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: 7
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1884.] WEIR v. SMITH. 7
Opinion of the court.
void, and that the estate of said Adolphus G. be partitioned among
his heirs, and for judgment against defendants in favor of plaintiffs
for one-fifth interest each in said estate."
The defendants filed a general demurrer. The court sustained the
demurrer and dismissed the petition.
Sheees c& Sneed, Walton & Hill and Robertson & Williams,, for
appellants, cited, on the proposition that the petition stated a cause
of action good on general demurrer: Philleo v. IHolliday, 24 Tex.,
41; Bell'County v. Alexander, 22 Tex., 357; Tendick v. Evetts, 38
Tex., 278; Paul v. Ball, 31 Tex., 12; Brooks v. Evetts, 33 Tex., 741;
Dial v. Dial, 21 Tex., 532; Danish v. Disbrox, 51 Tex., 239; McDonough
v. Cross, 40 Tex., 277; Clifft v. Wade, 51 Tex., 21; Orr v.
O'Brien, 55 Tex., 154; Howze v. Howze, 19 Tex., 554; Wimberly
v. Bailey, 58 Tex., 225; Blanton v. Mayes, 58 Tex., 428; Newman v.
Dodson, 1 Tyx. L. Rep., 397; Speairs v. Ligon, 1 Tex. L. Rep., 960;
Burleigh v. Clough, 52 N. H., 267; Dunning v. Van Dusen, 47 Ind.,
423; Eaton v. Straw, 18 N. H., 331; Burwell's Ex'rs v. Anderson,
Adm'r, 3 Leigh (Va.), 348; Denson v. Mitchell, 26 Ala., 360; French
v. Hatch, 28 N. H., 350; Jackson v. Robbins, 16 Johns., 558; Smith
v. Bell, 6 Pet., 68; Blagge v. Miles, 1 Story, 426; Henderson v.
Vaulx, 10 Yerg., 30; Jones v. Wood, 16 Pa. St., 25; Funk v. Eggleston
(Sup. Ct. Ill.), 8 Cent. L. J., 169; Brant v. Va. C. & I. Co., 93
U. S., 326; 1 Jarman on Wills, 628 and notes; 2 Jarman on WilIs,
171; 4 Kent's Cor., 319, 334, 335, 520, 521; 1 Sugden on Powers,
334; 2 Washb. R. P., 371.
That Mrs. Weir had no power, under her husband's will, to create
by will a life estate, with remainder over, they cited: Dunning v.
Van Dusen, 47 Ind., 423; Burleigh v. Clough, 52 N. H., 267; Bingham's
Appeal, 64 Penn. St., 349.
Hancock & Shelley, for appellees, contended that Adolphus Weir's
will conferred on the wife the absolute power of disposition, without
limitation, citing: Gifford v. Choate, 100 Mass., 346; Ide v. Ide, 5
id., 500; Speairs v. Ligon, 59 Tex., 233; Williams v. Worthington,
33 Am. Rep., 288; Dunning v. Van Dusen, 47 Ind., 427; McKenzie's
Appeal, 41 Conn., 607.
STAYTON, ASSOCIATE JUSTICE.-The rights of the parties plaintiff
and defendant depend on the true construction to be placed on the
will of Adolphus G. Weir, and upon the will of his wife, Martha J.
Weir, subsequently executed.
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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/m1/29/: accessed July 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .