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: 361
xxii, 836 p., 22 cm.View a full description of this book.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
'1|S84.] COOPER v. HORNER. 361
Opinion of the court.
the executors to so act in reference to the payment of debts, and the
support and education of the minor children, as to avoid the contingencies
which would put the control of the estate or some portion
of it within the probate jurisdiction of the district court as it
was then organized. If the executors were not empowered under
the will to so execute their trust as to sell real estate to pay debts
and educate and maintain the minor children according to the exigencies
that might require it, it would seem to follow under the law
existing at the date of the will (1875) and in force (probate act of
1870), that the estate would not be administered consistently with
the provisions of the statute providing for the withdrawal of estates
from the jurisdiction of the probate court. Arts. 5626-5628, Pasch.
Dig.
Art. 5628, Pasch. Dig., provides that "when a will contains directions
that no action be had in the district court in the administration
of the estate, except to prove and record the same, or to prove and
record it and return an inventory and appraisement, no other provisions
of this act except .. shall apply to such estate; but the
same shall become like any other property to be administered under
a power, chargeable in the hands of a trustee, and liable to execution
in any court having jurisdiction."
The power to sell property according to the circumstances that
necessitate it, even though it be real estate, must be coincident with
a trust of this nature where it is charged with the payment of debts
a;nd the duty of raising the means necessary to maintain and educate
children. If the will receives the construction that it limited the
power of the executors to the sale only of personal estate for the
payment of debts, the consequence must ensue that the debt may be
nevertheless enforced by judgment against the executor to be satisfied
by execution against any property subject to levy, real as well
as personal. And so, too, in respect to the necessity of raising
money to educate and maintain the minors; resort would have to
be had to the court for a decree for sale of real estate, if necessary,
to be sold at auction by the sheriff. Such results obviously were not
in the contemplation of the testatrix, but, to the reverse, the whole
will shows a wish and an intention to confide to the judgment and
discretion of the executors to carry out, through their control of all
the property, the main objects of the will, viz., to pay her debts,
maintain and educate the minor children, and to preserve the real
estate intact if possible, to be divided and partitioned on the happening
of the contingencies specified in the will, without the aid,
control or jurisdiction in any wise of courts, or incurring to the
Upcoming Pages
Here’s what’s next.
Search Inside
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
Texas. Supreme Court. 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., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/383/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .