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: 12
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12 WEIR v. SMITH. [Austin Term,
Opinion of the court.
posed of, even under this clause, was left solely to the discretion of
the mother. This clause, however, can have no reference to the
distribution of property among the children, for that is provided
for by the second and fifth clauses.
The conveyance of the lot by Benjamin was not in the exercise
of power given by any clause of his father's will, if the averments
of the petition are true; hence, such conveyance passed no title.
The facts stated in the petition, in reference to the north half of
lot No. 12, block 27, in the city of Austin, would show a valid execution
of the power conferred on Martha J. Weir by the second
clause of her husband's will, if the conveyance was made to Eliza
M. Weir upon her arriving of age or marrying.
It is evident from the statements of the petition that the facts in
relation to the south half of lot 12, block 27, are not accurately
known, but sufficient has been said in reference to lot 11 and north
half of lot 12, in block 27, to indicate the law applicable to the
facts likely to arise in regard to the south half.
We will say, however, that if the half lot, was bought with the
funds of the estate, then it became the property of the estate, in
the names of whomsoever the title may have been taken, and
that it is still a part of the estate of Adolphus Weir, unless it has
been conveyed by Martha J. Weir in execution of the pow er conferred
on her by the second clause in her husband's will, or by herself
and Benjamin under the power conferred on them by the fourth
clause of the will.
The next inquiry which arises is: How far, if at all, did Martha
J. Weir execute by the will which she made the powers conferred
on her by the will of her husband
So much of her will as bears on this question is as follows:
" Second. I do hereby give, devise and bequeath to my beloved
daughter, Eliza McLaren Weir, one undivided one-half of two certain
tracts of land, described as follows: First, that certain tract of
land situated on the line of Travis and Hays counties, in the state
aforesaid, being the same tract occupied by me and my late husband,.
A. G. Weir, and known as the Manchaca place, being a survey of five
hundred and fifty-three and one-half acres for W. D. Miller, situated
on Onion creek, being the south half of one-quarter league No. 1,
granted to Josephus T. Irving. (Field notes omitted.) Second, a
parcel of land situated on Onion creek, in the counties of Hays and
Travis, in the state aforesaid, being a part of that portion of S. V.
R. Eggleston league, . . . and containing sixty acres of land,
more or less. (Field notes omitted.)
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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/m1/34/: accessed November 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .