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: 1
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SUPREME COURT OF TEXAS.
AUSTIN TERM, 1884.
ALBERT WEIR ET AL. V. FELIX E. SMITr.
(Case No. 4966.)
1. WILL CONSTRUED.- The husband's will bequeathed to the wife all his estate:
1st. "To be kept together during her natural life," to support the children
and herself and to educate them, and to be divided, such of it as was " on
hand," among the children on their majority or marriage as the wife might
think proper . . 4th. It provided that the property should be managed
as theretofore, and if the wife thought proper to "sell, alien or convey
any portion of the same," then the wife and her co-executor named in the
will, might do so at such times as she might think proper and advisable,
5th. That the wife at her death might make such final disposition of the
property and its increase as she might think proper, and should she fail to
make such disposition, then it was to be equally divided among the children.
(1) That the wife took under the will but a life estate in the property; citing
Philleo v. Holliday, 24 Tex., 41; Orr v. O'Brien, 55 Tex., 154, and other
authorities referred to in the opinion.
(2) When a particular estate is expressly created, with a general power of
disposition to the person to whom such estate is given, then the power will
not enlarge the estate given.
(3) Any property bought by the executors of the will, or by either of
them, with funds belonging to the estate at the time of the testator's death,
or with the increase or profits of such estate, became part of the estate, in
which the wife had no greater interest or estate than she had existing at the
time of her husband's death.
(4) Under the second clause of the will the wife had power to convey to
any one of the children on their majority or marriage, such part of the
estate as she might think proper, so as not to defeat other provisions of the
(5) Under the fifth clause the wife could dispose, at her death, in her discretion,
of such of the estate as was undisposed of; but this power could
only be exercised by her in her will. If she failed to make such disposition
by will, then the wish of the testator must be carried out, and what remained
be equally divided among the children, even if inequitable apparently
in view of unequal advancements which may have been made by the
wife to some of the children.
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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. (texashistory.unt.edu/ark:/67531/metapth28512/m1/23/: accessed October 19, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .