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: 14
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14 WEIR v. SMITH. [Austin Term,
Opinion of the dourt.
" In Sloan v. Cadogan, it was declared by the master of the rolls,.
after a full discussion, to be settled, that a general disposition by
will would not include property over which the party had only a
power, unless an intention to execute the power could be inferred.
A will need not contain express evidence of an intention to execute
a power. If the will be made without any reference to the power,
it operates as an appointment under the power, provided it cannot
have operation without the power. The intent must be so clear that
no other reasonable intent can be imputed to the will; and if the
will does not refer to a power, or the subject of it, and if the words
of the will may be satisfied without supposing an intention to execute
the power, then, unless the intent to execute the power be
clearly expressed, it is no execution of it." 4 Kent, 335.
The rule thus stated is well sustained. Burleigh v. Clough, 52 N.
H., 267; Dunning v. Vandusen, 47 Ind., 423; Eaton v. Straw, 18 N.
.I., 320; Denson v. Mfitchell, 26 Ala., 361; French v. Hatch, 8 Foster,
331; Blagge v. Miles, 1 Story, 445; Jones v. Wood, 16 Penn.,
25; Funk v. Eggleston, 92 Ill., 515; Jarman on Wills, 628, and cases
cited; Sugden on Powers, 232, 364, 421-424; Bingham's Appeal,
64 Penn. St., 345; Tiedman on Real Prop., 563-569.
As before said, under the averments of the petition no presumption
can be indulged that Mrs. Weir had any interest whatever in
the property referred to in the will of her husband, except such as
she took under that will.
The property named in the second, third, fourth and fifth clauses
of her will is alleged to have belonged to Adolphus Weir at the
time of his death.
This being true, Mrs. Weir could have no interest which could
pass by the will; for her life estate ended at the same time the will
took effect; and as to the property named in the clauses of her will
referred to, the will would be inoperative, unless in execution of the
power conferred on her by her husband's will.
While her will does not refer to the power given by her husband's
will, it does apply to that which is made subject to that
power, through which alone, she having no interest, the will made
by her could operate. There is nothing in the clauses of her will
referred to, which bears evidence that she supposed she had an interest
in the lands devised, and we are of the opinion that those
clauses operate a valid execution of the power given to Mrs. Weir
by the fifth clause of her husband's will.
The power given to her by that clause is very broad, and under it
she might do what her husband could have done directly by his
own will. He might have so given to Mrs. Burleson only an 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/m1/36/: accessed November 19, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .