel Co. v. Bruly, 45 Tex. 6, which hold that, in a suit for partition a petition showing other persons than those thereby made parties to be interested in the partition is so defective as to be subject to a general demurrer. But we think neither the statute nor the cases relied upon required the court to sustain the exceptions. The statute was intended to apply to estates being administered in the probate court, and not to estates being administered, as this one was, independent of that court. The reason for the rule which, in ordinary cases, requires all persons who own an interest in property to be made parties to a suit to partition it lies in the fact that the rights of all such parties will be affected by the partition. The reason does not apply here. All the property of the estate, in accordance with the direction in the will, had been converted into money, and, looking to the terms of the will, it was a mere matter of calculation to determine the part of the fund each legatee was entitled to. In awarding to one of the legatees judgment for the part he was entitled to, the rights of the other legatees could not be in any way affected. Therefore we think the court did not err when he overruled the exceptions. McNeill v. Masterson,79 Tex. 670, 15 S.W. 673.
As before stated, the findings of the court that Obe Braden, Mary Kirkland, and Fannie Key died before the testator did, that said Obe Braden and Fannie Key died without issue, and that the three children of Mary Kirkland died without issue before the testator did, are attacked as without support in the testimony.
As to Obe Braden, it was shown that he left his home in Alabama when he was between 17 and 21 years of age, and went away with a circus traveling through the country. Between that time and the time the witnesses testified, a period of 58 years, he had never been seen nor heard of by any of his relatives. Clearly, on the showing made, the court was warranted in finding that Obe Braden died within, or at the expiration of, the 7 years following the date of his going away with the circus. Article 5707, Revised Statutes 1911; Primm v. Stewart, 7 Tex. 178; French v. McGinnis, 69 Tex. 19, 9 S.W. 323. While no witness testified directly to the fact, we think it was a fair inference from the testimony, that Obe Braden was unmarried at the time he left his home. If he was, then Shown v. McMackin, 9 Lea (Tenn.) 601, 42 Am.Rep. 680, is authority in point for saying that the court was authorized to indulge a presumption that he remained unmarried until he died. We think the ruling made in that case was justified; by the principle which requires a presumption to be indulged, in the absence of testimony to the contrary, in favor of the continued existence of a status established as once existing. Summerhill v. Darrow, 94 Tex. 71, 57 S.W. 942; and see Nehring v. MeMurrian,94 Tex. 45, 57 S.W. 943. We conclude that the testimony was sufficient to, support the findings as to Obe Braden.
The witnesses A. L. Braden and J. W. Braden testified that Mary Kirkland was dead. Therefore we overrrule the contention made that the testimony was not sufficient to support the finding of the court in this respect. But the testimony relied upon to show that her son, Jim Kirkland, was dead and that he died without issue was not so satisfactory. Excluding as inadmissible, because hearsay, as claimed by appellants, testimony of witnesses as to the result of inquiries about said Jim Kirkland made in Grimes county, where he once lived, and in McLennan county, where he was last heard of, by persons who did not testify, substantially all that was shown with reference to him was that in 1867 or 1868 he worked with the witness J. W. Braden in making a crop on a farm in Navarro county belonging to said J. W. Braden's mother, and went from there, presumably in 1868 or 1869, to Waco, in McLennan county, where he was shot and afterwards carried to a hospital. So far as the witnesses knew to the contrary, nothing further was thereafterwards heard of him. On the principle that a presumption that a person is dead may be indulged on a showing that, when last heard from, he Was faced with some specific peril (Davie v. Briggs, 97 U.S. 628, 24 L. Ed. 1086), we are inclined to think the court was warranted in finding that Jim Kirkland died in McLennan county in 1868 or 1869 as a result of the wound he suffered there. But, as we understand the record, there was no testimony whatever on which to base a finding that he died without issue. It was not shown whether he had married and had children born to him or not at the time he helped make the crop in Navarro county, nor at the time he was shot in Waco. In the absence of testimony showing what his status in this respect was at the time or before the time the court was warranted in finding he died, we think it cannot be said the court was authorized to presume he died without issue. The burden was on appellees either to prove that *Page 884 he did not leave a child or children surviving him, or to show facts which the court was warranted in treating as a sufficient basis for a presumption that he did not.
The testimony relied upon to prove that Fannie Key was dead and that she died without issue, we think, was entirely insufficient to support the finding of the court. It was shown that she, with her husband, moved from McLennan county, Tex., to Crystal City, Mo., in 1883; that during the two or three years immediately following such removal she corresponded with her brother W. H. Tindal, then in Texas, and thereafterwards was never again heard of by her relatives. She had no children when witnesses last saw her, and they never afterwards heard of her having any. One of the witnesses had advertised, without result, for information regarding her in a paper published in St. Louis, Mo. This was all the testimony offered to show that she was dead and that she died without issue, except testimony showing that one Ferrell, who was not produced as a witness, had written letters to Crystal City inquiring about her, and found no one there who remembered that she had ever lived there. The testimony as to what Ferrell did, and the result thereof, was objected to as incompetent. It clearly was, we think; and we assume it was not considered by the court. The other testimony referred to, we think, wholly failed to prove, either that Fannie Key was dead, or that she died without issue.
It follows from what has been said that we are of the opinion that the judgment, in so far as it was based on findings that Jim Kirkland died without issue, and that Fannie Key was dead, and that she died without issue, is erroneous. Therefore it will be reversed in so far as it is in favor of appellees other than Walter Bone, Artie Bone, Ethel Bone, and Opal Bone, and the cause will be remanded for a new trial as between appellants and appellees, except the Bones, just mentioned. As stated above, the Bones claimed an interest in the fund as descendants of kin folks of the wife of the testator. Therefore the error pointed out in the judgment did not enter into or in any manner affect the recovery had by them, and, as to them, it will be affirmed. The costs incurred by them on this appeal will be taxed against appellants. The other costs of the appeal will be taxed against the other appellees.
On Appellees' Motion for a Rehearing. In the motion attention is called to the fact that the witness J. W. Braden, on his redirect examination, stated that "none of the three Kirkland boys were married." The fact that we overlooked this testimony led to the erroneous statement in the opinion that there was nothing in the record on which to base a finding that Jim Kirkland died without issue, and to the erroneous conclusion reached that the judgment was wrong, in so far as it was based on a finding to that effect. Giving effect to that finding, as we think we should, in view of the testimony overlooked as stated, it appears that the judgment rendered by the court below, so far as it was in favor of the appellees W. H. Margraves, J. F. Hembree, J. W. Braden, and Mrs. E. L. White, was not erroneous, and that, as to them, it should have been affirmed, as it was as to the appellees Walter Bone, Artie Bone, Ethel Bone, and Opal Bone.
In their motion appellees say they do not think it can be shown on another trial any more satisfactorily than it was on the trial had that Fannie Key died without issue, and they ask that, instead of reversing the judgment in so far as it was in favor of appellees J. M. Tindal, Mrs. Myrtle Edwards, Mrs. Clara Dillbeck, Hattie Inez Tindal, William Elmer Tindal, and R. E. Lee, it be so reformed as to adjudge in favor of those parties respectively the sum it appeared they were respectively entitled to recover if said Fannie Key was living, and as so reformed affirmed. We think this should be done.
Therefore the judgment heretofore rendered by us, in so far as it reverses the judgment of the court below in favor of said appellees W. H. Margraves, J. F. Hembree, J. W. Braden, Mrs. E. L. White, J. M. Tindal, Mrs. Myrtle Edwards, Mrs. Clara Dillbeck, Hattie Inez Tindal, William Elmer Tindal and R. E. Lee, will be set aside, and, in lieu thereof, judgment will be rendered affirming the judgment of the court below in so far as it was in favor of said W. H. Margraves, J. F. Hembree, J. W. Braden, Mrs. E. L. White, Walter Bone, Artie Bone, Ethel Bone, and Opal Bone, and so reforming it, so far as it is in favor of the other parties mentioned, as to adjudge a recovery in favor of J. M. Tindal of the sum of $280.91, instead of $456.61; in favor of Mrs. Myrtle Edwards and Mrs. Clara Dillbeck, each respectively, the sum of $56.20, instead of $91.34; and in favor of Hattie Inez Tindal, William Elmer Tindal and R. E. Lee, each respectively, the sum of $140.55, instead of $175.69. As so reformed, the judgment of the court below will be affirmed, but without prejudice to the right of Fannie Key, if living, or, if she is dead, to the right of her heirs or assigns, to maintain a suit against appellants for the part she or they may be entitled to of the fund in the hands of appellant G. W. Wells.
The costs incurred on this appeal by said appellees W. H. Margraves, J. F. Hembree, J. W. Braden, Mrs. E. L. White, Walter Bone, Artie Bone, Ethel Bone, and Opal Bone shall be paid by appellants, The other costs of the appeal shall be paid by J. M. Tindal, Mrs. Myrtle Edwards, Mrs. Clara Dillbeck, Hattie Inez Tindal, William Elmer Tindal, and R. E. Lee. *Page 885