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: 2
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2 WEIR v. SMITH. [Austin Term,
Statement of the case.
2. WILL CONSTRUED.- Under such a will, land purchased with the funds of the
estate, by the one named as co-executor with the wife, who took the deed
in his own name, and afterwards conveyed to children of the deceased, became
part of the estate, and the title thereto could not be divested out of the
estate and vested in particular heirs by such deed of the co-executor, the
wife not joining therein.
8. WILL-- DEED.- Title to land thus purchased with such estate funds, no matter
to whom the deed was made, would pass by a deed from the wife to
either of the heirs on their arriving at their majority or marrying.
4. WILL CONSTRUED.- The wife at her death left a will in which she made no
reference to the power to her, contained in her husband's will, but devised
thereby a part of the property which she had controlled and administered
during her life, under her husband's will, as a part of his estate. By her
will she sought to vest absolute title to a portion of the property in some
heirs and a life estate to one, remainder over to her grand-children. Held:
(1) That her will was a valid execution of the power conferred on her by
the will of her deceased husband.
(2) All the property of the deceased husband existing at the time of his
death and undisposed of by the wife during her life, or by her will, remained
for equal distribution among the heirs of the deceased husband.
APPEAL from Travis. Tried below before the Hon. A. S. Walker.
Albert Weir and Louisa Burleson, joined by her husband David C.
Burleson, brought suit against Peter Weir, Eliza McLaren Weir, Monterey
V. Weir, Felix E. Smith and Fred Carleton, as executors of the
last will of Martha J. Weir, deceased, and Joseph, Sarah J.,Martha
J., Stephen M., Louisa and Elizabeth S. Burleson, and Cornelia A.
Cole, wife of J. D. Cole (who was also joined as defendant), for the
purpose of declaring null and void the last will and testament of
Martha J. Weir, deceased, as a muniment of title to the certain lands
described in the petition, and for a partition and distribution of the
same among the plaintiffs and defendants as the children and heirs
of Adolphus G. Weir, deceased. The wills of both Adolphus G.
Weir and Martha J. Weir, his surviving widow, were set out in the
petition, and a construction of the same and of the powers conferred
thereby were the principal issues in the suit.
Benjamin Weir was the co-executor with his mother named in the
will. In addition to what is stated in the opinion, the following
allegations of the petition regarding certain property bought with
estate funds, and in regard to Mrs. Weir's will, it is deemed proper
to insert, though lengthy.
The petition proceeded to allege:
"That said executors on March 27, 1870, for the consideration of
$925, paid by them out of funds belonging to said estate, and held
by them in their said fiduciary capacity, purchased lot No. 11, in
block No. 27, in the city of Austin, and instead of taking the title
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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/m1/24/: accessed August 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .