Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 11

1884.] WmEI V. SMITH. 11
Opinion of the court.
powers conferred on her by the second and fifth clauses of the wil',
then each of the five children would be entitled to only one-fifth of
the estate undisposed of, and this, even though under the partial
disposition made by the wife some of the children may have received
property and others none.
This seems to us inequitable, and but for the language of the will,
those who have received in the partial disposition of the property
ought to be compelled to account for that received by them, so that
all could be made equal through the final distribution. This, however,
was a matter for the determination of the testator, whose will,
when clearly evidenced, must control in the disposition of that estate
which the law permits him to dispose of by his will.
The power given to the two executors, by the fourth clause of
the will, it is now unnecessary particularly to consider.
The next inquiry is: How far did Mrs. Weir execute through her
will, or through conveyances which she may have made under the
second clause of her husband's will, the powers conferred on her by
that will?
If the executors purchased lot No. 11, block 27, in the city of
Austin, with funds belonging to the estate of Adolphus Weir, as
part of the estate at the time of his death, or the increase or profits
of it afterwards, then the lot became a part of the estate, it matters
not in whose name the title was taken; and the title of the estate
thereto could not be divested, and title vested in Eliza M. Weir
and Monterey V. Weir, unless the same was done by a deed made
to them by Martha J. Weir evidencing her will and discretion so to
convey to them upon their arriving at age or marrying, in accordance
with and in execution of the power conferred on her by the
second clause of her husband's will.
The petition alleges that the lot was bought with the funds of
Adolphus Weir's estate, and that the title thereto was taken in the
name of Benjamin Weir, who subsequently conveyed it to Eliza M.
and Monterey V. Weir, two of the children, without being joined
by his mother. No power whatever, nor discretion, was confided
to Benjamin Weir by his father's will under the second and
fifth clauses. These clauses gave to Martha J. Weir powers which
none other than she could execute, and an attempt to execute sirnilar
power by Benjamin, although a co-executor with his mother,
would be ineffective.
Under the fourth clause of the will of Adolphus Weir, Benjamin,
joined by his mother, was given power to sell, alien and convey property
belonging to the estate, but whether property should be so dis