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: 9
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1884.] WEIR v. SMITH. 9
Opinion of the court.
expressed in other parts of the will, to vest even the life estate in
the wife charged with named trusts, and with a view to making the
increase and profits to be realized from the estate, except in so far
as it might be necessary to use it for the purpose of carrying out
the purposes for which the life estate was created, a part of the
remainder to be disposed of in accordance with the will.
It also withholds from the wife any power to sell, alien or convey
any portion of the estate, except such as she could convey under the
second clause, but gives this power to her and to her co-executor, to
be exercised by them at such time or times as she may deem advisable;
the terms upon which such conveyance, however, could be
made would have to be fixed by the two executors. This is also inconsistent
with the intention of the testator to give to his wife an
estate in fee.
The fifth clause directs how the estate in existence at the time of
the death of the wife shall be disposed of, and expressly makes the
increase and profits, not used for the purposes named in the will, a
part of the remainder. That provision is utterly at war with any
intention to vest in the wife other than a life estate, charged with
trusts in favor of the children, and, of the remainder, a qualified life
This clause provides, also, how the remainder shall be disposed
of, in case the wife fails to exercise the power conferred upon her
by this and the second clause of the will.
This is also inconsistent with an intention by the testator to create
in the wife any estate greater than an estate for life.
As to the true construction of the will, in respect to the estate
thereby conveyed to the wife, the following authorities may be profitably
consulted: Philleo v. Holliday, 24 Tex., 41; Orr v. O'Brien,
55 Tex., 154; Wimberly v. Bailey, 58 Tex., 225; Burleigh v. Clough,
52 N. I., 267; Dunning v. Vandusen, 47 Ind., 423; Denson v.
Mitchell, 26 Ala., 361; Henderson v. Vaulx, 10 Yerg., 30; Brant v.
Virginia, C. & I. Co., 93 U. S., 327; Funk v. Eggleston, 92 Ill., 515;
2 Washburn on Real Prop., 670.
The general rule is, that if 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.
Under the averments of the petition, the property disposed of by
the will must be considered to have been the separate estate of the
It must be held, also, that any property bought by the executors
of the will, or by either of them, with funds belonging to the estate
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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/m1/31/: accessed September 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .