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: 13
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1884.] WEIR v. SMITH. 13
Opinion of the court.
"Th/ird. I do give, devise and bequeath to my beloved daughter,
Monterey Virginia Weir, the remaining undivided one-half of the
two tracts of land described in the second provision of this will.
" Fourth. I do give, devise and bequeath to my beloved son,
Peter Weir, one equal undivided one-half of all that certain tract
of land lying and being situated in the county of Hfays and state
of Texas, bounded and described as follows: (Then follow the
field notes and description of four hundred and ninety-two acres of
the Trinidad Varcinas survey, which are omitted.)
" ifth. I do give, devise and bequeath to my beloved daughter,
Louisa Burleson, formerly Weir, for the term of her natural life,
with remainder over to her children, the remaining undivided onehalf
interest in the tract of land described in the fourth provision
of this will.
'Sixth. I do give, devise and bequeath to each one of my three
children, Peter Weir, Eliza MeLaren Weir, and Monterey Virginia
Weir, one-fourth of all the real estate belonging to me and not heretofore
devised to any, that is to say: that each one of the three
devisees last hereinbefore named shall each receive one undivided
one-fourth of said real estate not heretofore described.
" Seventh. I do give, devise and bequeath unto my beloved daughter,
Louisa Burleson, formerly Weir, for the term of her natural
life, with remainder over to her children, the remaining one undivided
one-fourth of the real estate described in provision sixth of
"Eighth. I do give and bequeath unto my beloved children,
Peter Weir, Eliza McLaren Weir, and Monterey Virginia Weir, share
and share alike, all my household and kitchen furniture and personal
property of every kind whatever, saving and excepting only money.
" Ninth. I do give and bequeath to my beloved daughter, Eliza
McLaren Weir, all money of which I may die possessed."
The rule in reference to the execution of powers either by deed
or will, and of construction, are so clearly stated by Chancellor
Kent that we cannot do better than to state it in his language:
" The general rule of construction, both as to deeds and wills, is,
that if there be an interest and a power existing together in the
same person, over the same subject, and an act be done without a
particular reference to the power, it will be applied to the interest,
and not to the power. If there be any legal interest on which the
deed can attach, it will not execute the power. If an act will work
two ways, the one by an interest and the other by a power, and the
act be indifferent, the law will attribute it to the interest, and not
to the authority, for fitio cedit veritati.
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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/m1/35/: accessed March 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .