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: 59
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1884.] ANIDERSON V. STOCKDALE. 59
Opinion of the court.
On the proposition that the stockholders were necessary parties,
they cited: Bank of U. S. v. Beverly, 1 How., 134; Sullivan v.
Portland & Kennebec R. R. Co., 4 Otto, 806; Estes v. Browning,
11 Tex., 237; Dunlap's Adm'r v. Wright, id., 597.
WATrS, J. Cor. APP.- According to the allegations in the petition,
Mrs. Anderson's will bore date May 30, 1860, and was probated
in 1866. It is also alleged that Fielding Jones, one of the
executors nominated in the will, died during the life of the testatrix
Mrs. Anderson, and that F. S. Stockdale qualified as executor, and
as such executor has conveyed the several tracts of land mentioned
in the petition. The point made and insisted upon is, that, as Jones
and Stockdale were nominated joint executors, that notwithstanding
Jones' death, Stockdale had no authority, acting alone, to execute
the trusts created by the will. So far as is necessary for the consideration
of the question presented, the following extract from the
will is deemed sufficient:
"I appoint my uncle, Fielding Jones, and my cousin, Fletcher S.
Stockdale, joint executors of this will, administrators of my estate
and guardians of the person and property of my son Philip, and
request them to accept the trust and office. It is moreover my will
and desire that the county court shall have no further cognizance
or control of my estate and its settlement than the registration of
this will, and that my said executors and administrators shall have
and exercise the fullest and most absolute control of my estate and
of the person and property of my son Philip, that is accorded and
permitted by law."
The doctrine that where a power is given to two or more persons
by name, without any words of survivorship, that it cannot be exercised
by the others alone, after the death or renunciation of any
one of the trustees, has been recognized and applied for ages. And
prior to the passage of the act of 21 Henry VIII., ch. 4, that doctrine
was applied by the English courts alike to executors and other
trustees. By the terms of that act executors were exempted from
that rule, as it was therein provided that the qualified and acting
executor may execute the will when the others "do refuse to take
upon him or them the administration and charge of the same testament
and last will wherein they be so named as executors."
At the date as well as the probate of the will of Mrs. Anderson
our statute provided: "When a will shall have been probated, it
shall be the duty of the court to grant letters testamentary to the
executor or executors appointed by such will, if any there be, or to
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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/m1/81/: accessed March 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .