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: 835
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INDEX.
WILLS - continued. ::
the person and property of the legatee, who was a minor, " that is accorded
or permitted by law." One of the parties named as executor died during
the life of the testatrix. Held: '~
(1) The provisions of the act of 21 Henry VII., ch. 4, which authorized a
qualified and acting executor to execute a will when. other executors named
therein refused to act; were practically adopted by arts. 1268 and,41335;
hence, the general rule which required joint trustees to act together in'the
execution of a power, has no application to executors appointed by will.
Citing Johnson v. Bowden, 43 Tex., 670, and Blanton v. Mayes, 58 Tex. 422.
(2) The doctrine above announced has its application also to executors who
are charged with the execution of the will independent of the control of
the probate court.
(3) The application of the rule is not affected by thle fact that the testator
designated the executors named as "joint executors," or that one of the
executors died before the testatrix; one being dead, the survivor could, execute
the trust alone.
(4) The power to sell real estate, when necessary to pay debts or execute
executory contracts of the testatrix, could be exercised in this case by the
executor under the general powers conferred by the will. Beyond this no
power to convey real estate existed.
(5) The power to sell under such a will would not authorize an executor
to convey the land of the estate to a joint stock company and receive shares
of stock issued to himself in consideration for his deed to the land. ,
(6) When such a deed was executed the instrument creating the joint
stock company vested the title acquired under the deed in trustees,.and it
was not necessary, in a suit by the legatee against the executor arid the
trustees to recover the land, to make the stockholders of the company parties.
Anderson v. Stockcdale, 54.
6. Article 1948 of the Revised Statutes was manifestly intended to- enable
the executor acting under a will, which might withdraw the estate front the
jurisdiction of the county court, to have the county court determine who
were entitled to the entire estate, where the will failed to do so, or in- what
proportions beneficiaries were entitled to take under it, in order that the estate
might be turned over to them after the executor had discharged his: trust.
When such a will does provide for the distribution of the entire estate, and
also a means for its partition, the county court has no jurisdiction to pass
upon the propriety of its administration by the executor, to allow lhim extra
compensation for his services, or to discharge him from further liability.
Lumpl7Jin v. Smith, 249. :
7. A will, executed in 1875, bequeathed to executors named therein, all
the personal estate, in trust for the payment of the debts of the testator,, and
provided that no bond should be required of them. It gave to ;amed
legatees all the residue of the estate, real, personal and mixed; required the
filing of an inventory of the estate by the executors; and provided that
neither the probate nor any other court should have any jurisdiction over
the estate, except to probate and register the will. The will, after providing
for the education and support of the minor heirs out of the personal
property, gave to the executors power, in terms, "to take possession of all
of said estate and manage and control and dispose of the same for the interest
and benefit of the legatees under this will, and the payment of debts
as hereinbefore specified." HEeld:(1)
The existence of debts authorized a sale of the real estate to pay them,
the personal property being insufficient for that purpose, and the purchaser
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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/m1/857/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .