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: 54
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54 ANDERSON V. STOCKDALE. [Austin Term,
Statement of the case.
PHILIP ANDERSON V. F. S. STOCKDALE.
(Case No 1370.)
1. JOINT EXECUTORS-PARTIES-STATUTES CONSTRUED - WILL.-A will executed
in 1866 appointed two " joint executors " of the same, and guardians
of the property and person of the legatee; it contained the expression of a
desire that the county court should exercise no other control of the estate
than the registration of the will, and that the executors should exercise
" the fullest and most absolute control" of the estate and of the person and
property of the legatee, who was a minor, " that is accorded or permitted by
law." One of the parties named as executor died during tle life of the testatrix.
(1) The provisions of the act of 21 Henry VIII., ct. 4, which authorized a
qualified and acting executor to execute a will when other executors named
therein refused to act; were practically adopted by arts. 1268 and 1335;
hence, the general rule which required joint trustees to act together in the
execution of a power, has no application to executors appointed by will.
Citing Johnson v. Bowden, 43 Tex., 670, and Blanton v. Mayes, 58 Tex., 422.
(2) The doctrine above announced has its application also to executors who
are charged with the execution of the will independent of the control of
the probate court.
(3) The application of the rule is not affected by the fact that the testator
designated the executors named as "joint executors," or that one of the
executors died before the testatrix; one being dead, the survivor could execute
the trust alone.
(4) The power to sell real estate, when necessary to pay debts or execute
executory contracts of the testatrix, could be exercised in this case by the
executor under the general powers conferred by the will.. Beyond this no
power to convey real estate existed.
(5) The power to sell under such a will would not authorize an executor
to convey the land of the estate to a joint stock company and receive shares
of stock issued to himself in consideration for his deed to the land.
(6) When such a deed was executed the instrument creating the joint
stock company vested the title acquired under the deed in trustees, and it
was not necessary, in a suit by the legatee against the executor and the
trustees to recover the land, to make the stockholders of the company parties.
APPEAL from Calhoun. Tried below before the Hon. H. Clay
Plaintiff on the 17th of February, 1881, sued F. S. Stockdale, D.
C. Proctor and M. D. IMonserrate, the trustees of the Indianola
City and Land Company, a joint stock company, and T. C. Allen
and A. Schwartz, to recover of them property inherited from his
mother and devised to him by her last will, and also to recover of
Stockdale the value of such property as had been lost to plaintiff
by reason of Stockdale's alleged neglect and mismanagement of the
estate of Sarah F. Anderson, as her executor.
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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/m1/76/: accessed November 17, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .