William Fairy owned a mare, saddle and bridle at the time of his death. He died intestate, leaving as his only heirs his brother, the defendant, and M. J. Fairy, a half-brother. M. J. Fairy, the half-brother, took possession of said property without administration upon the estate of the deceased, and sold the same, one Faulkenhagen becoming the purchaser thereof. This *320property was stolen from Faulkenhagen, and defendant stands convicted of the theft of it, and of an overcoat taken at the same time.

Upon the death of William Fairy, the owner of the mare, saddle and bridle, the title to said property vested in his legal heirs, to wit, the defendant and M. J. Fairy; the defendant taking a three-fourths interest therein, and M. J. Fairy the remaining one-fourth interest. (Bey. Stats., arts. 1645-1648.) The title to this property passed to and vested in the heirs immediately upon the death of the intestate, subject to administration, and such title could not be divested out of them except by their consent, or by due course of law. (Ansley v. Baker, 14 Texas, 607; Rev. Stats., art. 1817.)

It is very clear from the evidence that, at the time the mare, saddle and bridle were taken from the supposed owner, Faulkenhagen, the defendant was a part-owner thereof, because his interest therein had not been divested by the unauthorized sale of the same made by M. J. Fairy, who could not pass title to more than his own interest in the property.

Our statute provides that, “ If the person accused of the theft be part-owner of the property, the taking does not come within the definition of theft, unless the person from whom it is taken be wholly entitled to the possession at the time.” (Penal Code, art. 731.) In this case Faulkenhagen was not wholly entitled to the possession of the property. The defendant had as good, if not a better, right to the possession than he had. The fact that this property was sold by M. J. Fairy to pay the funeral expenses and the expenses of the last sickness of the deceased intestate, does not legalize such sale, or give to it any greater validity than if the sale had been made for any other purpose, and the charge of the court upon this point was erroneous. Conceding, therefore, that the defendant took the mare, saddle and bridle, being a part-owner thereof, the taking did not constitute theft.

But the evidence does not show, with that degree of cogency which would warrant his conviction, that he took any of the property. A person supposed to be the defendant was seen in possession of the mare soon after she was taken from Faulkenhagen, but the evidence fails to identify the defendant as the person. Bo witness testified to seeing defendant in possession of any of the property. The overcoat was found in the possession of one Bennett, at whose house the defendant was staying, but it is not shown that Bennett received it from the defendant.

In our opinion the evidence is insufficient to sustain the conviction, even if the defendant had not been a part-owner of a portion *321of the property charged to have been stolen. He was not a' part-owner of the overcoat, and might legally have been convicted of the theft of that, if the evidence had proved that he stole it, but the evidence wholly fails to connect him with the theft of it.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered June 3, 1885.]