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: 15
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1854.] . WEIR v. SMITH. 15
Opinion of the court.
for life in the property which by the fifth clause of the will of Mrs.
Weir is so devised to her, with remainder to her children. The like
devise by Mrs. Weir in the execution of the power must be held
The sixth, seventh, eighth and ninth clauses of Mrs. Weir's will,
however, do not refer to the will of her husband as the source of
the power which through her will she exercises, nor do they refer to
anything which is made subject to that power; on the contrary,
they exclude the idea that she intended thereby to execute a power
given by the will of her husband to dispose of property belonging
to his estate, in that therein she disposes of lands and personal
property to which she asserted title in herself. This is inconsistent
with her intention, through the clauses of her will referred to, to
execute the power given to her by the will of her husband. If she
had named, in these clauses, property embraced in the will of her
husband, then the question would arise, whether her disposing of
the property as her own would rebut the presumption of her intention
to execute the power given by her husband.
No such case, however, is presented; no property shown to belong
to her husband's estate is named in these clauses, and through
them she professes to dispose of her own property, and no presumption
arises from anything alleged in the petition that she intended to
execute the power given by her husband's will.
From this it follows that the will of Mrs. Weir did not dispose
of any of the property of her husband's estate except that which
is named in second, third, fourth and fifth clauses of her will;
and that all of the property of his estate, existing at the time of
the death of his wife, undisposed of, remains for equal distribution
between the children in accordance with the fifth clause of his will.
No inquiry arises, as the case is presented, whether evidence
dehors the will might be introduced to show the intention of Mrs.
Weir, by the clauses of her will under consideration, fully to execute
the power given by her husband's will.
For the error of the court in sustaining the demurrer to the petition,
the judgment of the court below is reversed, and the cause
REVERSED AND REMANDED.
[Opinion delivered June 3, 1884.]
Associate Justice WEST not sitting.
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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/m1/37/: accessed November 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .