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: 60
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60 ANDERSON V. STOCKDALE. [Austin Term,
Opinion of the court.
such of them as are not disqualified and are willing to accept the
trust and qualify according to law within twenty days after such
probate." Pasch. Dig., art. 1268.
It was in effect provided by art. 1335, Pasch. Dig., also then in
force, that where there was more than one executor named in the
letter and one or more of them refused to act, the others might return
an inventory, and should thereafter have the whole adininistration.
These provisions of our statute, it has been correctly held, engrafted
upon our probate system the principles of the act of 21
Henry VIIL, ch. 4. And as a sequence thereto, the doctrine that
joint trustees must act together in, the execution of the power has
no application to executors nominated as such, but that when one
or more of such executors are unable to act, or refuse to qualify, or
refuse to act, the others might qualify and execute the trust. Johnson
v. Bowden, 43 Tex., 670; Blanton v. Mayes, 58 Tex., 422.
As applied to what are termed independent wills the general
doctrine is subject to exceptions and limitations, dependent upon the
terms of the will. For an illustration of which, see Blanton v.
As an original question, the writer might doubt the application of
the doctrine to independent wills to that extent which would authorize
less than all the executors named to execute their provisions
independently of the probate court; still it must now be considered
as settled by the case of Johnson v. Bowden, that when there is
nothing in the terms of the will that indicates a different intention
upon the part of the testator, that doctrine applies with full force,
and such wills may be executed by a less number than all of the
executors nominated therein, under circumstances named in the
statute, independently of the probate court.
However, it is insisted that the language of the will now being
considered indicates that the testatrix intended that the two executors
nominated in the will should act together and in no other way.
This is claimed to result from the use of the word "joint'" in connection
with the nomination. But if that term had not been used,
and the two nominated had qualified under the will, they would
have been joint executors. So it would seem to follow that the testatrix
did not intend more by the use of that word than would have
been implied by law without its being used, The power is conferred
upon the executors as a class, to be exercised by virtue of their
office as executors. And it seems to be settled that, where the power
is thus conferred, it may be exercised by any one of the executors
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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/m1/82/: accessed July 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .