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: 10
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10 WEIR v. SMITH. [Austin Term,
Opinion of the court.
at the time of the death of the testator, or with the increase or
profits of such estate, became a part of the estate of the testator,
in which the wife had no other or greater interest or estate than had
she in the estate existing at the time of her husband's death.
The next question which arises is: What power did the wife take
under the will of her husband?
Under the second clause of the will, she evidently had power to
convey to any one or more of the children, becoming of age or marrying,
such portion of the estate on hand, at such time as, in her discretion,
might seem proper; the wife's discretion, however, in this
respect, could not have been so exercised as to defeat some of the
main purposes for which the estate for life was given to her. The
mode of the exercise of the power conferred by this clause would
evidently be such as under the law would be appropriate to the
conveyance of such property as might be so conveyed, if made by
one not acting under a power, except in so far as it might be necessary
by the conveyance to evidence the fact that it was intended
thereby to execute the power.
The fifth clause of the will gave to the wife the power, at the
time of her death, to make a final disposition of such parts of the
original estate, and of the increase and profits arising therefrom, as
might ther-be undisposed of, as she, in her discretion, might think
proper and right.
This gave to the wife a very broad power, a power subject alone
to her own discretion, through which she might pretermit some of
This power, as it could only be exercised "at the time of her
death," it would seem, in the nature of things, could only be executed
by her will.
If the wife failed to execute this power, or executed it only as to
a part of the estate, then the will provided, in case of an entire failure
to execute the power, that all property belonging to the estate
of every character, undisposed of, should be equally divided between
all of the testator's children "then living, or their descendants,
share and share alike between my said children, and the descendants,
that portion which their ancestor would have been entitled to."
The fifth clause, it will be observed, provides for the same proportionate
distribution in case of a partial failure of the wife to dispose
of the estate as in case of an entire failure.
If there was an entire failure to dispose of the estate, each of the
five children would receive one-fifth of the estate under the will; if
there was a partial disposition of the estate by the wife, under the
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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/m1/32/: accessed August 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .