The will of William Stone, as deemed material to this appeal is in substance as follows:
1. It appoints Josefa Stone executrix; and expressly declares that she shall give no bond during widowhood.
2. Directs that neither real estate nor sheep shall be sold until tlhe youngest child becomes of age, unless impracticable to keep *258all the sheep and then the proceeds of sale to be reinvested and kept for benefit of estate.
3. Until oldest child becomes of age, executrix was to keep net income and manage and control it for benefit of estate.
4. As each child becomes of age he or she was to receive one-sixth of the net income of the estate, and continue to receive his portion each year thereafter.
5. After the youngest child becomes of age the estate might be partitioned.
6. In case of the death of the widow, it is provided that the oldest son, if competent, and if not the next oldest, if competent, and if he should not be the next, or if none should be found competent, then a stranger was to be selected to take charge of the estate and keep it together and manage and control it under the provisions of the will until the youngest child attained his majority.
To the petition defendants answered by demurrers as follows:
1. It appears that administration of William Stone’s estate is pending in the county court of Maverick county and that plaintiffs are seeking to compel the executrix to render an ac-' count and make settlement of said estate.
2. That said petition is insufficient in law.
3. That plaintiffs are estopped on account of the recitals in their deed to Josefa Stone.
Said exceptions were sustained and the cause dismissed.
Let us first consider whether there was a good cause of action stated in plaintiffs’ petition, without reference to the question of jurisdiction:
If the executrix could purchase the interest of Lucretia Hickman, in Stone’s estate, and acquire a valid title, it must have been on a full, fair and adequate consideration, and there must have been no concealment or withholding of information, or any false or fraudulent representation in reference to the value' of the property. If there was, all of the authorities are agreed that the sale would be voidable, if not void.
Erskine v. De la Baum, 3 Texas, 406; Connolly v. Hammond, 51 Texas, 635.
It is said in Story’s Equity Jurisprudence, vol. 1, middle page 314: “To use the expressive language of an eminent judge, a trustee may purchase of his cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a zealous and scrupulous examination of all the circumstances; and it *259is clear that the cestui que trust intended the trustee should buy; -and there is no fraud, no concealment and no advantage taken by the trustee of information acquired by him as trustee. But it is difficult to make out such a case, when the exception is taken, especially when there is any inadequacy of price or inequality in the bargain.” We conclude that under the allegations of the petition there were facts stated, which if proven true, would have authorized the cancelation of the deed executed by the plaintiffs to Mrs. Stone, and as a consequence • the general demurrer to the petition should have been overruled.
Did the county court have jurisdiction of the subject matter? The amount in controversy was alleged to be not less than twenty-ilve thousand dollars. It was the object of the suit to avoid a conveyance of real and personal property alleged to have been obtained by fraud. The conveyance was to Josefa Stone, individually, though it was charged that it was bought -with funds belonging to Stone’s estate. The will under which Mrs. Stone was acting, in express terms declares that she shall not during her widowhood be required to give bond; it is difficult to perceive how the county court could exercise probate jurisdiction over said estate while she was executrix, but be that as it may, clearly the probate court had no power to set aside said conveyance. The plaintiff’s claim was his title to the claim of Mrs. Stone, and also to that of the estate, and the probate court can not under any circumstances determine the rights of strangers to property though such property may be in course of administration in such court, even though it had the power to set aside a ¿onveyance obtained by fraud. (Bradley v. Love, 60 Texas, 476; Becton v. Alexander, 27 Texas, 659; Newsom v. Chrisman, 9 Texas, 113.)
It is conceded by appellees that if the district court had juris•diction to set aside the conveyance, that it had jurisdiction of the case for all purposes, and we know of no reason to doubt the correctness of the proposition; and even if it had not, for any purpose except the cancelation of the deed, the demurrer to the jurisdiction of the court should have been overruled. (Banton v. Wilson, 4 Texas, 404.)
Was Mrs. Hickman estopped by her recitals in the deed to Josefa Stone? If there was no fraud or concealment, and if the property was not acquired for an inadequate price, by means of the trust and confidence existing, the deed being in due form -and properly acknowledged, the title passed by the deed; and *260there is no need to invoke the law of estoppel. But if the deed was procured by fraud, as alleged in plaintiff’s petition, the fact that the conveyance recites that Mrs. Hickman was fully informed of the value of the property — that there was no concealment, and that she had employed able counsel, etc., would not estop her. The recitals, in the nature of things, could not have-influenced the action of Mrs. Stone. And the fact of such unusual recitals being in the deed was calculated to excite suspicion, that some one, whether able counsel or other person, was-in doubt as to the propriety or validity of the transaction. A married woman can not be estopped by such recitals in her deed in a suit by her vendee. (Herman’s Law of Estoppel, 251.)
It is apparent from the stipulations of the will that it was the intention of William Stone that the corpus of the property should remain together until the youngest child should become -of age; that each child upon becoming of age should receive a share of the net income of the property, and should so continue-to receive a share each year until the youngest child should attain his majority. Josefa Stone had assumed the obligations of' the will, but instead of carrying its provisions into effect she is alleged to have diverted from said estate a portion of the net accumulations and to have purchased the interest of the oldest child while she was yet a minor. Whatever her motives may have been in making the purchases the will should have been the law to her. The offer in this case is substantially to pay back to the estate whatever amount Mrs. Hickman has received,, with interest, less whatever may be found to be coming to her, if anything, out of the net income of the estate. To deny this would be to allow the executrix, of her own volition, without the sanction of any court, to set aside the plain provisions of the will which she had been selected to carry into effect.
In view of all the foregoing we conclude that this case ought, to be reversed and remanded.
Reversed and remanded.
Opinion delivered November 4, 1887.