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: 6
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6 WEIR v. SMITH. [Austin Term,
Statement of the case.
property by virtue of said will of Martha J.; that the plaintiff
Louisa Burleson expressly renounces and disclaims all right and
interest under said will.
"That said Martha J. had no power to dispose of the property
mentioned in said will by last will and testament; that said Martha
J. was not the owner in fee of said real estate, nor the absolute
owner of said personal property; that she had only an estate for
life therein; that all the property attempted to be disposed of by
said will belonged to the children of Adolphus G. Weir, aforesaid,
subject to the life estate of said Martha J.; that said Martha J. did
not own any real or personal property which she could dispose of
by will, either at the date of said will or at the date of her death;
that all of her power and authority to dispose of said property was
derived from the will of Adolphus G. Weir; that said will of
Adolphus G. did not empower her to dispose of said estate by will,
and especially by will made more than seven years before her death;
that said Martha J. had no power to disinherit the plaintiff Albert
Weir of his said one-fifth interest in said estate; that said Martha J.
had no power to limit the estate of the plaintiff Louisa Burleson to
a life estate, with remainder over to her children; that said Martha J.
has not executed the powers conferred on her by said will in the
manner intended by said Adolphus G.; that said Martha J., in making
disposition of said property, did not pretend to act under the
powers in the will of said Adolphus G. as executrix or trustee, or
otherwise; that said will of Martha J. only purports to convey, and
did in fact only convey, her own title; that she had no title for said
will to operate upon; that such disposition by her is in disregard of
the plain interpretation of the will of said Adolphus G.; that she
attempts to dispose of said estate as her own property; that she
makes no reference to the will of said Adolphus G., under which
alone she could act; that she makes special mention of only a
part of the property belonging to said estate; that she had power
only to make a fair and equitable division of said property.
"That the estate of Adolphus G. Weir at the date of the death
of said Martha J. -was reasonably worth $35,000, all of which she
attempted to dispose of in her own name and in her own right;
that said Eliza M. and Monterey V. will receive property to the
value of $13,500; the said Peter Weir property of the value of
$4,000, and the plaintiff Louisa Burleson a life estate in property of
the value of $4,000, and said Albert Weir shall receive nothing, all
of which is in plain violation of the terms, spirit, intent and effect
of the will of said Adolphus G.
"And plaintiffs pray that the will of said Martha J. be declared
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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/m1/28/: accessed July 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .